O. P. Saxena, J. - (1.) THIS is a revision under section 25 of the Provincial Small Cause Courts Act against the order dated 1-12-1983 passed by VIII Addl, District Judge, Allahabad striking off the defence under Order XV Rule 5 CPC.
(2.) THE admitted facts are that in a suit for arrears of rent, ejectment and damages for use and occupation, there was non-compliance of the provisions of Order XV Rule 5 CPC inasmuch as there was delay in depositing of rent for the months of June, July, August, September, and October 1983. THE rent for June and July was deposited on 27-9-1982. THE rent for August and September was deposited on 26-10-1983. THE rent for October and November was deposited on 28-11-1983. THE plaintiff opposite party gave application paper number 57-Ga for striking off the defence. Defendant applicant filed objection paper number 59-Ga. THE trial court found that no explanation for delay in depositing the rent was given either in the objection or even during the course of arguments. It, therefore, passed the impugned order and hence this revision. The learned counsel for applicant referred to the case of Bimal Chand Jain v. Sri Gopal Agarwal, 1981 AWC 529 in which the Supreme Court laid down the following proposition : (1) That the word 'may' in sub-rule (1) of Order XV Rule 5 CPC confers a discretion on the court to strike off the defence in case of default. It does not oblige it to do so in every case of default, (2) that the discretion has not to be exercised mechanically, (3) that the court has discretion not to strike off the defence if on the facts and circumstances of the case it finds good reason for doing so, and (4) that even in the absence of a representation under sub-rule (2), the court can decide on the material on the record whether or not the defence should be struck off. In Bimal Chand Jain v. Sri Gopal Agarwal, 1983 (1) ARC 203, an off shoot of the same case, the Supreme Court on the facts of the case condoned irregularity in deposit of rent. The appellant was directed to deposit advance rent for two years. No proposition of law has been laid down that the delay should be condoned even if no explanation has been offered for the irregularity in deposit of rent.
(3.) IN the case of Bhupendra Nath Rastogi v. Addl. Civil Judge, Bijnor, 1982 ARC 480, it was held that there was not a single month's rent which had become due and was not deposited within time. It was further held that the representation of the tenant was not decided in the light of observation made by Supreme Court. The dismissal of application for condoning delay on the ground that the application was moved after the expiry of the period provided in sub-rule (2) was held to be erroneous. In the case of Vishwanath v. Ist Addl. District Judge, Bijnor, 1982 U. P. RCC 517, it was held that Order XV Rule 5 CPC is not intended to be a trap for the tenant. It was further held that where there is no prejudice caused to the plaintiff and the rent has been deposited, the delay in deposit due to any reason should ordinarily be condoned.;