S. D. Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings in a small causes court suit no. 37 of 1978 filed by the opposite parties Nos. 3 and 4 Shrimati Sudama Devi and Smt. Prabha Devi against the petitioner Lal Bahadur. The property in dispute is a portion of House No. 117/3, Khuldabad, Allahabad. The above mentioned suit was filed by the respondents Nos. 3 and 4 against the petitioner for ejectment and for recovery of arrears of rent and damages. During the pendency of the suit on 14th February, 1979 an application was made by the opposite parties Nos. 3 and 4 under Order 15 Rule 5 C.P.C. seeking an order of the court striking off the defence as according to the opposite parties Nos. 3 and 4 the petitioner had not complied with the requirement of Order 15 Rule 5 C. P. C. The application was allowed by the Judge Small Causes Court, Allahabad by his order dated 7-7-79. It was held by the court that the petitioner had not deposited the amount of rent as required by the provisions of Order 15 Rule 5 C. P. C. and as such the defence was struck off. Against the order dated 7-7-79 the petitioner filed a revision in the court of the District Judge, Allahabad. The revisional court agreed with the conclusion of the Judge Small Causes Court and dismissed the revision on 10th September, 1979. Aggrieved by the decision of the District Judge dated 10th September, 1979 the present petition has been filed in this Court.
(2.) I have heard the learned counsel for the parties. Learned counsel for the petitioner has raised three contentions before me. His first contention is that for the purpose of Order 15 Rule 5 C. P. C. the court has to see whether the deposit has been made or not in relation to the date for moving of the application for striking off the defence. The submission is that on 14th February, 1979 when the application was made by the opposite parties Nos. 3 and 4 for striking off the defence the entire amount of rent had already been deposited and as such the courts below have no jurisdiction to strike off the defence of the petitioner. The second submission of the learned counsel is that the provisions of Order 15 Rule 5 C. P. C. are directory and even if there has been a default in complying with the Order 15 R. 5 C. P. C. the court in the instant case should have applied its discretion in not striking off the defence. The third submission of the learned counsel is that since in the instant case there was a dispute as to whether the opposite parties Nos. 3 and 4 were landlords or not, it cannot be held that the admitted rent was due from the petitioner and as such also the provisions of Order 15 Rule 5 C. P. C. would not apply. Order 15 Rule 5 C. P. C. is in the following terms:- * * * * *
(3.) ORDER 15 Rule 5 C. P. C. clearly provides that the tenant has to deposit the admitted rent on or before the first hearing of the suit along with interest thereon at the rate of 9 percent per annum. It further provides that for a subsequent period, namely, during the continuance of the suit the tenant is obliged to deposit rent regularly within a week from the date of its accrual whether the said amount according to him is admitted or not. The court therefore, has to examine whether the deposit has been made by the tenant on the first hearing of the suit and thereafter every month during the continuance of the suit. It could not possibly be held as urged by the learned counsel for the petitioner that the relevant date would be the date of moving an application by the landlord for striking off the defence, namely 14th February, 1979 in the present case. In fact, on a reading of Order 15 Rule 5 C. P. C. this provision can also be suo moto exercised by the courts and it is not mandatory for the landlord to move an application for striking off the defence. In this view of the matter, I am of the opinion that the date of moving of the application by the landlords cannot possibly be deemed as the relevant date on which the court should examine whether there has been a default in complying with the provisions of Order 15 Rule 5 C. P. C. or not. The first submission made by the learned counsel for the petitioner, therefore, in my opinion is not well founded.;