Prakash Krishna, J. - (1.) THE landlord-applicant instituted S.C.C. Suit No. 35 of 2004 for recovery of arrears of rent, damages and ejectment of defendant-tenant from Shop No. 3 situate in House No. 33/127, Gaya Prasad Lane, Meston Road, Kanpur Nagar on the allegations that the defendant-tenant has failed to pay the rent in spite of service of notice determining the tenancy.
(2.) THE suit was decreed ex parte as the defendant-tenant failed to appear and contest the suit, for recovery of arrears of rent due from 16th September, 2003 to 15th October, 2003 at the rate of Rs. 1800/- per month and from 16th October, 2003 to 22nd April, 2004 at the rate of Rs. 200 per day as damages, total Rs. 38,000/- and for future damages at the rate of Rs. 200/- per day alongwith costs of the suit by the judgment and decree dated 22nd May, 2005. On 23rd January, 2006, an application to set aside the ex parte decree under Order 9 rule 13 C.P.C., was filed by the defendant-tenant. On the next day, another application dated 24th January, 2006 was presented with the prayer that the enclosed tender be passed by the Court and the tenant may be permitted to deposit the decretal amount. It was stated that in pursuance of the ex parte decree, a writ for delivery of possession has been issued in Execution Case No. 3 of 2005 which has been received by the Amin wherein 27th January, 2006 is the date fixed. The defendant-tenant deposited Rs. 43,710/-on that date. The application for setting aside the ex parte decree was opposed by the landlord-applicant on number of pleas including that the said application is not maintainable as the defendant-tenant has not complied with the proviso to Section 17 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "the Act'). It was stated that the defendant-tenant has not deposited the entire decretal amount as was required under the ex parte decree. There being no application either for condonation of delay in making the deposit of the balance amount nor there is application for furnishing security, the application for setting aside the decree is liable to be dismissed as not maintainable.
(3.) A report with regard to amount due under decree was called for from the Munsarim by the Court. He reported that a sum of Rs. 1,73,510/- is due under the said decree, for the period upto 23rd January, 2006. Thereafter, on 25.9.2006, an application under Section 17(1) of the Act was filed with the prayer that the defendant-tenant may be permitted to furnish the security for the damages for the period 22nd May, 2005 to 31st January, 2006 at the rate of Rs. 200/- per day amounting to Rs. 53,400/-. Subsequently, another application dated 11th October, 2006 was filed for condonation of delay in filing the security or decretal amount on the allegations that the said security is being furnished to meet the objection of the landlord-applicant. The Court below by the order under revision has allowed the application under Order 9 Rule 13 C.P.C. and set aside an ex parte decree dated 22nd May, 2005. It rejected the contention of the landlord- applicant that proviso to Section 17 of the Act was not complied with in its letter and spirit. The decision of the Apex Court in the case of Kedarnath v. Mohan Lal Kesarwari and others, JT 2002 (1) SC 82, relied upon by the landlord-applicant was distinguished on the ground that in the said case, the tenant was evicted by the time. By the order under revision, he accepted the security furnished by the defendant-tenant in respect of deficient amount and condoned the delay in its filing.;