D.K. Seth, J.-

Leave is granted to; amend the cause title so as to convert this petition into one under Article 227 of the Constitution.

2. The petitioner, as plaintiff, instituted Suit No. 18 of 1989 against the respondent No. 3, herein as defendant in the Court of Munsif City/Judge Small Cause Courts, Farrukhabad, for ejectment on the ground of default in payment of the rent. By an order dated 3-10-1989 the said suit was ordered to be proceeded ex pane. Ultimately the suit was decreed ex pane on 11-1-1990. One Ghulam Rabbani filed suit No. 220 of 1990 against the plaintiff herein and the defendant-respondent No. 3 herein as defendants for declaration that ex pane decree dated 11-1-1990 is a nullity and void. In the said Suit No. 220 of 1990 the defendant-respondent No. 3 herein made an application on 8-9-1990, praying for time for filing written state­ment. The petitioner alleged that it was the defendant-respondent No. 3 herein who got the said suit No. 220 of 1990 filed through Ghulam Rabbani to avoid execution. After having found that the purpose would not be achieved through the said suit the respondent No. 3 on 2-4-1991 filed an application for setting aside ex pane decree under Section 17(1) of the Provincial Small Cause Courts Act together with an application under Section 5 of the Limitation Act.

3. The plaintiff filed his objection to the said two applications. But, however, by an order dated 28-4-1992 the learned Munsif, condoned the delay and allowed the application under Section 17 of the Act setting aside ex pane decree. The petitioner then preferred Revision No. 11 of 1992 before the learned District Judge, against the said order dated 28-4-1992 which was ultimately allowed by an order dated 4-12-1992 by setting aside the order dated 28-4-1992. The learned Dis­trict Judge in his order dated 4-12-1992 was pleased to observed that the respon­dent may file requisite deposits to the satisfaction of the trial Court, if permitted by the trial Court. Against this observation in the said order, a Writ Petition No. Nil of 1993 was moved by the petitioner. The said writ petition was disposed of by an order dated 15-1-1993 by allowing the petitioner to contest the depositing the amount of security while observing that the defendant shall have to satisfy the trial Court that even at this belated stage the security could be deposited. Thereupon the defendant filed an application for permitting him to file security to which the petitioner had filed his objection. It is contended by the petitioner that no fresh application for restoration, however, has been filed, by the defendant, inasmuch as restoration application moved on 2-4-1991, registered as 5/74/91 and re-numbered as 15/71/92 was the application which was being decided by an order dated 13-5-1993. By the said order dated 13-5-1993 the learned Munsif had allowed the ap­plication of the defendant by condoning the delay and setting aside ex pane decree rejecting the petitioner's objection after allowing the deposit of security of the petitioner. The petitioner's Revision No. Nil of 1993 was dismissed by the District and Sessions Judge, Farrukhabad, by an order dated 27-5-1993, affirming the order dated 13-5-1993. It is against this order dated 27-5-1993 affirming the order dated 13-5-1993 which are under challenge in the present petition.

4. Learned counsel for the petitioner contends that in view of Section 17 of the Provincial Small Cause Courts Act (hereinafter referred to as the Act) the application for setting aside of a decree is to be presented upon depositing the decretal amount or upon furnishing security for performance of the decree as directed by the Court on the previous application. In the present case the application has not been proceeded either by any deposit or by any previous application or any direction for furnishing the security. The provision of section 17, according to him is mandatory. The non-compliance thereof makes such application non-maintainable. Secondly, he contends that the defendant had knowledge about the said decree which is apparent by filing of the Suit No. 220 of 1990, which he got filed through Ghulam Rabbani. Even if the said proposition is not accepted even then the defendant had knowledge of the ex parte decree as soon he appeared in Suit No. 220 of 1990. By no manner his knowledge could be placed at a date later than 8-9-1990 on which date he had applied for time for filing the written statement in Suit No. 220 of 1990. Therefore, filing of the application on 2-4-1991 is wholly belated and no amount of explanation could be put forward, to obtain condonation therof. Therefore, according to him both the learned courts below have acted illegally and within material irregularity and wholly without jurisdiction in allowing the defendant's application.

5. Learned counsel for the defendant-respondent No. 3 on the other hand contends that in view of the order dated 4-12-1992 which was not interfered with by the order dated 15-1-1993 passed in Writ Petition No. (sic) of 1995 and the obser­vation made in the said order dated 15-1-1993 the defendant is entitled to deposit the said amount and, therefore the orders impugned are valid and legal, lie further contends that as soon the order is set aside by order dated 4-12-1991 the parties were reverted back to the same situation, namely, to square and and, therefore, the petitioner was entitled to present a fresh application under Section 17 of the Act upon compliance with the deposit. Since the deposits have been made though be­latedly, therefore the same should be accepted as substantial compliance,

6. In order to appreciate the situation it is necessary to refer to Section 17 of the said Act which runs as under:

"17. Application of the Code of Civil Procedure.-(1) The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908) shall save in so far as is otherwise, provided by that 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 pane 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 of 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 proviso 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)."

The Proviso to sub section (1) of Section 17 lays down two conditions for making an application for setting aside ex pane decree or for review of the judg­ment, the first condition is that at the time of presenting the application the ap­plicant should deposit the amount due from him under decree. The second condi­tion enables the applicant to furnish security at the time of presenting such an application provided he obtains a directions from the Court on an application made previous to the presentation of the application for settings aside ex pane decree, permitting the applicant to deposit such security.

7. A plain reading of the said section makes it clear that the condition is a must and, as such, mandatory because of the expression 'shall* used in the said proviso making only two alternates without providing any relaxation or exemption. When the intention of the Legislature is explicit in an unambiguous expression used in the legislation, it is not necessary to read something else which is altogether absent in the Statute and import a different meaning thereto.

8. Therefore, it is clear from the reading of the said proviso that in order to present an application for setting aside ex pane decree the applicant has to fulfill the said two conditions without which there can not be any valid presentation of any such application. If there is no valid presentation the court can not assume jurisdiction. Therefore, the question goes to the root of assuming the jurisdiction. In case the Proviso is not complied with the court can not assume jurisdiction. In as much as in absence of compliance of the said conditions in the eye of law there is no application.

9. Learned counsel for the respondents attempted to contend that the deposit may be made or security may be furnished afterwards and if the court is satisfied and accepts the same in that event the same can not be interfered with by the superior Court. According to him since the order setting aside ex pane decree has been set aside by the Revisional court, therefore, the learned Munsif exercises juris­diction right at the initial stage. Therefore any deposit made before the application is decided would be substantial compliance of the Proviso to Section 17. He relies on the decision in the case of Mananand Maheshwari and another v. U.P. State Electricity Board and another, 1992 (2) ARC 41, and contended that the court in spite of deficient amount has set aside the ex pane decree which was challenged. But upon finding that thereafter the defendant had deposited more than the defi­cient amount after setting aside of the decree, namely, when the deficiency' was made good, though at a later stage, yet it can not be said that there was no com­pliance of the Proviso. But the ratio decided in the said case does not help him. In asmuch as in the said case the deposit was made short by 300 on 15-1-1980 and the application under Section 17 of the Act was made on 15-2-1980, though deficit but the deposit had preceded the application.

10. Sri D.R. Chaudhary learned counsel for the respondent No. 3 then relied on the decision in the case ofHukum Khan v. 1st Additional District Judge, 1983 (1) ARC 438. In the said case the application had made an application for setting aside ex parts decree on 4-7-1981 alongwith the application seeking permission to furnish security for the decretal amount. On the said application for furnishing security by an order dated 4-7-1981 the trial Court directed the applicant to deposit Rs. 2,000 by 14-7-1981 and the security in respect of the balance amount on the same date. The respondents could not furnish the security or deposit the cash by 14-7-1981, the trial Court OR the application, extended time till 1-8-1981. On which date the applicant deposited Rs. 2,000 in cash and furnished bond for Rs. 3,000. Learned court thereupon accepted the said deposit and the security and only thereupon had issued notices to the respondents. Therefore, in the present case the application was not presented alongwith previous application for permitting to furnish security. Therefore the ratio decided in the said case by which it was held that the court has power to extended' time for furnishing security and allowed the deficit of Rs. 200 by depositing later can not come to any help to support the contention of Sri Chaudhary, in the facts and circumstances of the present case. He then relied upon a decision in the case of Rais Ahmad v. Tarn Chandra Kesharwani, 1984 (2) ARC 13. The said decision also does not support the contention of Sri Chaudhary in the given facts of this case. Inasmuch as in the said case application for setting aside ex pane decree was presented within thirty days alongwith the application for permis­sion to furnish security in respect of the amount due under decree. The court in­stead of passing order regarding depositing of any amount or furnishing of security issued notices to the plaintiff requiring him to file objection. In the process whereof three months time had passed and after that period of three months the court directed the applicant to furnish security, which was deposited. In the said case it was held that it was the court which gave a direction after expiry of one month's time. Therefore the defendant cannot be penalised and such contention was accepted as fulfilment of the requirement of the Proviso.

11. Sri Chaudhary, then relied on para 17 of the decision in the case of Dullan Prasad v. Smt. Rajeshwari Bibi, AIR 1977 All 151, which runs as under:

"On an analysis of the cases cited above, it is quite apparent that once the application for depositing cash security was accepted by the court there was sufficient compliance of the requirements of second part of the proviso and even if the security furnished by the applicant was a little less than the decretal amount but if it satisfied the court no exception, in my opinion, can be taken to any defecit in the deposit of the cash security amount"

.

In the said case the application for setting aside ex pane decree was filed on 30-1-1974 alongwith the application seeking permission to deposit security and deposited a sum of Rs. 924 in the court as cash security. On these facts after analysing various cases the above observation was made in para 17, quoted above. The said proposition also clearly lays down that if the application for depositing cash security is accepted though there was short deposit, still then it can be said to be sufficient compliance but then such an observation was made on the basis of the facts of the said case, where deposit was made at the time of presentation of the application itself. Therefore the said case does not help Mr. Chaudhary.

12. Then he refers to the decision in the case of Mrs. Mashi Das and others v. Court of Additional District Judge and others, 1992 (1) Vol (19) ALR 529. In the said case ex pane decree was passed on 5-5-1987 and the application for setting aside the said decree was made on 6-5-1987 and before the notices were issued the applicant made an application on 14-5-1987 for permitting to submit bond in compliance of the proviso to Section 17 of the Act, showing receipt that the applicant had sent a sum of Rs. 975 through Money Order before the ex pane decree was passed and the said money order was received by the plaintiff on 21-4-1986. whereupon by an order date 14-5-1987 the court permitted the defendant to deposit half of the decretal amount in cash and furnish security for the balance half by 10-7-1987. The court, however, had granted certain time to furnish security after ascertaining the decretal dues which was complied with before the application for setting aside ex pane could be proceeded with. Therefore, this judgment also does not come to any help to support the contention of Sri Chaudhary.

13. On the other hand the decision in the case of Dullan Prasad (supra) it has been held

"Whether the applicant has complied with the requirements of the provisions of Section 17 of the Provincial Small Cause Courts Act is a question on which depends the jurisdiction of the court. If there has been non-compliance the court has no jurisdiction to entertain the application. Now if the revisional court has misconstrued the provisions of section 17 and thereby failed to exercise the jurisdiction vested in it this court can certainly enter into the question and find out whether there has been compliance of it because that would be a jurisdiction fact and it would always be open to a revisional court under Section 115, C. P.C. To see whether the jurisdictional fact has been correctly decided"

.

14. In the present case, admittedly, there was no compliance of the proviso to Section 17 of the Act. Inasmuch as no application for permission to deposit the decretal amount or to furnish security was either moved previous to the application for setting aside ex pane decree or presented alongwith the same nor any such attempt was made by the defendant before the notices were issued nor there is any question of the court's error to issue notice without passing any order upon such an application for permission to deposit or to furnish security. Therefore the question of substantial compliance can not be said to have been arisen.

15. In the case of Mohd. Yaseen v. Jai Prakash, 1989 (1) AWC 17, it has been held while dealing with Section 17 of the said Act that, in case requirement of the said Proviso are not satisfied the court has no further jurisdiction left to pass any order with regard to furnishing of security or to allow the defendant to pay the decretal amount later on.

16. In the case of Ram Chandra v. IX Addl. District Judge, 1991 AWC 670, it has been held,

"the deposit of the amount due from the petitioner under the decree was to be made at the time of presentation of application under Order IX, Rule 13 of the Code of Civil Procedure. No deposit was made either before presentation or at the time of presentation of the application Under Order IX, Rule 13 of Code of Civil Procedure. Consequently the application filed by the petitioner on 7-11-1984 would be of no value because it is not in compliance of the Proviso to Section 17 of the Provincial Small Cause Courts Act"

. In the said case admittedly application under Order IX, Rule 13 of the Code of Civil Procedure was filed on 3-7-1984.

17. In the present case the fact discloses that the defendant was never diligent nor he had applied within reasonable time for permission to deposit or furnish security and setting aside of the order does not reopen the matter. The order dated 4-12-1992 can not create jurisdiction in the learned Munsif when he had none. On the setting aside of the order it does not amount that the application would be deemed to have been made on a date after the order was set aside. The order passed by this Court in the Revision on 15-1-1993 can not have the effect of per­mitting the defendant to make any such application, which grants liberty to the plaintiff to oppose the prayer while the defendant was required to satisfy the trial court that even at this belated stage he could deposit the security. Even on facts no bona fide could be shown by the defendant. In that view of the matter I am unable to accept the contention of Sri Chaudhary. Therefore, this writ petition succeeds and is allowed. The impugned orders are hereby set aside.

18. There will be, however, no order as to costs.

Petition allowed.