ORDER A.N. Verma, J.
1. This is a defendant's application in revision under Section 115 of the Code of Civil Procedure. It it directed against an order passed by the learned II Additional District Judge dated 29-7-1980 striking out the defence of the applicant in a suit purporting to act under Order XV, Rule 5 of the Civil P. C.
2. The defendant-applicant is a tenant of an accommodation, of which the plaintiff opposite-party, is the landlord. The plaintiff-opposite-party filed a Suit No. 126 of 1979 for the ejectment of the defendant-applicant as well as for recovery of certain arrears of rent and damages for use and occupation. The defendant applicant filed a written statement. He admitted the relationship of landlord and tenant between the plaintiff and him, but denied the rate of rent. He also disputed the allegation of the plaintiff-opposite party that the defendant was in arrears of rent.
3. It appears that the first date of hearing in the suit was 25-10-1979. The defendant-applicant deposited the entire arrears of rent admitted to be due from him along with other sums which were required to be deposited after getting the tender passed by the Court for that purpose on 25-10-1979. The court below has found that he made the deposit within three days of the passing of the tender. The defendant appears to have made some default in regard to payment of the monthly rents contemplated under Order XV Rule 5 of the Civil P. C. Consequently an application was filed by the Plaintiff under Order XV Rule 5, C. P. C. with a prayer that the defence of the applicant be struck off.
4. The said application was contested by the defendant-applicant. The defendant asserted that he had made all the deposits which were required to be made under Order XV Rule 5, C. P. C. within the time allowed by law.
5. In the course of this argument upon the above application of the Plaintiff-opposite party, the defendant applicant filed an application by way of a representation purporting to exercise his right under Order XV Rule 5, C. P. C. that the delay in making the monthly deposits for the months of Dec. 1979, Jan. 1980 and February 1980 had been occasioned as a result of a mistaken legal advice given to him by his counsel,
6. The court below has allowed the application of the Plaintiff-opposite-party on the finding that the defendant has committed a default in respect of the deposit of monthly rents for the aforesaid three months. The Court below was of the opinion that inasmuch as the representation of the defendant-applicant was not made within ten days of the default he had no option or discretion left, but to strike off the defence. It is against this order of the Court below that this revision has been filed.
7. Learned counsel for the applicant contends that the Court below has committed an error of jurisdiction in taking the view that he had no discretion left in the matter, and that inasmuch as the representation was filed beyond ten days of the default, the Court below had no option but to strike out the defence. Learned counsel placed reliance on a decision of the Supreme Court dated 27-7-1981 rendered in Civil Appeal No. 1759 of 1981 in the case of Bimal Chand Jain v. Gopal Agarwal: (reported in AIR 1981 SC 1657).
8. Having heard learned counsel for the parties, I am clearly of the view that the contentions raised by the learned counsel for the applicant are well founded. They are fully supported by the aforesaid decision of the Supreme Court. Before the Supreme Court, the question canvassed was precisely the same which has been raised by the learned counsel for the applicant in this revision. The Supreme Court analysed the provisions of Order XV Rule 5, C. P. C. and observed as follows (at p. 1659 of AIR):--
"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 (1981 All LJ 82) (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of Clause (a) of Rule 5 of Order XV."
9. The aforesaid observations leave no manner of doubt that the court is not bound to strike off the defence of a lessee under Order XV Rule 5, C. P. C. and that even if the representation contemplated under that provision is not filed within the period prescribed thereunder, the Court still has discretion in the matter and for good and proper reasons, the Court can refuse to strike off the defence. The Court below, however, seems to have thought that it had no discretion left but to strike off the defence. That view is obviously contrary to the law laid down by the Supreme Court
10. The Court below has also observed that the explanation offered by the applicant cannot be accepted, because the applicant had not filed an affidavit of the learned counsel who is stated to have given him the wrong advice. Learned counsel for the applicant has placed reliance on a decision of this Court in City Board Machura v. Ashok Kumar (1979 All LJ 333), in which it has been held that the explanation offered by the tenant ought to have been accepted without the court's insisting on the affidavit of counsel, who gave the wrong advice to the tenant. It is not necessary for me to express any concluded opinion on whether or not this was a fit case where the default ought to have been condoned as I am proposing to remand the case to the court below for a reconsideration of the question whether on the facts and in the circumstances of the present case, the defence of the applicant ought to have been struck off. The discretion exercised by the court below being vitiated by an erroneous opinion of the relevant legal provision, the court below should, in my opinion, be asked to reconsider the question in the light of the observations made by the Supreme Court in the afore-said decision.
11. In the result, the revision succeeds and is allowed. The impugned order passed by the court below is set aside. The case is remanded to the court below for being disposed of afresh according to law having regard to the observations made in the Judgment.
12. The parties shall bear their own costs of this revision.