Heard learned counsel for the parties and perused the record.
The facts in brief are that JSSC Suit No. 59 of 2007 was filed by plaintiff respondent no.1 for arrears of rent and ejectment from godown no.2 Eastern side situated near gate no.2 Anand Niketan Market, Bareilly against the petitioner.
The defendant petitioner filed his written statement controverting the allegations made in the plaint. An application under Order 15 Rule 5 of the Code of Civil Procedure was filed by the plaintiff for striking off the defence against which no objection was filed by the defendant petitioner. The trial Court/Judge Small Causes Court, Bareilly vide order dated 10.6.2010 allowed the application directing striking off the defence of the petitioner. Aggrieved by the aforesaid order dated 10.6.2010, the petitioner filed representation, which too was rejected by the Court below vide order dated 30.8.2010, against which revision was filed by the petitioner before the court of District Judge, Bareilly. The aforesaid revision was also rejected vide order dated 30.9.2010, hence the instant writ petition has been filed for quashing the aforesaid orders dated 10.6.2010, 30.8.2010 and 20.10.2010 respectively.
Learned counsel for the petitioner submits that the petitioner has filed representation on sufficient and valid grounds and has also submitted the tender for depositing the entire amount of rent due as it provided under Order 15 Rule 5 C.P.C. but the courts below have committed an error of jurisdiction in rejecting the representation of the petitioner as such the order striking off the defence of the petitioner is penal in nature. According to him, the courts below ought to have condoned the delay by recalling the order of striking off the defence and allowing the petitioner to deposit the amount due.
He also submits that the petitioner shall suffer irreparable loss and injury in case he is deprived of his defence in the suit and he will be evicted from the premises in suit straight way. In support of these submissions learned counsel for the petitioner has placed reliance upon the decisions rendered by the Apex Court in Bimal Chand Jain vesus Sri Gopal Agarwal, Allahabad Civil Journal ( Supreme Court) page-395 and the Lucknow Bench of this Court in Pyare Lal versus District Judge, Lucknow and others, ( 2010)(2) ARC-260.
Case of Bimal Chand Jain (supra) was that a suit for ejectment of a lessee and for recovery of arrears of rent was filed. The Court in the facts of that case posed a question as to whether the court enjoys 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 ?
The question was answered thus:-
" 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." 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, 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? We must remember 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. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of the opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV."
The facts in which Bimal Chand Jain's case was decided are clearly distinguishable from the facts and circumstances of the present case as the judgment was rendered in 1981 when the State Amendments with regard to Order XV Rule 5 of C.P.C. were not on statute and came into existence only w.e.f. 1.10.1983.
In the case of Pyare Lal, the Court found that the petitioner tenant had neither paid rent nor deposited the same in the Court for use and occupation of premises in dispute. Defence of the petitioner was consequently struck off which was challenged in revision by him, which too was dismissed. Aggrieved the petitioner filed writ petition challenging both the orders of the courts below. The Court in that case held that in the present case, as rent had not been deposited by the petitioner under Order XV, Rule 5 of CPC on first date of hearing even till date. However, as petitioner in that case was ready to pay the entire admitted amount of rent along with interest and other charges in favour of trust/ landlord of the building in question before the trial Court within a week time which was turned down by the court being not in accordance with law. In the High Court, the offer was accepted by the landlord, hence in these peculiar facts and circumstances, the Court directed the trial Court to accept the defence on payment of Rs.5000/- as costs.
In the instant case, as the amount of rent has not been deposited by the petitioner as required under Order 15 Rule 5 of the Code of Civil Procedure neither on the first date of hearing or even afterward, hence this case law also does not apply to the facts and circumstances of the present case.
In order to adjudicate the matter, it is imperative to look into the provisions of Order 15 Rule 5 of the Code of Civil Procedure, which are as under:-
"5. Striking off defence for 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 regularly deposit the monthly amount due to 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."
On perusal of the provisions of Order 15 Rule 5 of the code, it is evident that after determination of the tenancy on the first date of hearing of the Suit, the tenant is to move an application for depositing the entire admitted outstanding amount as rent including 9% interest as well as other charges on or before the first date of hearing and continue to deposit the entire amount of rent admitted by him to be due during the pendency of the proceedings failing which it would be open for the Court to struck down his defence.
It is apparent from impugned orders of the courts below that the petitioner has not deposited the rent of the premises in suit in question during its pendency in the court below. A demand notice was given to the petitioner in respect of payment of rent but he has not paid the rent to the landlord. The Court has power and obligation to consider the representation if any made by the tenant before making an order striking off defence. However, the court below did not accept the tender of the petitioner tenant and has passed the order of striking off the defence of the petitioner after notice and hearing the parties on the grounds taken therein by the petitioner. The reivisional court has also confirmed the order of striking off the defence passed by the court below.
For all the reasons stated above, in my considered opinion, the defence of the petitioner has rightly been struck off by the court below. There is no illegality or infirmity in the order impugned .
The writ petition is accordingly, dismissed. No order as to costs.
Dated 1.2.2011 CPP/-