M.Wahajuddin, J. - (1.) Opposite party landlords brought a suit for ejectment, arrears of rent and mesne profit against the revisionist defendant. The trial court has struck off the defence of the revisionist-defendant by its order dated 15-9-1984 under Order 15 Rule 5 C.P.C. as enforced in Utter Pradesh. That provision runs as follows : "5. Striking of defence on non-deposit of admitted rent, etc:-(1) In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the Court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or as the case may be, or strike-off his defence". The trial court after referring to the periods of default and dates of deposit held that no good and sufficient reasons have been given for delayed deposit. It is being urged that the precedence lay down that the court should exercise its mind and should not strike-off the defence on technical considerations and, if the delayed deposit is bona fide, the trial court should give benefit to the tenant as the provisions of Order 15 Rule 5 C.P.C. are penal in nature. It has also been held in one of the rulings cited that even in absence of any representation the court should consider the material on record as to pass orders.
(2.) The learned counsel for the opposite party relied upon Jitendra v. Ist Addl. District Judge, 1981 A.R.C. 445 . a single Judge pronouncement laying down that representation, if filed beyond the prescribed time, should not be entertained and the court has no option but to reject the defence. It would be found that as per order 15 Rule 5 of Explanation 3 in sub-rule (2) it has been provided that the court may consider representation of the defendant considering the delay, it is made within 10 days of the date of first hearing, namely, the date when the written statement is filed. It would appear that the suit itself was instituted in February, 1984, and the service was effected upon the defendant and written statement was filed on 7-3-1984 and about this there is no dispute. The representation itself was filed on 15-9-1984. The representation, thus, was undoubtedly belated, but I have to bear in mind the principles laid down in a number of pronouncement in this connection. The cases relied upon by the learned counsel for the revisionist are Vimal Chand Jain v. Gopal Agrawal, 1981 A.L.J. 908 . Sudesh Kumar v. Nargapai and others, 1984 A.R.C. 242 . and Pooran Chand Gupta v. Second Addl. District Judge Agra, 1983 A.R.C. 817 . The gist and ratio of these pronouncements are that the court should exercise its mind, must consider the matter of bona fides, should not reject the tenant's plea on technical grounds, must consider the materials on record, etc. and in the Supreme Court case of Vimal Chand Jain (supra) it has been further observed that notwithstanding want of any representation the court should exercise discretion considering every fact and circumstances.
(3.) The matter is, therefore, to be approached in the background and context of the broad principles and guidance contained in the aforesaid pronouncements and while exercising discretion mind has to be exercised and materials on record are to be taken into consideration. But I may hasten to add that for either side technicalities should not prevail as such if the matter can be disposed of by this Court in revision, unnecessary delay should not be caused.;