ORDER J.C. Gupta, J.
1. This is tenant's writ petition for issuing a writ of certiorari quashing the orders dated 25.9.1981 and 16.9.1980 passed by respondent Nos. 1 and 2 respectively.
2. The predecessor of respondent Nos. 3 to 11 filed suit for eviction of the petitioner in the Court of Judge. Small Causes, Dehradun-respondent No. 2 on the ground of default in payment of arrears of rent alleging that rent from 1.8.1969 to 31.1.1972 amounting to Rs. 210 remained unpaid despite service of notice of demand on the petitioner. The tenancy of the petitioner was also terminated by the same notice. The defence of the petitioner was lhat he has been paying rent to the plaintiff regularly and after the receipt of notice the entire arrears of rent were tendered on three different occasions in the presence of three different witnesses but the landlord refused to accept the same. Ultimately a sum of Rs. 224 (rent for 32 months) was sent on 4.4.1972 through money order but the same was also not accepted by the plaintiff. Thereafter the tenant remitted again a sum of Rs. 231 through another money order but that too was received back on refusal by the landlord. It was further alleged that the notice of termination of tenancy was illegal.
3. It appears that in the trial court after when both the parties had adduced their evidence, an application purporting to be under Order XV, Rule 5, C.P.C. was moved by the plaintiff for striking off the defence of the petitioner on the ground that he had not deposited the monthly rent in time as contemplated under the said provisions. It further appears that no representation in writing was made on behalf of the petitioner explaining the delay which had occurred in making some of the monthly deposits but it was contended on his behalf that since the parties have already adduced evidence, the matter should be decided on merits and there has been no wilful default in making monthly deposits. The trial court struck off the defence of the petitioner holding that on account of the default committed in making monthly deposits in time, the defence of the defendant-petitioner was liable to be struck off and thereafter ignoring the evidence of the defendant altogether, the trial court on the basis of the plaintiffs evidence decreed the suit for eviction by the judgment dated 16,9.1980. The revision filed against the said judgment has also been dismissed by the respondent No. 1 by the order dated 25.9.1981.
4. Parties' counsel have been heard at length and record has also been perused.
5. Learned counsel for the petitioner. Sri A. D. Prabhakar, argued before the Court that non-consideration of defendant's evidence on account of the order of the trial Court striking off the defence of the petitioner has resulted in gross mis-carriage of justice. He attacked the order of striking off the defence mainly on two grounds : firstly, by contending that the application of the landlord for striking off the defence under Order XV. Rule 5. C.P.C. was not maintainable after when the parties had adduced evidence. The second ground 'of attack is that the trial court was not Justified in striking off the defence merely on the ground of absence of a representation in writing by the petitioner. He argued that the facts and circumstances appearing in the case did not call for exercise of discretion by the trial court in favour of the landlord. On the other hand learned counsel for the respondents-landlord argued that the matter of striking off the defence was within the discretion of the Courts below and once that discretion has been exercised in a proper and legal manner, this Court in exercise of its writ jurisdiction should not interfere.
6. It is an undisputed fact that while decreeing the suit for eviction on the ground of default in payment of rent, both the Courts below have not taken into consideration the defence and the evidence adduced in support thereof as the defence had been struck off by a separate order of the trial court. Therefore, if the order of striking off the defence is not found sustainable, the decree of eviction also cannot be upheld.
7. Learned counsel for the petitioner on the basis of the two decisions of this Court ; Rajendra Pal Garg v. Addl District Judge, Dehradun. 1987 (2) ARC 289 and Bharat Bhushan Misra v. District Judge, Gonda and others, 1990 (1) ARC 537, argued that when the trial court had recorded the evidence of the parties it should not have entertained the landlord's application for striking off the defence of the defendant under the provisions of Order XV, Rule 5, C.P.C. In the case of Bharat Bhushan Misra (supra) a learned single Judge of this Court based the decision on the dictum laid down in Rajendra Pal Garg's case (supra) that the question of striking off defence cannot be examined as a preliminary issue after the closure of the evidence of the plaintiff-landlord and if such an order is passed at that stage the same is liable to be quashed. The correctness of the decision in Rajendra Pal Garg's case was, however, doubted by a learned single Judge of this Court and the matter was referred to a Division Bench in the case of Bal Krishna v. Ramanand Dixit and another. 1996 (2) ARC 285, and the decision in Rajendra Pal Garg's case was overruled by the Division Bench and it was held therein that Order XV, Rule 5 of the Code of Civil Procedure, nowhere refers about the closure of the evidence of the plaintiff and the closure of evidence has nothing to do with the statutory liability of the defendant/tenant to regularly deposit the monthly amount throughout the continuation of suit within a week from the date of its accrual and in the event of any default in making such deposit the Court may strike off his defence irrespective of the fact whether the plaintiff has closed its evidence or not.
8. A perusal of Order XV, Rule 5, C.P.C. would show that under the second part of sub-rule (1), there is an obligation on the tenant that he shall throughout the continuation of suit regularly deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making of the deposit of the monthly amount due, the Court may subject to sub-rule (2) strike off the defence. Sub-rule (2) requires consideration of representation, if any, made by the tenant in that behalf. The words, 'throughout the continuation of the suit' are of significance and, therefore, it must be held that the power of striking off the defence is not confined to the stage before the evidence is led or adduced by the parties to the suit. The power conferred on Court under the said provisions is exerciseable till the suit continues to remain pending before it. Therefore, the argument of the learned counsel for the petitioner that in the present case, since parties had adduced the evidence, provisions of under Order XV, Rule 5, C.P.C. could not be pressed into service is untenable.
9. Now the next question which arises for consideration is whether the trial court was bound to strike off the defence of the petitioner merely on the ground of absence of any representation in writing by the tenant when a default was committed by the defendant-petitioner in not making some of the monthly deposits in time?
10. The purpose of enacting Order XV. Rule 5, C.P.C. has been elaborately explained in the case of Shiv Prasad a. Special Judge. Allahabad and others, 1996 (1) ARC 110. In paragraph 9 of the report in the following words :
"The purpose of enacting the provisions of Rule 5 in Order XV was not to give lever to the landlord to get a tenant punished for insignificant lapses. The purpose was merely to ensure that the dues of the landlord are properly secured and he can get his rent regularly even though the litigation may continue."
11. The scope of the said provision also came up for consideration before the Apex Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal, 1981 ARC 463. wherein the decision of Allahabad High Court in Puran Chand v. Pravin Gupta, 1980 AWC 712, was over-ruled. It was held as under :
"Sub-rule (2) of Order XV of the Code obliges the Court before making an order for striking off the defence to consider any representation made by the defendants in that behalf. In other words, 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 defence? it must be remembered 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 reserve of discretion vested in the Court entitling it not to strike, of 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 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."
12. In the case of Bal Krishna v. Ramanand Dixit and another, 1996 (2) ARC 285, the Division Bench of this Court opined that the total idea behind this provision appears to be to protect the landlords from hardships and giving them a right to make an application to strike off tenant's defence in case, the defendant does not comply with the provisions for depositing the arrears of rent even after filing of the suit for his eviction.
13. In the case of Sudhir Kumar Gupta v. Dr. S. K. Raj and another. 1998 (1) ARC 545. a learned single Judge of this Court, Hon'ble O. P. Garg. J., after analysing and examining various authorities of this Court and of Supreme Court also took the view that the order of striking off the defence is not to be passed in a mechanical, cursory and perfunctory manner. The Court must apply mind to all the aspects of the case as the provisions of Order XV. Rule 5, C.P.C. are not intended to punish the tenant, if he has for some explainable reasons made default in depositing the amount of rent regularly.
14. In Parma Nand Chatirasia v. District Judge. Jaunpur and others, 1996 (1) ARC 301, it was observed :
"It must be remembered that an order under sub-rule (1) striking off the defence is in the nature of penalty. A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is 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. I am of the opinion that unduly narrow construction of the provisions of clause (1) of Rule 5 of Order XV should not be placed."
15. In the case of Bhawani Vastra Bhandar, Ballia and another v. Smt. Sahodra devi (since deceased) and others, 1996 (2) ARC 406. a learned single Judge of this Court took the view that the provisions of Order XV. Rule 5. C.P.C. should not be interpreted in such a way that they should be trapped to evict the tenants. It was further held that the striking off defence entails serious consequence of eviction and the tenants may not be able to find out the accommodation. At the same time, the Court is also to see that the interest of the landlord is not jeopardised regarding the payment of rent and the tenant walks out without the payment of rent.
16. In the case of Smt. Kailash Devi v. IVth Addl. District Judge. Allahabad and others. 1994 (2) ARC 542, which has also been relied upon by learned counsel for the respondents, a learned single Judge of this Court. Hon'ble Sudhir Narain, J.. held that the word 'may' used for sub-rule (1) of Order XV, Rule 5 empowers the Court not to strike off defence even in absence of representation by tenant, if on the facts and circumstances already existing on record, it finds good reason for not striking off the defence. There may be three aspects.
(1) The tenant moves application for extension of time to deposit amount. The Court may extend the time.
17. In Laxmi Narain v. Rama Wand and others, 1994 (2) AWC 1169. this Court held that it is not necessary that in each and every case of delay in making deposit, a representation is a must. Similarly in the case of Surma Lal Gupta v. 1st A. D. J., Jhansi and others. 1990 ALJ 241. It was ruled that it was not necessary to file a representation always to explain the delay in depositing rent in Court but the material already on record and the facts and circumstances of the case should be taken into consideration in entirety to come to the conclusion whether delay in making deposits was intentional on the part of the tenant. If the facts and circumstances of the case show, even in the absence of representation that the delay was not intentional and that there was no guilty mind in making deposits then there would be an error on the part of the Court in laying down undue emphasis on the omission of the representation.
18. From the side of the petitioner, reliance has also been placed on the decision in Smt. Leela Deui and another v. Smt. Shanti Deui Jaiswal, 1985 (2) ARC 144, wherein it was held that the provisions of Order XV, Rule 5, C.P.C. are not mandatory but discretionary and in every case of default the Court is not obliged to strike off the defence. In other words even if there is a default the Court in its discretion may refuse to strike off the defence. It was further held therein that for deciding whether in a particular case defence should or should not be struck off one has to consider the circumstances of that particular case and one of the main circumstances which requires consideration is the nature of the default. If the amount of default is very small or negligable considering the amount already deposited lenient view should be taken.
19. Reference may also be made to the decision in the case of V. C. Kela and another v. M/s. Premier Precisions Tools Manufacturing (Pvt.) Ltd., Meerut and others, 1996 (1) ARC 62. wherein it was held that the powers conferred by Order XV. Rule 5 of the Code of Civil Procedure to strike off defence is a discretionary power and the Court is not bound to strike off the defence in every case of a mere technical or bona fide default. An order striking off the defence under Rule 5 of Order XV is in the nature of a penalty and, therefore, a serious responsibility rests on the Court and the power is not to be exercised mechanically. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. After referring to the decision of the Supreme Court in Hindustan Steel Ltd. v. State of Orissa, (1972) 83 ITR 26, the learned Judge held that by an order of striking off defence under Order XV. Rule 5 of the Code, the tenant is deprived of his right to defend himself and such a result should not be allowed to corne about unless the tenant's conduct has been contumacious or dishonest or the tenant has acted in conscious disregard of its obligation. Where a tenant is substantially complying with the provisions in question the defence of tenant cannot be struck off for minor lapses and if the default is so insignificant and trifilng, the judicial discretion requires the same to be Ignored.
20. A bare perusal of the provisions of Order XV. Rule 5, C.P.C. would show that it consists of two parts. The first part deals with the requirement of deposit of rent on or before the first date of hearing. Under this part, the tenant is liable to deposit the entire arrears of rent admitted to be due on the date of first hearing along with nine per cent interest thereon. If the tenant makes compliance of this, he is exonerated from the penalty of striking off his defence but if he fails to do so, his defence is liable to be struck off subject to the provisions of sub-rule (2). The second part postulates that whether or not the tenant admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount within a week from the dates of its accrual and in the event of any default in making such deposit, the Court may, subject to the provisions of sub-rule (2), strike off his defence, it is thus clear that under the first part, the tenant is obliged only to deposit that much of arrears of rent along with interest which is admitted by him to be due whereas under the later part, the tenant is required to deposit the monthly amount regularly within a week from the date of its accrual, irrespective of the fact whether or not he admits the said amount to be due. The power to strike off defence under sub-rule (1) is, however, subject to sub-sule (2) which requires the Court, before making an order of striking off defence, to consider representation, if any, made by the defendant in that behalf within ten days of the first hearing or, of the expiry of one week referred to in sub-rule (1). as the"
case may be. In other words, if a representation is made by the tenant within ten days of the date of first hearing in respect of the deposit of arrears of rent and interest thereon, the Court shall not make an order of striking off the defence without considering the said representation. Similarly the expression 'within ten days of the expiry of the week referred to in sub-rule (2)' pertains to the second part of sub-rule (1) of Rule 5 of Order XV, C.P.C. and the Court is under a statutory obligation to consider the representation, if any. made by the tenant in that behalf.
21. There is no difficulty for the Courts in dealing with the situations where a representation in writing under sub-rule (2) has been made by the tenant, as in such cases, the Court is bound to consider the same before deciding the question whether the defence should or should not be struck off. The real problem is, however, faced by the Courts when no such representation has been made by the tenant and in those cases, the question arises as to what should the Court do? is the Court bound to strike off the defence in every case due to the absence of representation? This controversy has been now well-settled by a series of judgments of this Court as well as of the Apex Court. The settled law now is that even where no such representation is made by the tenant as contemplated under sub-rule (2). the Court is not bound to strike off the defence in every case. The Court is under a judicial duty to scrutinize and examine the material either brought on record in response to the plaintiff's application for striking off the defence or is already existing on record and also to consider and weigh the facts and circumstances appearing in the case before taking the decision whether or not the tenant has made himself liable to punishment of the striking off his defence. The law has conferred upon the tenants a valuable right of hearing on the basis of principle of natural justice, and that right Includes also the right to adduce evidence in defence and due consideration thereof by a Court of law. The State Legislature, has, however by amending Order XV, Rule 5. C.P.C. thought it necessary to provide that if the defendant-tenant commits default in making deposits as per the said provision, he may lose his valuable right of defence. Since the order of striking off the defence takes away a valuable right of the defendant of consideration of his defence and evidence, the provisions are to be strictly construed and not in a mechanical or perfunctory manner, and as observed by the Supreme Court in the case of Bimal Chand (supra), there is reserve of discretion' vested in the Court entitling it not to strike off the defence if on the facts and circumstances appearing in the case, it finds good reason for not doing so, notwithstanding the absence of a representation under sub-rule (2). The settled position of law with regard to the scope of Order XV, Rule 5, C.P.C. In the backdrop of the aforesaid decisions may be summarised. Under sub-rule (2), the tenant has been vested with a statutory right to make a representation to the Court against his defence being struck off and if such a representation is made, the Court is bound to consider the same on its merits and then to decide whether or not the defence should be struck off. Even in the absence of such a representation, it is open for the tenant to show by bringing material on record that he has not been guilty of the default alleged or if the default has occurred, to show that there were good and sufficient reasons for condonation of delay. That material may either be brought by the tenant himself in response to the plaintiffs application for striking off the defence or the same may be already existing on the record. If such a material has been brought on record or already exists there, the Court before ordering striking off defence is bound to consider the same and the power to strike off the defence is not to be exercised in a mechanical and/or cursory manner. Before taking a final decision for striking off the defence, the Court must apply its mind to all the facts and circumstances appearing in the case and if it finds good reasons, it may decline to order the striking off defence. The discretion vested in the Court has to be exercised in a proper and legal manner and not in an arbitrary or mechanical manner.
22. In the present case, undisputedly the application for striking off the defence was moved by the plaintiff after the closure of the evidence of the parties and it was not the case of the landlord before the trial court nor before this Court that the amount required to be deposited under the later part of sub-rule (1) of Order XV. Rule 5. C.P.C. had not been deposited or the amount deposited by the petitioner fell short of the amount required to be deposited under the said provision. The only claim of the landlord was that the defendant-petitioner had been guilty in not making some of the monthly deposits in time and in respect of some of the monthly instalments there had been gap of 2-3 months. There is also no dispute of compliance of the first part of Order XV, Rule 5, C.P.C. by the defendant-petitioner on the date of first hearing and the complaint made by plaintiff was only with respect to the non-compliance of second part regarding a few monthly deposits having not been made within the time as prescribed under sub-rule (1). It further appears that the lapses alleged by the landlord had occurred much prior to the moving of application and the plaintiff before that never objected to and even permitted the defendant-petitioner to adduce his evidence. There is also nothing on record nor it is the case of the respondents before this Court to indicate that the petitioner had put any impediment in or objected to the landlord's right of withdrawing the amount deposited by the petitioner. At best, it could be said that on account of default committed by the petitioner in making some of the monthly deposits in time, the landlord was deprived of his right of withdrawing the amount soon after the expiry of period prescribed for making monthly deposits resulting in sufferance of loss of interest which he would have otherwise earned if the deposits had been made in time. Both the Courts below have totally over-looked an important and most relevant factor that the monthly rent was Rupees Seven only and the total loss of interest due to delayed deposits would be so small and insignificant, that did not warrant imposition of the extreme penalty of striking off the defence of the petitioner especially in the circumstances of the case where no objection was raised by the landlord earlier and he by his own act of omission allowed the defendant-petitioner even to adduce his evidence and rather tacitly agreed to the continuation of suit for its final decision on merits. The lapse of delayed deposits of monthly rent in the light of the facts and circumstances appearing on the record of the cases was so insignificant and trifling that judicial discretion required the same to be ignored on the principle of the maxim "minimis non cural tex" i.e., the law cares not for small things or in other words, diminutives are not noticed by law. The law does not concern itself with trifles and Courts of justice generally do not lake trilling and insignificant and immaterial matters into account.
23. After giving thoughtful consideration to the entire matter, this Court finds that the Courts below have exercised their discretion in a most mechanical manner by taking a very narrow and hyper-technical view of the matter which has resulted in a grave mis-carriage of justice inasmuch as neither the case of the petitioner nor evidence adduced by him has been considered by the Courts below while deciding the crucial issue of default in payment of rent. Therefore, the decree passed by the trial court and uphold by the revisional court, in the circumstances and for the reasons stated above cannot be sustained.
24. Learned counsel for the respondents also cited the decision of the Supreme Court in the case of Smt. Satya Kumari Kamthan v. Noor Ahmed and others. 1992 (2) ARC 82. In that case, an application for striking off the defence was filed by the plaintiff. The tenant filed written statement objecting to the striking off the defence on the ground that there was no default in payment of rent as provided under Rule 5 (1) of Order XV. This stand of the tenant was, however, not accepted by the Courts below and it was found as a fact that there has been default in making deposit of the amount due. The Courts further held that though there was a default in making of deposit of the amount due, there was no representation by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons, therefore, the plaintiff was entitled to get the defence struck off. The High Court, however, set aside the order of the District Judge and remanded the case for fresh disposal taking the view that the order striking off the defence was not in accordance with law. It was on these facts that the Supreme Court held that the word 'representation' may cover a 'representation' in answer to an application for striking off or a 'representation' praying for an extension of time for making the deposit on sufficient grounds shown. Since the tenant had made a representation only to the effect that he had deposited the correct money rent but had not filed any application for extension of time, his contention was not accepted as there was a default in payment of admitted rent. In these circumstances, the order of striking off the defence passed by the trial court was restored. The facts of the present case are entirely different. In the case before the Supreme Court as per the finding of fact, the tenant had not deposited the correct amount which had fallen due and there was a shortage in the deposit whereas in the case in hand, there has been no shortfall in amount of rent deposited in Court and the only lapse on the part of the petitioner was that some of the monthly amounts were deposited late. The said decision, is, therefore, of no held to the respondent-landlord.
25. For the foregoing reasons and discussion, the impugned judgments and orders dated 25.9.1981 and 16.9.1980 passed by respondent Nos. 1 and 2 respectively cannot be sustained and are set aside. The case is remanded to the trial court for a fresh decision of merits, in accordance with law and in the light of the observations made above. Since the matter has become very old and the evidence has already been adduced by the parties, the trial court is directed to hear the arguments of the parties and decide the case within a period of six weeks from the date of production of certified copy of this order. It is further ordered that after when the case is decided by the trial court and of the revision is filed against the judgment of the trial court the same shall also be heard and decided on priority basis.
26. With the above directions, this writ petition is allowed.
In the circumstances, parties are directed to bear their own costs.