A.P.Misra, J. - (1.) THE petitioner has sought for a writ of certiorari to quash the order dated 12-11-1986 (Annexure 2) passed by the respondent no. 1.
(2.) I have heard the learned counsel for the parties.. According to the petitioner, a suit was filed against the petitioner and his mother by the plaintiff-respondent no. 3 in respect of the accomodation in question on the ground of disfiguring of the building, sub-letting and default. According to the petitioner, the plaintiff has alleged in the plaint that he had taken Rs. 1,000/- ajustable towards future rent, and the petitioner denied other plaint allegations, and summons of the suit were served on the petitioner fixing 6th August, 1984. However, since copy of plaint was not given to the petitioner, he thereafter requested for a copy of the plaint to be supplied to him, which was duly supplied subsequently and thereafter, the petitioner duly deposited the entire amount due under Order XV, rule 5, CPC within time on 7th August, 1984. Thereafter, it is alleged, a talk of compromise ensued between the petitioner and the respondent no. 3. However, the said compromise could not be finally arrived at and thereafter an application was moved under Order XV, rule 5, CPC on the 9th July 1985 and on the 16th July 1985, the petitioner immediately deposited the arrears amounting to Rs. 735.75 p. The trial court by the order dated 12th August, 1985, rejected the plaintiff-respondent no. 3's application (paper no. 15-C). Aggrieved as against the said order, the respondent no. 3 preferred a revision before the respondent no 1. The revisional court on the basis of the decision given by this court in D. B. Pooran Chand v. Praveen Gupta (1981) ALJ p 82) allowed the revision of the respondent no. 3. The petitioner aggrieved as against that revisional order has filed the present writ petition. In a nut-shell, the point was whether the revisional court was justified in setting aside the judgment passed by the trial court, which, in effect, accepted the deposit of the petitioner and rejected the application of the respondent under Order XV, rule 5, CPC for striking off the defence.
(3.) THE question regarding striking off the defence has been under consideration by this court as also by Supreme Court in various decisions. In Bimal Chand Jain v. Sri Gopal Agarwal (1981 ARC p. 463) it was held that courts have discretionary powers in respect of allowing striking off the defence under the provisions of Order XV, rule 5, CPC whether a representation has been made or not. This decision was relied on by this Court in the case Sultan Ahmad v. Goverdhan Das (1983 (1) ARC P 161). This court in a subsequent decision in Bimal Chand Jain v. Sri Gopal Agarwal (1982 ARC 638) held that in order to allow the deposit on the first date of hearing of the suit if he has not done so it could only be accepted if there will be a representation made. This decision was the foundation and was relied on by the revisional court and it is on the basis of this decision the revisional court allowed the revision of the respondent. It is not disputed that the aforesaid decision of this court has been set a side by the Supreme Court in Bimal Chand Jain v. Sri Gopal Agarwal (1983 (1) ARC p. 203). This and other catena decision in this regard make the law very clear. It has been left on the discretion of the Court to allow or to disallow the amount deposited on the first date of hearing on the facts and circumstances of the case whether a representation has been filed or whether any such application withdrawing the representation, if existed on the record. In view of this position it is not in dispute in the present case, that in strict sense, there was no representation but there was an application on the record, which has been refered to in the revisional judgment. It cannot be said that the revisional court could have rejected the claim of the petitioner in view of the legal principle laid down in Pooran Chand's case (supra). After hearing learned counsel for the parties, I am of the view and accordingly hold that the respondent no. 1 wrongly rejected the contention of the petitioner and set aside the judgment passed by the trial court. The trial court in this case has exercised its discretion in favour of the petitioner and, I feel, on the facts and circumstances of this case, there was nothing for the revisional court to have interfered with the said decision. In fact, the revisional court has not interfered with such discretion on any other facts recorded but only on legal principle as held by this Court in the aforesaid pooran Chang's case (supra). The law laid down in the aforesaid Pooran Chand's case being set aside by the Supreme Court the judgment passed by the respondent no. 1 is not sustainable. Accordingly, the order dated 12th November, 1986, passed by the respondent no. 1 (Annexure 2 to the writ petition) is liable to be quashed.;