- (1.) Heard learned counsel for the parties.
(2.) On the request of the learned counsel for the parties, the petition is being decided at the admission stage without calling for counter affidavit. The tenant/applicant has approached the Court assailing order dated 22 September 2015 passed by the revisional court/Additional District Judge, Court No. 12, Allahabad in Civil Revision No. 101 of 2012 (Kedar Nath and others Versus Waqf Sheikh Abdulla and others) arising from order dated 31 January 2012 passed by the Judge Small Causes Court, Allahabad in Original Suit No. 22 of 1999, whereby, the application under Order XV Rule 5 C.P.C. filed by the first respondent has been allowed. The premises No. 205/46, Minhajpur, Dr. Katju Road, Allahabad belongs to the frist respondent, a suit for eviction, arrears of rent and damages was instituted. During the pendency of the suit, an application under Order XV Rule 5 C.P.C. was filed with the allegation that the suit is of 1999 but no amount was deposited on the first date of hearing nor regular deposit was made, thereafter. The applicant contested stating that the entire amount was deposited on the first date of hearing. The trial court allowed the application, struck off the defence of the applicant. The revisional court affirmed the order passed by the trial court. The learned counsel for the applicant would submit that the courts below have failed to record the first date of hearing, written statement was filed on 13 October 2008 and on the said date a sum of Rs. 4000/- was deposited which included the rent from January 1996 to September 2008, interest and expenses, further, it is sought to be urged that even presuming that there was some delay in depositing the subsequent sums, even then the application under Order XV Rule 5 could not have been allowed, admittedly the respondent-landlord received the entire sum. It is, therefore, submitted that the purpose of Order XV Rule 5 is to ensure the payment of the rent and not being a penal provision to punish the defendant.
(3.) Learned counsel appearing for the respondents, in rebuttal would not dispute that the entire sum was deposited but would submit that the deposit was inadequate and irregular, therefore, courts below were justified in allowing the application. Rival submission fall for consideration. The Supreme Court in Bimal Chand Jain Versus Sri Gopal Agarwal, 1981 3 SCC 486 on considering the provisions of Order XV Rule 5, as applicable to U.P., observed that the sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest, thereon, at the rate of nine per cent per annum, whether or not he admits any amount to be due. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. Sub-rule (1) obliges the court to strike off the defence which is in the nature of a penalty. A serious responsibility, therefore, rests on the court in the matter, the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so.;