N. D. Ojha, J. - (1.) THE petitioner instituted a suit for ejectment against the respondents 2 and 3 asserting that he was the landlord of the accommodation in question, that respondent no. 2 was the tenant of the said accommodation, that the said respondent had sub-let the accommodation in question to respondent no. 3 and that he was also a defaulter in payment of rent. Respondent no. 2 filed a written statement. Subsequently an application was made by the petitioner for striking off the defence of respondent no. 2 on the ground of non-compliance of Order XV Rule 5 of the Code of Civil Procedure. A copy of this application has been filed as Annexure 1 to the writ petition. This application was contested by respondents 2 and 3 by filing an objection, a copy whereof has been filed as Annexure-2 to the writ petition. After hearing the parties the application for striking off the defence was allowed by the Judge Small Causes on 3rd December, 1979. Against that order respondents 2 and 3 filed a revision before the District Judge which has been allowed by respondent no. 1 on 26th of April, 1980. It is this order of respondent no. 1 which is sought to be quashed in the present writ petition.
(2.) IT was urged by counsel for the petitioner that the amendment made in Order XV Rule 5 of the Code of Civil Procedure by the Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 (hereinafter referred to as U. P. Act No. 57 of 1976) having come into force on 1st of January, 1977, the deposits of monthly rent during the pendency of the suit in compliance with the later part of Order XV Rule 5 C. P. C. had to be made by respondent no. 2 "within a week from the date of its accrual" and since respondent no. 2 failed to comply with that requirement, his defence was rightly struck off by the Judge Small Causes and respondent no. 1 has committed a manifest error of law in setting aside that order. Having heard counsel for the parties, I am of opinion that the impugned order passed by respondent no. 1 cannot be sustained inasmuch as while passing the said order respondent no. 1 has ignored the relevant law on the subject. There can be no manner of doubt that so far as the deposits of monthly rent after 1st of January, 1977 are concerned, they had to be made in accordance with the amendment made in Order XV Rule 5 C. P. C. by U. P. Act No. 57 of 1976. Since the plea raised by counsel for the petitioner in regard to the deposit of rent after the commencement of U. P. Act No. 57 of 1976, it is not necessary to consider the question whether the defence of respondent no. 2 was liable to be struck off for any non-compliance of the provisions of Order XV, Rule 5 CPC as it stood prior to its amendment by U. P. Act No. 57 of 1976. So far as the provision of Order XV, Rule 5 C.P.C. after its amendment by U. P. Act No. 57 of 1976 is concerned, a Division Bench of this Court in Pooran Chand v. Pravin Gupta, 1980 AWC 712 held that the requirements of that provision were mandatory and in the absence of any representation being made within the time prescribed by the amended provision, the Court has no jurisdiction to condone the non-compliance of the said provision. In Bimal Chand Jain v. Sri Gopal Agarwal, 1981 AWC 529 Pooran Chand's case (supra) came up for consideration before the Supreme Court. It was held : "Sub-rule (2) obliges the court, before making......provisions of clause (1) of Rule 5 of Order XV." (Portion cited from judgment omitted-Editor) It would thus appear that the decision of this Court in Pooran Chand's case (supra) has been reversed only to a limited extent. It has been held that even if no representation has been made by the tenant as required by the amended Order XV Rule 5 C. P. C. but there is sufficient material already on the record which explains non-compliance of the requirement of Order XV Rule 5 C. P. C., the Court is not to stirke off the defence mechanically simply on the ground that there is no representation but should decide the question as to whether the defence should be struck off or not after considering the said material.
(3.) WHAT has been emphasised by counsel for the petitioner is that as is apparent from the record, even after the commencement of U. P. Act 57 of 1976 on 1st January, 1977, respondent no. 2 did not deposit the monthly rent "within a week from the date of its accrual" not once, not twice, but on several occasions and respondent no. 1 without even referring to any material on record on the basis of which the non-compliance of the requirement aforesaid of Order XV Rule 5 could be taken as sufficiently explained, has reversed the order of the Judge Small Causes and has thereby committed a manifest error of law. Reliance has also been placed by counsel for the petitioner on a decision of the Supreme Court in Mranalini B. Shah v. B. M. Shah, AIR 1980 SC 954 in paragraphs 11 and 12 whereof the question as to how the term "regularly" in case of making deposit of rent was to be interpreted, has been considered. According to counsel for the petitioner, in view of what has been laid down in Mranalini B. Shah's case (supra) the default committed by respondent no. 2 in not making the deposits of rent within a week from the date of its accrual, rendered his defence to be struck off unless on the material on record a finding was recorded that in view of that material the default in this behalf was sufficiently explained. Having gone through the impugned order passed by respondent no. 1 I am of the opinion that respondent no. 1 has committed a manifest error of law in reversing the order of the Judge, Small Causes, without even referring to any material in record and without recording a finding that in view of that material the default committed in this behalf by respondent no. 2 was sufficiently explained. In this view of the matter the impugned order passed by respondent no. 1 deserves to be quashed.;