Prakash Krishna, J. - (1.) THIS is tenant's petition. It arises out of restoration proceeding. It appears that the respondent Nos. 1, 2 and 3 instituted S.C.C. Suit No. 7 of 1999 for eviction of the petitioner and realization of rent and damages. The said suit was decreed ex -parte on 24th of April, 2000. An application under Order IX, Rule 13, C.P.C. was filed by the present petitioner to set aside the ex -parte decree on 15th of February, 2002. The said application has been rejected by both the Courts below on the short ground that the petitioner has failed to comply with the provisions of section 17 of Provincial Small Causes Court Act. Feeling aggrieved the present writ petitioner has been filed at the instance of the tenant. The Courts below have found that the petitioner did not annex the tender for depositing the decretal amount along with the application filed under Order IX, Rule 13, C.P.C. The further finding is that the said tender was inserted in the Court file afterwards. This finding has been seriously disputed by Shri Arvind Kumar Tiwari, the learned Counsel for the petitioner who submitted that the Courts below have approached the case with a wrong angle. He invited attention of the Court towards the endorsement made by the learned Counsel for the plaintiff respondent on the application that the tender already submitted by the tenant be countersigned by the Court. The Courts below have found that the factum of filing tender does not find place either from the index or from the application filed by the petitioner. Be that as it may, the learned Counsel for the petitioner submitted that section 17 of the Provisional Small Causes Court Act has been held to be directory. The said section has been enacted for the purposes to safeguard interest of the decree holder. Elaborating the argument he submitted that in any view of the matter the fact remains that the petitioner has deposited the entire decretal amount and as such approach of the Court should be justice oriented to do justice between the parties and the said application should not be thrown out on the ground of non -compliance of the provisions of section 17. The learned Counsel for the petitioner also expressed his willingness to deposit the amount which may be indicated by the Court towards the cost to compensate the respondent landlord. Reliance has been placed upon a judgment of this Court on Lal ji Sarraf v. Smt. Surya Kumari and others, 1999 (37) ALR 161. The learned Counsel for the landlord respondent submitted that the petitioners having failed to comply with the provisions of section 17 of the Provincial Small Causes Court Act, is not entitled for any relief. I have given careful consideration to the respective submission of the learned Counsel for the parties. This Court on numerous occasions has held that section 17 of the Provincial Small Causes Court Act is procedural in nature and is not mandatory. Reference can be made to Khurshid v. 1st Additional District Judge, 1988 (14) ALR 638. It has been held that intention of provision to section 17 is that when an ex -parte decree is sought to be set aside, the judgment -debtor has to deposit either, in cash, the amount due under the decree or give due security for the performance of the decree. The intention of the proviso is to secure the decree -holder. This provision has been enacted in order that the judgment -debtors, may not be delaying the proceedings and getting them decided ex -parte, ultimately, adversely affect the decree -holder because of the said delay. The further intent of this proviso is that before an application for setting aside an ex -parte decree is considered either the applicant deposits, in cash, or furnishes security. It is not the intention that even if the judgment -debtor deposits in cash and security then too, his application for setting aside the decree be not considered. In the circumstances, the use of the 'previous' application in the proviso is not mandatory but only directory. What the Court has to see at the time of examining the application for setting aside the ex -parte decree, is to ensure that either the decreetal amount has been deposited in cash or security has already been furnished. The making of the application for furnishing security before the making of the application for setting aside the ex -parte decree is not a mandatory requirement. The aforesaid case has been followed in other cases such as Narendra Kumar lain v. Gopal Krishna Mehrotra : 1998 (34) ALR 25. Coming to the facts of the present case no doubt there is a dispute between the parties as to when the tender was filed before the Trial Court. According to the petitioner it was annexed along with the restoration application while finding is otherwise. The said finding is basically a finding of fact but taking into account the fact that the petitioner has deposited the entire decreetal amount, it would not be appropriate not to consider the application under Order IX, Rule 13, C.P.C. The respondents may be compensated by awarding heavy costs to which the learned Counsel for the petitioner agreed. In this view of the matter, taking a pragmatic view of the controversy involved, it is desirable that the application filed by the petitioner under Order IX, Rule 13, C.P.C. may be heard and disposed of finally on the merits subject to the condition that the petitioner besides the amount already deposited, deposits a sum of Rs. 10,000/ - (Rupees ten thousands only) within 15 days from today before the Trial Court towards the cost which can be withdrawn by the plaintiff landlord. In case, the petitioner fails to deposit the aforesaid amount within the time stipulated above the writ petition shall stand dismissed.
(2.) WITH the aforesaid direction the writ petition is allowed in part, as indicated above. No order as to costs.;