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PETITIONER: BIMAL CHAND JAIN

       Vs.

RESPONDENT: SRI GOPAL AGARWAL

DATE OF JUDGMENT27/07/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1657            1982 SCR  (1) 124  1981 SCC  (3) 486        1981 SCALE  (3)1099

ACT:      Civil Procedure Code Rule 5 Order XV-Default in payment of arrears  of rent  during the  pendency of  suit-Court  if competent to strike off defence.

HEADNOTE:      Rule 5  of Order  XV C.P.C.  was re-enacted by the U.P. Act 1976  and it  provided that  the defendant shall deposit the entire  amount  of  rent  due  from  him  together  with interest at  or before  the first  hearing of  the suit  for eviction and  also continue  to deposit  the monthly  amount regularly and  that on  failure to  do so,  his defence  was liable to  be struck  off. Another rule provided that before striking  off  the  defence,  the  Court  may  consider  any representation made in that behalf.      The respondent  filed a  suit against the appellant for ejectment and  recovery of  arrears of  rent. The  appellant filed written statement and resisted the suit. The appellant during  the  pendency  of  the  suit  committed  default  in depositing the  rent  regularly  and  the  respondent  filed application under  Rule 5  Order XV  C.P.C. for striking off the appellant’s  defence. The  appellant attempted  to  show that he had been depositing the rent as required by law. The trial court  accepted the  application  and  held  that  the appellant had failed to make any representation permitted by him under  sub-rule (2)  of Rule  5 of Order XV within time. The trial  court accordingly  struck off the defence and the High Court  affirmed the  order of  the trial  court on  the ground that  where no representation was made or if made was filed beyond  time, the  Court was  bound to  strike off the defence and enjoyed no discretion in the matter.      Allowing the Special Leave Petition, ^      HELD: An  order under  sub-rule (1)  striking  off  the defence  is   in  the   nature  of   a  penalty.  A  serious responsibility rests  on the  court in  the matter  and  the power is  not to  be  exercised  mechanically.  There  is  a reserve of  discretion vested  in the court entitling it not to strike  off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. It will always be a matter for the judgment of the

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court  to   decide  whether   on  the  material  before  it, notwithstanding the  absence of  a representation under sub- rule (2),  the defence  should or  should not be struck off. The word  "may" in  sub-rule (1)  merely vests  power in the court to strike off the defence. It does not oblige it to do so in every case of default. [128 C-D] 125      Puran Chand  v. Pravin Gupta, Civil Revision No. 356 of 1978 decided on October 30, 1980 All. H.C. overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1759 of 1981      Appeal by  special leave  from the  judgment and  order dated 3rd  December, 1980  of the  Allahabad High  Court  in Civil Revision No. 525 of 1980      F.S. Nariman and K.K. Mohan, for the Appellant.      R.K. Garg,  Pramod Swarup and Sunil Kumar Jain, for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.  In a suit for ejectment of a lessee and for recovery of  arrears of  rent,  does  the  court  enjoy  any discretion not  to  strike  off  the  defence  in  case  the defendant has  defaulted in depositing the rent and has also failed to make any representation within the terms of Rule 5 of Order  XV, Code  of Civil  Procedure?  That  question  is raised in  this defendant’s  appeal by special leave against an order of the Allahabad High Court maintaining in revision that the  trial court has no discretion in the circumstances but must strike off the defence.      The respondent  as lessor  filed  a  suit  against  the appellant as  lessee for  his ejectment  and for recovery of arrears of rent. The appellant filed a written statement and resisted the  suit. During  the pendency  of  the  suit  the respondent filed an application praying that the appellant’s defence be struck off in view of Rule 5 of Order XV, Code of Civil Procedure,  inasmuch as  the appellant  had  committed default in  depositing the  rent  regularly.  The  appellant opposed the  application and  attempted to  show that he had been depositing  the rent  as required by the law. The trial court held  that while  the rental  arrears admitted  by the appellant to  be due  had been  deposited in accordance with the relevant  provision of  sub-rule (1)  of Rule 5 of Order XV, he  had failed  to make  regular deposits of the monthly rent accruing during the pendency of the suit as required by the other  provision of  the said Rule. The trial court also noted  that   the  appellant   had  failed   to   make   any representation permitted  him by  sub-rule (2)  of Rule 5 of Order XV  within the  time  prescribed  in  that  provision. Following a ruling of the Allahabad High Court 126 that in  those circumstances the court was obliged to strike off the  defence, that  trial court  did exactly  that.  The appellant applied  in revision  to the  High Court,  and the High Court, in view of the view taken by a Division Bench in Puran Chand v. Pravin Gupta, affirmed the order of the trial court.      Rule 5  of Order  XV,  Code  of  Civil  Procedure,  was enacted by  the U.P.  Civil Laws  (Amendment) Act  1972.  It provided that  unless the  defendant deposited  the admitted rent or  compensation at  or before the first hearing of the suit and  also deposited  the monthly  rent  regularly,  his defence was  liable to  be struck  off. There  was a further

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provision entitling a defendant to make a representation and obtain further  time to  make  the  deposit.  The  Rule  was repealed by  U.P. Act  No. 57  of 1976 and was re-enacted as follows:           "Striking  off   defence  an  failure  to  deposit      admitted rent, etc.-(1) In any suit by a lessor for the      eviction of  a lessee  after the  determination of  his      lease  and  for  the  recovery  from  him  of  rent  or      compensation for  use  and  occupation,  the  defendant      shall, at  or before  the first  hearing of  the  suit,      deposit the  entire amount  admitted by  him to  be due      together with  interest thereon at the rate of nine per      cent per  annum and whether or not he admits any amount      to be  due, he shall throughout the continuation of the      suit deposit  the monthly amount due within a week from      the date of its accrual and in the event of any default      in making  the deposit of the entire amount admitted by      him to  be due  or the  monthly amount due as aforesaid      the court may subject to the provisions of sub-rule (2)      strike off his defence.      Explanation 1      ...       ...                    ...      Explanation 2      ...       ...                    ...      Explanation 3      ...       ...                    ...      (2)  Before making  an order  for striking off defence,           the court  may consider any representation made by           the  defendant   in  that   behalf  provided  such           representation is  made within  ten  days  of  the           first hearing or of the 127           expiry of  the week referred to in sub-section (1)           as the case may be.      (3)  The amount  deposited under  this rule  may at any           time be withdrawn by the plaintiff;           Provided that  such withdrawal  shall not have the      effect  of  prejudicing  any  claim  by  the  plaintiff      disputing the correctness of the amount deposited;           Provided further  that  if  the  amount  deposited      includes any  sums  claimed  by  the  depositor  to  be      deductable on  any account  the court  may require  the      plaintiff to furnish security for such sum before he is      allowed to withdraw the same".      The High  Court held in Puran Chand (supra) that if the representation contemplated  by sub-rule  (2) was  not  made within  the   time  prescribed  therein  the  court  had  no jurisdiction to  entertain a representation made beyond time and to  condone the delay in making it. It held further that where no  representation was  made, or  if  made  was  filed beyond time,  the court  was bound to strike off the defence and enjoyed no discretion in the matter.      It  appears   on  the   facts  in  this  case  that  no representation under sub-rule (2) was made by the appellant. The only  question raised  before  us  is  whether,  in  the absence of  such representation,  the court  was obliged  to strike off the defence of the appellant.      It seems to us on a comprehensive understanding of Rule 5 of  Order XV that the true construction of the Rule should be thus.  Sub-rule (1)  obliges the defendant to deposit, at or before  the first  hearing of the suit, the entire amount admitted by  him to be due together with interest thereon at the rate  of nine per cent per annum and further, whether or not he  admits any  amount to  be due,  to deposit regularly throughout the  continuation of  the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the  provisions of  sub-rule (2) strike off his defence".

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We shall  presently come  to what  this means.  Sub-rule (2) obliges the  court, before  making an order for striking off the defence  to consider  any  representation  made  by  the defendant in that behalf. In other words, 128 the defendant has been vested with a statutory right to make a representation  to the  court against  his  defence  being struck off.  If a  representation is  made  the  court  must consider it  on its  merits, and  then  decide  whether  the defence should  or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material  on the record that he has not been guilty of the default alleged or if the default has occurred, there is good  reason for  it. Now,  it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence?  We must  remember that an order under sub-rule (1) striking  off the defence is in the nature of a penalty. A serious  responsibility rests  on the  court in the matter and the  power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike  off the defence if on the facts and circumstances already existing  on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court  to   decide  whether   on  the  material  before  it, notwithstanding the  absence of  a representation under sub- rule (2),  the defence  should or  should not be struck off. The word  "may" in  sub-rule (1)  merely vests  power in the court to strike off the defence. It does not oblige it to do so in  every case  of default. To that extent, we are unable to agree  with the  view taken  by the  High Court  in Puran Chand (supra).  We are  of opinion  that the  High Court has placed an  unduly narrow  construction on  the provisions of clause (1) of Rule 5 of Order XV.      In the  circumstances, the appeal is allowed, the order dated December  3, 1980  of the  High Court is set aside and the  case   is  remanded   to  the   High  Court  for  fresh consideration. In the circumstances, there is no order as to costs. N.K.A.                                       Appeal allowed. 129