JUDGMENT Anjani Kumar, J.
1. By means of this writ petition petitioner tenant has challenged the order passed by the revisional court dated 7.7.2004 whereby the revisional court has affirmed the order passed by the trial court dated 3.12.2003.
2. The facts leading to filing of this writ petition are that the respondent-landlord filed a suit against the petitioner-tenant for arrears or rent and ejectment. The tenant contested the aforesaid suit. The respondent-landlord filed an application 18C under Order XV, Rule 5 of the Code of Civil- Procedure with the prayer that since the tenant has not complied with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, his defence may be struck off. The petitioner-tenant filed objection 19C to the aforesaid 18C denying the allegations made in the application 18C that the provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in the State of U.P. which are reproduced below :
Order XV Rule 5 "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 within a week from the date of its accrual 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 defence.
Explanation 1. -- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned............................
(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 10 days of the first hearing or, of the expiry of the week referred to in Sub-section (1), as the case may be.
(3) The amount deposited under the rule may at any time be withdrawn by the plaintiff :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 deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."
3. The trial court recorded finding that it is admitted case of the parties that the petitioner-tenant is the tenant on monthly rent of Rs. 225 and further that even assuming that the details furnished regarding deposit to be correct even according to the petitioner-tenant himself that the rent upto 30th June, 2003 and there is no assertion nor any evidence that any rent thereafter has been deposited by the petitioner-tenant, therefore, it is clear that after 30th June, 2003 no rent has either been paid or deposited by the petitioner-tenant in the Court in compliance of Order XV, Rule 5 of the Code of Civil Procedure. The trial court allowed the application 18C for striking off the defence of the petitioner-tenant and dismissed the objection 19C filed by the petitioner-tenant. Aggrieved thereby the petitioner-tenant preferred a revision before the revisional court which was registered as Revision No. 63 of 2004. The revisional court by its order impugned in the present writ petition affirmed the findings of the trial court that no amount is deposited towards the rent by the petitioner-tenant as is admitted by the petitioner-tenant himself after 30th June, 2003. Learned counsel for the petitioner-tenant has relied upon a decision of the Apex Court in Bimal Chand Jain v. Gopal Agarwal, 1981 ARC 463. wherein the Apex Court has held :
"6. 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 interests 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 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 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."
4. Learned counsel for the petitioner has also relied upon another decision of this Court in Shiv Prasad v. Special Judge, Allahabad and Ors., 1996 AWC (Supp) 537, wherein learned single Judge relying upon the case of Bimal Chand Jain (supra) decided by the Apex Court, has held that:
"9. 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. The details of the deposits made by the petitioner, in this case indicate that he has substantially complied with the provisions of the aforesaid rule and when it struck to him that there was a little deficiency and delay he even deposited the amount of interest though there is no provision in the aforesaid rule for payment of interest on delayed deposits in respect of the rent falling due after the institution of the suit. It is also clear that though the tenant had been depositing the amounts over a number of years, on one, not even the Court had pointed it out to him that the deposits are not in order. Even the landlord In his application under consideration did not pinpoint the default and wrongly alleged that no deposit has been made. The said application was not taken up for hearing Immediately and was allowed to remain pending for about 10 months. Therefore, this was not a case in which the Courts 'reserve of discretion' could have been exercised to strike off the defence and it was undoubtedly a case in which the Court should have exercised that 'reserve of discretion' by declining to strike-off defence is of a penal nature. As held by the Hon'ble Supreme Court the striking-off of defence is of a penal nature. In Hindustan Steel Limited v. State of Orissa, (1972) 83 LLR 26, the Hon'ble Supreme Court held that an order Imposing penalty for failure to carry out a statutory obligation is the result of quasicriminal proceedings and penalty will not ordinarily be imposed unless the parties obliged either acted deliberately in defiance of law or was guilty of conduct, contumacious or dishonest or acted in conscious disregard of its obligation. Penalty will also not be imposed merely because it is lawful to do so. Whether a penalty should be imposed for failure to perform statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all relevant circumstances. The circumstances of the present case, as discussed above, shown that the tenant petitioner is not guilty of any dishonest or contumacious conduct. Nor it is shown that he acted deliberately in defiance of law. He has almost fully complied with the requirements of law and the default was so insignificant and trifling that judicial discretion required the same to be ignored."
5. Needless to say, that the decision of Shiv Prasad (supra) is a decision on facts. According to the Apex Court the Order XV, Rule 5 consists of two parts ; first the deposit contemplated at the first hearing and second part contemplates "he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of Its accrual 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 defence."
6. Admittedly there is no compliance by the petitioner to the Explanation 1 to the sub-rule (1) of Rule 5 of Order XV and no representation has been made for the condonation of the default with regard to the second part of the Order XV of Rule 5 which according to the recent judgment of the Apex Court in Surya Dev Rai v. Ram Chander Rai and Anr., 2OO3 (6) SCC 675, do not require any interference by this Court in exercise of the power under Article 226 of the Constitution of India.
7. In these circumstances, the view taken by the revisional court and that of the trial court do not warrant any interference by this Court under Article 226 of the Constitution of India.
8. In this view of the matter, this writ petition has no force and is dismissed.