K.N. Singh, J.

1. This petition under Article 226 of the Constitution is directed against the order of the Judge, Small Causes Court, Nainital, dated 6-11-1981 and the order of the 1st Additional District Judge, Nainital, dated 10-5-1982, affirming the order of the Judge, Small Cause Court in revision.

2. Hukum Khan Petitioner filed a suit against Saidullah Khan for ejectment and recovery of arrears of rent from the building in dispute in the Court of the Judge, Small Cause Court, Nainital. On 1-6-1981, the trial Court passed an ex-parte decree against Saidullah Khan, Respondent. In pursuance of the ex-parte decree the Petitioner-landlord got the Respondent evicted from the building in dispute and obtained possession of the same on 2-7-1981. The Respondent filed an application under Order IX Rule 13 of the Code of Civil Procedure on 4-7-1981 before the trial Court for setting aside the ex-parte decree dated 1-6-1981 and he further made an application on that very day under Section 17 of the Provincial Small Cause Courts Act seeking permission to furnish security for the decretal amount on the allegation that the summons in the suit had never been served on him and he had come to know of the ex-parte decree on 2-7-1981 when he was dispossessed from the building. On that application the trial Court passed the following order:

Let Rs. 2000/- be deposited in cash by 14-7-1981 security in respect of the amount be furnished by the same date.

It appears that the Respondent could not furnish security or deposit cash by 14-7-1981. On his application, however, the trial Court extended time till 1-8-1981 for complying with the order dated 4-7-1981. The Respondent furnished security bond on 1-8-1981 for Rs. 3000/-. He also deposited Rs. 2000/- in cash. The trial Court accepted the same and issued notice to the Petitioner. The order of the trial Court dated 3-8-1981 is as under:

Security bond was filed on 1-8-1981 by applicant for permission to furnish security. Allowed security to the tune of Rs. 3000/- furnished. Keep on file. Issue notice to the opposite party fixing 27-8-1981 for objection and disposal.

In addition to the aforesaid order the trial Court further passed an order accepting the security bond furnished by the Respondent. The Petitioner filed objection on 17-10-1981 to the Respondents application for setting aside the exparte decree. In this objection he pleaded that the security was deficient by a sum of Rs. 200/-. The Respondent on that very date made an application seeking permission of the trial Court to furnish security for Rs. 200/- which according to him could not be furnished due to inadvertent error. The Petitioner objected to that application but the trial Court by its order dated 6-11-1981 allowed the Respondents application and permitted him to furnish additional security for a sum of Rs. 200/-. The Petitioner thereupon filed revision against the order of the trial Court dated 6-11-1981. The First Additional District Judge, Nainital, by his order dated 10-5-1982 dismissed the revision application and directed the trial Judge to proceed further in accordance with law. Aggrieved, the Petitioner landlord has challenged the validity of the aforesaid two orders.

3. While admitting the writ petition, a learned single Judge made the following observation:

Admit. Issue notice returnable within eight weeks. In view of conflicting decisions of this Court on the interpretation of Section 17 of the Provincial Small Cause Courts Act, it seems proper that the matter be considered by a larger Bench-See : AIR 1931 All 103; : AIR 1931 All 727; : AIR 1977 All 151 [LQ/AllHC/1976/410] ; : AIR 1977 All 390 [LQ/AllHC/1977/190] : 1979 ALJ 157; 1935 All 379 [LQ/AllHC/1934/242] ; : AIR 1930 All 830; : AIR 1951 All 420 [LQ/AllHC/1950/226] .

One of the question would be whether the provisions of Section 17 are mandatory. Another question to be considered is whether substantial compliance would be enough where full compliance had not been done to exercise the powers under Section 17. Papers of this case may be laid before Honble the Chief Justice.

In view of the aforesaid order of the learned Single Judge this petition has come before us for hearing.

4. Learned Counsel for the Petitioner urged that the provisions of Section 17 of the Provincial Small Cause Courts Act, 1887 are mandatory and its strict compliance is necessary. The Court had no jurisdiction to set aside the exparte decree without there being full compliance with the proviso to Section 17 of the. Counsel for the Respondent urged that substantial compliance of the proviso to Section 17 was sufficient and no strict compliance is necessary under the law. Both the Counsels cited a number of authorities in support of their contention. We do not consider it necessary to refer to these authorities in detail or to refer the same as in our opinion, having regard to the facts and circumstances of the case it is not necessary to adjudicate upon the question raised by the Counsel.

5. The Petitioners main grievance before the trial Court and the lower revisional Court was that the security furnished by the Respondent for the decretal amount was short by an amount of Rs. 200/- therefore the proviso to Section 17 was not complied with as full security for the decretal amount had not been given within 30 days. The proviso to Section 17 is as under:

17...

Provided that an applicant for an order to set aside a decree passed exparte or for a review of judgment shall at the time of presenting his application either deposits in 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.

Under the proviso the application for setting aside exparte decree can be entertained only if two conditions are satisfied, firstly, before presenting the application the applicant must deposit the amount due from him under the decree or he should furnish security in pursuance of the order of the Court on a previous application made by him. In Ram Bharose v. Ganga Singh : AIR 1931 All 727, a Full Bench considered the proviso to Section 17 of the Provincial Small Cause Courts Act and observed as follows:

A reasonable and practical interpretation of the Section is as follows:

(1) the applicant must within 90 days file his application either with cash or with a statement that he is prepared to give security (and in the latter case he may, of course, tender the security he proposes) and ask the direction of the Court.

(2) In the case where he wants to give security, if the Court refuses to direct security, he must deposit cash within 30 days, or his application will be rejected.

(3) If the Court agrees to direct security, then (a) it will consider the security already offered, if it has been so offered; or (b) name security to its satisfaction which must be filed within the 30 days.

(4) If the applicant does not in fact ask for a direction or if, though the applicant does ask for a direction, the Court does not in fact give any direction, but in fact the Court does issue notice, the Court shall be taken to have approved the deposit of cash of the security offered as the case may be.

(5) If filed within the 30 days and accepted by the Court expressly or impliedly by the issue of notice the application is a good application, though it will be open to the decree holder to challenge the nature and sufficiency of the security and to the Court under Order 9 Rule 9 to make such further condition as it thinks fit.

If the Court delayed in giving its direction or approving expressly or impliedly the security already tendered, so long that the period of limitation had expired before the applicant had fair opportunity of complying with the direction, then in a suitable case it would be open to the Court itself to consider and exercise the inherent powers reserved to it by Section 151.

The principles laid down in clauses 3 and 4 are fully applicable to the facts of the instant case. The trial Court directed the Respondent to furnish security and in pursuance of that order he deposited Rs. 2000/-- in cash and furnished security for Rs. 3000/-. The trial Court accepted the security bond as sufficient and issued notice to the Petitioner. Therefore, it must be held that the Court had approved the deposit of cash and the security offered by the Respondent. On the Petitioners objection that the security was short by a sum of Rs. 200/-the Court permitted the Respondent to furnish security for that amount which was complied by the Respondent. The trial Court had jurisdiction to extend time for furnishing security and as such the trial Court did not commit any patent error or exceeded its jurisdiction in passing the order dated 6-11-1981. The Additional District Judge rejected the Petitioners revision on the ground that no material irregularity had been committed by the trial Court and there was no defect of jurisdiction in the trial Courts order. There is no patent error in the impugned orders warranting interference by this Court under Article 226 of the Constitution.

6. In a writ petition where two opinions are possible and if one opinion is taken by the subordinate Courts it would not normally be a proper exercise of jurisdiction under Article 226 of the Constitution to interfere, specially where cause of justice is advanced and a party is afforded opportunity of hearing. For these reasons we do not consider it a fit case for interference.

7. In the result the petition fails and is accordingly dismissed, but there will be no orders as to costs.