1. Heard learned counsel for revisionist and perused the records.
2. None for the respondents in spite of personal service.
3. This revision has been preferred against the order dated 24.02.2012 passed by learned Additional District Judge, Court No.6, Raibareli, by which application of the landlord/revisionist for striking of the defence of the defendant due to non-compliance by the tenant, under Order 15 Rule 5 of C.P.C. has been rejected. The learned Judge S.C.C. has observed in last but one para that the defendant has defaulted in complying with the provisions contained in Order 15 Rule 5 of C.P.C. but has held that whether this default is bonafide or malafide, can be considered only after recording of evidence. The findings are patently absurd. The provisions contained under Order 15 Rule 5 of C.P.C. are mandatory and learned Judge, S.C.C. cannot defer or postpone the matter of striking of defence after recording of evidence, which shall be meaningless and amounts to willful breach of law. There are a number of decisions of the Hon'ble Apex Court on this point.
4. In E. Palanisamy v. Palanisamy (2003) 1 SCC 123 the Hon'ble Apex Court has observed as under:-
"It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
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The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.
We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the Punjab Act was of no avail in view of the express provision of Section 27 of the Act."
5. While passing this judgment the Hon'ble Supreme Court has relied upon its earlier decisions in Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243, Jagat Prasad v. Distt. Judge Kanpur 1995 Supp. (1) SCC 318, M. Bhaskar v. J. Venkatarama Naidu (1996) 6 SCC 228 and Ram Bagas Taparia v. Ram Chandra Pal (1989) 1 SCC 257. There is another decision in Atma Ram v. Shakuntala Rani (2005) 7 SCC 211 which has been relied upon by a division bench of this Court in Haider Abbas v. Additional District Judge (Court no.3) Allahabad and others 2006 (62) ALR 552, in which it was held:-
"The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC.
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It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration."
6. I am afraid, the learned Judge S.C.C. has attempted to pass a diplomatic order and not a judicial order, in violation of the law and consistent decisions of the Hon'ble Apex Court. The law should not been seen to sit by limply, while those who defy if go free, and those who seek his protection lose hope. A Court cannot allow any infringement of established law for a single moment and, on this analogy recently in Gurdev Kaur & others V. Kaki & others, AIR 2006 SC 1975, the Hon'ble Apex Court has given a note of caution to such orders which are stagmatic on the justice delivery system in the mind of the public at large and has held; "Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos.?
7. With these observations, revision is allowed. Impugned order dated 24.02.2012 passed by the learned Additional District Judge, Court No.6, Raibareli in S.C.C. Suit No.1 of 2008 is set aside. Learned Trial Court is directed to decide the application under Order 15 Rule 5 of Code of Civil Procedure forthwith and then proceed with the case.
Order Date :- 28.8.2012 Nitesh