S.U.Khan, J. - (1.) MISC . Application No. 112317 of 2004 was filed on behalf of the respondents for recalling my order dated 7.7.2004 through which three persons had been impleaded as petitioners 2 to 4. During arguments it appeared that the entire writ petition could be disposed of within the time which would be consumed in deciding the recall application. Learned Counsel for both the parties, therefore, agreed for final disposal of the writ petition. Heard learned Counsel for the parties.
(2.) SANJAY God, since deceased and survived by respondent Nos. 3 to 5, filed S.C.C. Suit No. 452 of 1978 against original petitioner Mrs. Doris Herold Meyer. The suit was initially decreed ex -parte. Thereafter it was restored. The defendant -petitioner questioned the relationship of landlord -tenant. An application was filed by the plaintiff for striking off the defence which was allowed on 12.4.1990. Against the said order S.C.C. Revision No. 51 of 1990 was filed, which was dismissed on 20.2.1991 by the Xth A.D.J. Moradabad, hence, this writ petition. In this writ petition a stay order was passed on 14.3.1991 recording therein that the question of validity of Order XV, Rule 5, C.P.C. was sub -judice in the Supreme Court, hence the proceedings of the suit shall remain stayed. It is stated that against the said stay order, special leave petition was filed before the Supreme Court, being S.L.P. No. 4150 of 1992 in which leave was granted and an order was passed that respondents should make deposit of the arrears of rent due from 1978. Later on the appeal was dismissed along with the leading appeal. It was held that provisions of Order XV, Rule 5, C.P.C. are valid. The judgment is in Pt. Rishi Kesh and another v. Shrimati Salma Begum : 1995 (26) ALR 78. In pursuance of the interim order of the Supreme Court dated 24.8.1992 petitioner deposited the entire amount as claimed in the plaint. According to the learned Counsel for the petitioner the amount due till 2008 has been deposited.
(3.) IN view of the pleas taken by the defendant in the written statement it is doubtful as to whether provisions of Order XV, Rule 5, C.P.C. are applicable or not (under the said provision tenant is required to deposit admitted rent failing which his defence is to be struck off). Moreover, amount has also been deposited as directed by the Supreme Court. It is always desirable to hear and decide the matter on merits after providing opportunity of hearing to all the parties unless one of the parties is utterly negligent. In view of all this even if it is held that the said provision is applicable, the defendant deserves condonation in making deposit in view of bona fide confusion regarding legal position. The Supreme Court in Kailash v. Nanku : 2005 (1) ARC 861 : 2005 (29) AIC 95 (SC) has held that even after expiry of 90 days from the date of service of summons defendant may be permitted to file written statement under Order VIII, Rule 1, C.P.C. on payment of heavy cost The language of Order VIII, Rule 1, C.P.C. is as peremptory as of Order XV, Rule 5, C.P.C. The interpretation of the Supreme Court in respect of Order VIII, Rule 1, C.P.C. may also be applied to Order XV, Rule 5, C.P.C.;