R. R. Rastogi, J. - (1.) THIS is defendant's revision under section 25 of the Provincial Small Cause Courts Act which is directed against the order passed by the IIIrd Additional District Judge, Meerut, under Order 15 Rule 5 of the Code of Civil Procedure striking off the defence of the defendant-applicant. The brief facts are these. The plaintiff-opposite-party filed a suit for ejectment and recovery of arrears of rent and mesne profits against the defendant-applicant. The defendant resisted the suit and filed a written statement. The first date of hearing fixed in the case was 28-2-1980 and the defendant deposited rent up to March, 1980 on 27-2-1980. However, he did not deposit interest on the amount of rent due for the month of January, 1980. Apart from this, the rent for the period April, 1980 to June, 1980 was deposited on 20-6-1980, for the months of July, August and September, 1980, on 9-9-1980 and for the months of October, November and December, 1980, on 17-12-1980. In other words, in respect of the rent for April, May, July, August, October and November, 1980 rent had not been deposited on the due date, that is, within one week of the rent having become due.
(2.) AN application was given on behalf of the plaintiff-opposite-party under Order 15 Rule 5 of the Code of Civil Procedure for striking off the defence. Pending disposal of that application the defendant-applicant filed a representation on 9-2-1981 praying for condonation of delay which had been caused in deposit of the rent in the manner aforesaid. Relying on a decision of this Court in Pooran Chand v. Pravin Gupta, 1980 AWC 712,,the court below has taken the view that since the representation under sub-rule (2) of Rule 5 of Order 15 was not made within the period provided therefor, the court had no jurisdiction to consider the representation and condone the delay or extend the time. On this view it has been held that there was non-compliance of the provisions of Order 15 Rule 5 of the Code of Civil Procedure and as such the defence was liable to be struck off and has been so struck off. It has been submitted before me by Sri Pramod Kumar Jain on behalf of the applicant that the view taken by the court below being contrary to the law laid down by the Supreme Court in Bimal Chand Jain v. Sri Gopal Agrawal, 1981 AWC 529, cannot be sustained. I find merit in this contention. Rule 5 of Order 15 of the Code of Civil Procedure was enacted by the U. P. Civil Laws (Amendment) Act, 1972. That rule was repealed by U. P. Act No. 57 of 1976 and was re-enacted. In sub-rule (1) the "defendant is under an obligation to deposit "at or before the first hearing of the suit" the entire amount admitted by him to be due together with interest thereon at the rate of nine percent 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. In the event of any default in making the deposit of the entire amount admitted by him to be due or die monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2), strike off his defence. There are three explanations to this sub-rule which are relevant for the present purpose. Then comes sub-rule (2) which reads :- "(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 ten days, of the first hearing or, of the expiry of the week referred to in sub-rule (1), as the case may be." Sub-rule (3) and the two provisos thereto are not relevant for the present purpose and hence are omitted. This Court did in Pooran Chand (supra) take the view that if the representation contemplated by sub-rule (2) was not made within the time prescribed therein, the court had no jurisdiction to entertain the representation made beyond time and to condone the delay in making it. It also held that where no representation was made, or if made, was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter. The Supreme Court in Bimal Chand (supra) has not agreed with this view and has laid down :- "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." It has also been observed :- "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 the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of penalty. A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically............ 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 made under sub-rule (2), the defence should or should not be sturck 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."
(3.) THIS decision has been followed by a learned Single Judge of this Court in Jawahar Lal v. Ram Chandra, 1981 UPRCC 609. In Smt. Saraswati Devi v. B. C. Kupdu, AIR 1981 Alld. 259 I also took the view that Order 15 Rule 5 only vests a discretion in the court to strike off the defence and does not compel it to do so. My attention has also been invited to an unreported decision of Hon'ble the Chief Justice in Civil Revision No. 177 of 1980 Jugmander Dass v. Sri Ram Phal, decided on 28-9-1981 in which it has been observed :- "So long as the object of the statutory provision is achieved, undue technicality should not be allowed to prevail to shut out the defence of the tenants from being considered by the Court." It would thus appear that the court below erred in not considering the representation of the defendant-applicant on its merits. It has, however, been submitted before me by the learned counsel for the plaintiff-opposite-party that during the pendency of this revision there was default in the deposit of the rent on the part of the applicant and apart from that no explanation had been given in the representation filed by the defendant-applicant to explain the circumstances in which the default in the deposit of rent of certain months occurred. According to the learned counsel the defendant thus is not entitled to any relief in this revision. After hearing counsel for parties I am not inclined to agree with the learned counsel. Firstly, this is a question of fact which should be decided by the court of fact itself. The representation made by the defendant-applicant has not been considered by the court below on its merits. Even apart from the representation if there exists on the record any material which the defendant could have shown in his justification the same also required to be considered by the court below before striking off th'e,defence. Apart - from that sub-rule (1) merely vests power in the court to strike off the defence and does not oblige it to do so in every case of default. In other words, the matter is to be considered by the court below itself on merits.;