- (1.) Heard. Since pleadings are complete, the Court proceed to decide the case finally at this stage under the Rules of the Court. The dispute relates to a shop situated at village Tatarpur Laluwala, Mohalla Adarsh Nagar, Najibabad, District Bijnor. The shop is owned by petitioners and respondent Nos. 2 and 3. The aforesaid shop was let out to respondent No. 1. Claiming that construction of shop was made in 1989, provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") are not applicable and since there was a default in payment of rent for more than two years i.e. from 1.9.1998, petitioners and respondent Nos. 3 and 4 vide notice dated 8.2.2001 determined tenancy of respondent No. 1 and thereafter filed suit No. 75 of 2002 for ejectment and recovery of arrears of rent. It was decreed ex parte by the Court of Small Cause, Bijnor vide judgment dated 9.5.2003.
(2.) The respondent No. 1 filed an application dated 21.5.2003 under Order IX, Rule 13 C.P.C. for setting aside ex parte decree, which was registered as Misc. Case No. 19 of 2003. It was neither accompanied by deposit in the Court the amount due from defendant-applicant i.e. respondent No. 1 under the decree nor any security for performance of the decree nor any application for furnishing such security. In other words there was no compliance of Section 17(1) of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887").
(3.) Subsequently on 28.10.2003 respondent No. 1 filed an application under Section 17 of Act, 1887 seeking permission of Trial Court to furnish security of Rs. 9,600/- and deposit of Rs. 8003/- by Tender since according to him total amount under decree would come to Rs. 17,603/-. The Trial Court, vide order dated 5.12.2003 permitted the deposit by tender subject to the rights of the parties. Besides above, respondent No. 1 also filed an application under Section 5 of Indian Limitation Act seeking condonation of delay in filing application for compliance of Section 17 of Act, 1887.;