- (1.) HEARD learned counsel for the par ties.
(2.) THIS writ petition, moved under Article 226 read with Article 227 of the Constitution of India, is directed against order dated 30-07-2005 (copy Annexure-9 to the writ petition) passed by respondent No. l in Misc. Case No. 05 of 1999, whereby the application of the petitioner for condonation of delay in making deposit as required under Section 17 of the Provincial Small Cause Courts Act, 1887, was rejected. Brief facts of the case, are that a S. C. C. Suit No. 30 of 1995 appears to have been decreed ex-parte on 24-10-1998. The defendant (present peti tioner) moved an application under Order 9 Rule XIII of the Code of Civil Procedure, 1908 on 26-07-1999 for, setting aside the said decree without making compliance of Proviso to Sec tion 17 of the Provincial Small Cause Courts Act, 1887. Section 17 of said Act, reads as under :. . "17. Application of the Code of Civil Procedure. (1) The procedure pre scribed in the Code of Civil Proce dure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure fol lowed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits: 2 Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech Provided that an application for an order to set aside aa decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous applica tion made by him in this behalf, have directed. (2) Where a person has become li able as surety under the Proviso to sub-section (1), the security may be realized in manner provided by Sec tion 145 of the Code of Civil Pro cedure, 1908. " In view of the principle of law laid down in Kedar Nath Vs. Mahesh Lal Keserban; 2002 (1) UC 330, in which Hon'ble Supreme Court has held that the compliance as required under Proviso to Section 17 of the aforesaid Act is mandatory. Learned counsel for the petitioner drew my at tention to the principle of law con tained in Vishwa Nath Singh Vs. Gopal Singhal; 1986 (1) Allahabad Rent Cases 102 and Surendra Nath Mittal Vs. Dayanand; 1985 (2) Allahabad Rent Cases 517 and ar gued that the Court can condone the delay in making the compliance of Proviso to Section 17 of the Provin cial Small Cause Courts Act, 1887. On examination of Vishwa Nath Case (Supra), it was found that the deposit was made in said case but the same was short and the court permitted the party to make good the shortage in deposit required under aforesaid Sec tion 17. In Surendra Nath Mittal's case (Supra) also deposits were made but the same were found to be short and the defendant was permitted to Procedure, 1908 was moved on 26-07-1999 and neither any deposit is made that day, nor any application for permitting to furnish security was sought. Not only this, even after the objections were filed on 04-12-2000 by the plaintiff, in which he raised the objection that compliance of Section 17 was not made by the defendant, the defendant still slept over the mat ter and moved application only on 09-01-2002 for condoning of delay to de posit the amount required under Pro viso to Section 17 of the Provincial Small Cause Courts Act, 1887. It is stated in said application that it oc curred to the defendant on 04-01-2002 that compliance of aforesaid proviso is to be made. The same cannot be said to be a valid explanation / reason for non- compliance of the above provision.
(3.) LEARNED counsel for the peti tioner drew my attention to the im pugned order and argued that the learned Judge, Small Causes Court / Civil Judge (Senior Division) has re jected the application under the as sumption that the deposit was not made> with the application for condonation of delay. Perusal of page No. 59 to the petition shows that the defendant did make deposit on 10th January, 2002, but the said deposit cannot be said to be a valid deposit. Even otherwise, there was no sufficient ground to condone the delay as even after objections were filed in 2000 by the plaintiff, defendant remained slept over the matter till January 2002 and did not make any deposit under Sec tion 17 of the aforesaid Act, which was a mandatory requirement to be com-plied-with, with the application under Rule 9 Order XIIi of the Code of Civil Procedure, 1908. Create PDF with GO2pdf for free, if you wish to remove this line, click here to buy Virtual PDF Printer This Software is licensed to: :-REg Copyright Capital Law Infotech In the circumstances, in view of the above discussion, the petition is devoid of merits, and the same is dis missed in limine. .;