N.D. Ojha, J. - (1.) IN this case the defence of the Petitioner was struck off by the Judge, Small Causes, under Order 15 Rule 5 Code of Civil Procedure on the ground that he had not only failed to deposit the admitted rent on or before the first hearing of the suit but had also made nine defaults in depositing the monthly rent which he was required to do regularly as contemplated by Order 15 Rule 5 Code of Civil Procedure. These defaults were, in respect of the 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 11th and 12th deposits. The Petitioner had made a representation and the ground shown for these defaults was found to have not been established. The finding on the question as to whether the cause shown for the various defaults was sufficient or not was essentially a finding of fact based on appraisal of evidence. This Court did not find any good ground for interference with the findings recorded by the Judge, Small Causes, and in revision by the Additional District Judge. The writ petition challenging the orders striking off the defence was consequently dismissed. The present application has been filed with a prayer that the order dismissing the writ petition may be reviewed.
(2.) IN support of this application reliance has been placed on an order passed by the Supreme Court on 17th August, 1982, in Special Leave Petition No. 6671 of 1982 Bimal Chand Jain v. Sri. Gopal Agarwal, and on its basis it has been urged that if before the actual decision of the application under Order 15 Rule 5 Code of Civil Procedure by the Judge Small Causes, the amount of rent payable till that date had been deposited by the tenant the defence could not be struck off even if there may have been default either in depositing the rent on or before the first hearing of the suit or in depositing the monthly rent regularly during the pendency of the suit and even if no sufficient cause had been shown for the default. Having gone through the judgment of the Supreme Court dated 17th August, 1982, referred to above, a copy of which has been filed along with the review application, I find it difficult to acc depositing t the submission made by counsel for the Petitioner that it is the view which has been taken in the aforesaid case by the Supreme Court. It appears that on the facts of Bimal Chand Jain's case (supra) the Supreme Court was of the view that that was not the kind of the case in which the defence of the tenant could be struck off. The decision of the Supreme Court, therefore, apparently rests on the facts of that case. In Punjab Cooperative Bank Ltd. v. Commissioner of Income Tax : AIR 1940 PC 230 relying on the observations of Lord Halsbury in Ouinn v. Letham, (1901) AC 495 it was held that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed or qualified by the particular facts in which such expressions are to be found. In Raval and Co. v. K.G. Ramachandran : (1974) 1 SCC 424 it was held in paragraph 15 that any general observation made by the Supreme Court cannot apply in interpreting the provisions of an Act unless the Supreme Court has applied its mind to and analysed the provisions of that particular Act.
(3.) AS pointed out above in the judgment dated 17th August, 1982, in Bimal Chand Jain's case (supra) the Supreme Court apart from making the observation that that was not the kind of case in which the defence of the tenant could be struck off, has not with reference to the terms of Order 15 Rule 5 Code of Civil Procedure as substituted by the State of Uttar Pradesh laid down as a proposition of law that a proper interpretation of that provision was that notwithstanding default either in depositing the admitted rent on or before the first date of hearing of the suit or in depositing the monthly rent regularly during the continuance of the suit the defence is not to be struck off even if no cause at all is shown for the default or the cause shown is found to be wholly unsatisfactory if the tenant deposits the entire amount due on or before the date on which final orders are passed in the application for striking off the defence. For taking this view Order 15 Rule 5 Code of Civil Procedure would have to be rewritten and an Explanation or Proviso will have to be added to the effect that notwithstanding any default that may have been committed under Sub -rule (1) of Order 15 Rule 5 Code of Civil Procedure and notwithstanding the fact that the court of fact may find that either no cause at all has been shown for the default or that the cause shown for the default was not at all sufficient the defence was yet not be struck off in case on or before the passing of final orders on the application made for striking off the defence the whole amount due till that date is deposited. To me it appears that the jurisdiction of rewriting the provisions of Order 15 Rule 5 Code of Civil Procedure in the manner stated above vests in the legislature.;