V.K.SHUKLA, J. - (1.) IN the present case, petitioner has been tenant of premises in question. Proceeding for ejectment has been initiated against the father of the petitioner and in the said proceedings so initiated in the shape of JSCC Suit No. 8 of 2001 in the Court of Judge Small Causes, Gorakhpur petitioner's father did not appear to participate in the said proceeding and ultimately he died on 14.10.2001 and thereafter substitution proceedings were undertaken and steps were undertaken for effecting service upon petitioner and then ex parte decree was passed on 18.1.2007 for ejectment. Petitioner after acquiring knowledge of the same moved an application under Order IX Rule 13of C.P.C. for setting aside ex parte decree. Said application has been rejected on 28.7.2008 by the Judge Small Causes for non-compliance of Section 17 of Act No. 9 of 1987 and against the same present writ petition has been filed.
(2.) SUPPLEMENTARY affidavit has also been filed appending therein copy of the reply dated 26.9. 2000, photocopy of the notice dated 4.1.2001 and copy of its reply dated 25.1.2001 and receipt of last deposit. Learned counsel for the petitioner Sri R.U. Ansari, contended with vehe­mence that Section 17 of Provincial Small Cause Courts Act, 1887 is directory in nature and its non-compliance would not have ipso facto resulted in dismissal of application under Order IX Rule 13 of C.P.C. as such liberty be accorded to com­ply with the provision as contained under Section 17 of Provincial Small Cause Courts Act, 1887 if any taking liberal view in the matter and further here deposit under Section 30(1) of U.P. Act No. XIII of 1972 was already there which could have been conveniently treated as security and as such writ petition be allowed.
(3.) IN order to appreciate respective arguments which has been advanced Section 17 of Provincial Small Cause Courts Act, 1887 is being looked into. "Section 17. Application of the Code of Civil Procedure.-(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 oil 908) shall save in so far as is otherwise provided by the Code or by this Act, be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits : Provided that an applicant for an order to set aside a 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 application made by him in this behalf have directed. (2) Where a person has become liable as surety under the provision to sub-section (1) the security may be realised in manner provided by Section 145 of the Code of Civil Procedure, 1908 (5 of 1908)." ;