Prakash Krishna, J. - (1.) RAISING a short controversy, the present writ petition is at the instance of landlord who instituted SCC Misc. Case No. 7 of 1995 against the respondent No. 2, the tenant for recovery of arrears of rent, damages and ejectment on the ground of default. The suit was decreed ex -parte on 7.9.1995. An application to set aside ex -parte decree was filed by the respondent No. 2 -tenant on 18.10.1995. Since the suit was of small cause notice, an application under section 17 of the Provincial Small Causes Courts Act for permission to file 'security bond' was filed on 14.11.1995. The security bond was filed on 16.11.1995. The Trial Court rejected the application for setting the ex -parte decree on the short ground that no application for condonation of delay in filing respondent application was filed. Moreover, the security furnished by the tenant -respondent was beyond time. Feeling aggrieved against the aforesaid order, Civil Revision No. 256 of 1997 was filed by the respondent No. 2 which has been allowed by the impugned order dated 10.12.1997 on the ground that the defendant -tenant had virtually complied with the order of the Court and, therefore, there had been no serious lapses on the part of the defendant. Sri P.K. Jain, learned Counsel for the petitioner, in support of the writ petition, submitted that the Revisional Court exceeded in its jurisdiction in allowing the revision without addressing itself to the points involved in the revision. He invited attention of the Court towards para 8 of the writ petition wherein it has been stated that the security was not furnished within the time, even if the case of the defendant is that he got notice on 11.11.1995, the security was not registered, the security was furnished only for a sum of Rs. 9,000/ -whereas the decretal amount is more than Rs. 12,000/ - and there was no application for condonation of delay.
(2.) THE learned Counsel for the respondent disputed the aforesaid contention of the learned Counsel for the petitioner and submitted that all these points are no longer open to the petitioner as the Revisional Court has exercised jurisdiction vested in it in setting aside the order passed by the Trial Court whereby the application under Order 13, Rule 9, C.P.C. was rejected. I have given careful consideration to the respective submissions of the learned Counsel for the parties. A perusal of the impugned order shows that the Revisional Court has decided the revision with the observation that the provision to section 17 of the Provincial Small Causes Courts Act is only an enabling provision for procedural application of the same and while applying the proviso one should apply it liberally. The said observation of the Revisional Court cannot be sustained in view of the authority and pronouncements of the Apex Court in Kedarnath v. Mohan Lal Kesarwani and others : 2002 (1) ARC 186, wherein the Apex Court has held as follows: - - 9. A bare reading of the provision shows that the legislature have chosen to couch the language of the proviso in a mandatory form and we see no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex -parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the Court of the amount due from the applicant under the decree or in pursuance of the judgment. The provision as to deposit can be dispensed with by the Court in its discretion subject to previous application by the applicant seeking direction of the Court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. We think that it may be filed at any time up to the time of presentation of application for setting aside ex -parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the Court to make a prompt order. The delay on the part of the Court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the Court.
(3.) APART from the above, even if it is taken that in such matters, the Court should take a liberal view, the Revisional Court has exceeded in its jurisdiction in straightway setting aside the order passed by the Trial Court rejecting the application filed under Order 9, Rule 13, C.P.C. and also setting aside the ex -parte dated 7.9.1995. In any case, after recording the aforesaid findings, the Lower Court ought to have restored the matter to the Trial Court to decide the application filed under Order 9, Rule 13, C.P.C. The order of the Revisional Court is cryptic one and there is insufficient discussion in the judgment of the Revisional Court on relevant points which were involved before it.;