S.C.Mathur, J. - (1.) THE tenants who are defendants in the suit filed by opposite party no. 3, are aggrieved by the order passed by the Court of Judge Small Causes striking off their defence under Order 15 rule 5 of the Code of Civil Procedure as it is applicable in the State of Uttar Pradesh.
(2.) OPPOSITE party no. 3 filed suit against the petitioners for eviction and recovery of arrears of rent. According to the averments made in the writ petition, which have not been disputed, the petitioners deposited, on the first date of hearing, the entire amount contemplated under the first clause of sub-rule (1) of R. 5 of Order ] 5 but thereafter there was default in deposit of the amounts contemplated under the later cause, namely, rent for two months. The petitioners moved an application seeking permission to deposit this amount but the application was rejected by the impugned order and the defence was struck off. The petitioners have approached this court under Article 226 of the Constitution. I have heard Sri A. N. Verma, learned counsel for the petitioners, and Sri Brijesh Kumar, learned counsel for opposite party no. 3. Order 15 rule 5 under which the impugned order has been passed by the court below reads as follows :- "(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 centum 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, and in the event of any default in making the deposit of the entire amount admitted 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 his defence. Explanation 1..................... Explanation 2..................... Explanation 3..................... (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. Clause (1) of the above rule provides that the court may strike off his defence. From this language it is apparent that the striking off of the defence is discretionary with the court and even where default has been made in deposit of the amount contemplated under the clause the court is not bound to strike off the defence. If the court passes an order striking off the defence, being conscious of the extent of the power conferred under the sub-rule, the order may not be treated to be bad in law but where the court has been under a misapprehension regarding the exact scope of its power the order will be amenable to the writ jurisdiction of this Court. What has, therefore, to be determined in the present case is whether the court was conscious of the extent of the power conferred upon it under clause (1). The impugned order in the present is annexure no. 4. The material portion of the impugned order reads as follows :- "I have heard the counsel for the parties and have gone through the material available on the file. In this case through C-40, the defendants have requested on 8-12-1978 for permission to deposit the rent for October and November, 1978. We find that in this case the issues were framed on 22-11-1978 much before the moving of above C-40, and thus the hearing of the case had started and the court had applied its mind on merits of the case. In the circumstances of the case and considering the fact that the application C-44, particularly for the payment of rent for October and November, 1978, has not been moved giving any reason for delay in deposit of the rent within period prescribed under Order 15 rule 5 CPC, in my opinion, the defendants cannot be permitted now to deposit the rent as claimed in C-44 and the application C-42 for striking off the defence deserves to be allowed." (emphasis supplied) (No emphasis marked in certified copy-Editor). From the underlined portions of the above order it is obvious that the learned Judge was of the opinion that once there was default in depositing the amount and that default had not been explained, the Court was bound to strike off the defence. In taking this view the learned Judge committed manifest error. Even where no explanation has been offered by the defendant regarding his default, the court is not bound to strike off his defence the court may, on the facts and circumstances of the case, come to the conclusion that it was not a fit case for striking off the defence. The court may on a consideration of the past conduct of the defendant decline to strike off the defence. Similarly where the court finds that on the first date of hearing the entire amount that was required to be deposited at that stage, was deposited and default was committed in respect of rent for a few months, the court may refuse to exercise its discretion in favour of the plaintiff who insists upon the defence being struck off. Striking off the defence has serious consequences. It renders the defendant without a defence although he may have a very good defence to defeat the plaintiff's case. The discretion in favour of striking off the defence should therefore be exercised with great care and caution. A person who makes persistent defaults may not be entitled to claim discretion in his favour but a person who has committed default only once or twice, which in the circumstances appearing on the record appears to be inadvertent, may not be visited with his onerous liability of having his defence struck off. The past conduct of the petitioner not having been given due consideration by the court below and the court below being under a mistaken notion regarding its powers under Order XV rule 5, its order cannot be sustained.
(3.) SRI Brijesh Kumar, learned counsel for the plaintiff opposite party, however, argued that the provision in Order XV rule 5 regarding deposit of the amounts mentioned therein within the specified time is mandatory and, therefore, once default is committed and no explanation is furnished therefor within the time specified in clause (2), the court has no option but to strike off the defence. I agree with the learned counsel that the provision regarding deposit is mandatory in the sense that a tenant cannot say that it is discretionary with him to deposit the amount or not to deposit the same. But on the language of the Rule itself it cannot be held that in all cases of default, irrespective of facts and circumstances, the court is bound to strike off the defence. There was some factual controversy in the present case regarding the copy of the application allegedly moved by the petitioners seeking permission to deposit rent for the months of October and November, 1978. It has been noticed from the impugned order that the court below has observed that no reason had been given by the petitioners for the delay in depositing the amount. Along with the writ petition Annexure 1 has been filed which purports to be a copy of the application moved on behalf of the petitioners seeking permission to deposit rent for the months of October and November, 1978. According to the plaintiff, opposite party no. 3, Annexure 1 is not the correct copy of the said application. Along with the counter-affidavit a copy, purporting to be a correct copy of that application, has been filed as Annexure C-2. The learned counsel for the plaintiff opposite party no. 3 had argued that in view of the fact that a concocted document had been filed in the present case the petitioners were not entitled to any relief. The petitioners had not effectively countered the factual allegation made on behalf of the opposite party. However, the mistake, if any does not appear to be deliberate because Annexure no. 1 also does not contain any explanation for the failure to deposit the rent for two months. In the circumstances I do not consider it a fit case where the petition should be rejected on account of filing of an allegedly concocted document. It may also be noticed that neither party has filed a certified copy of the application that was actually moved in the court below.;