R.K. Mahajan, J. - (1.) THIS is a revision under Section 25 of the Provincial Small Cause Courts Act against the order dated 9.3.1994 of Additional District Judge, Ballia striking off the defence of the applicants in S.C.C. Suit No. 306 of 1982 between Smt. Sahodra Devi and others and Bhawani Vastra Bhandar and others. Admittedly, the plaintiff -respondents are landlords and the defendant -applicants are tenants of the premises in dispute. The plaintiffs filed a suit for recovery of arrears of rent and eviction.
(2.) THE only question which arises for consideration in this revision is as to whether the striking off the defence under Order XV Rule 5 of the Code of Civil Procedure by the court below was legally valid and justified. It appears that the defendants were served for 4.8.1983 for filing written statement and hearing. The defendants filed written statement on that date admitting that Rs. 3,778.75p were due and the rate of rent is Rs. 425/ - per month. The defendants applied for time to deposit the aforesaid amount on 6.9.1983 and 5.10.1983 was fixed for final hearing. The defendants deposited the rent on 28.10.1983 which was to be deposited before 5.10.1983. The court below observed that no application was filed for condonation of delay. The learned counsel for the defendant -applicants has submitted that the court below has not applied its mind on first hearing and there was no question of depositing the rent. He further submitted that even issues were not framed and no date was fixed for evidence. It was further contended that Order XV Rule 5, C.P.C. should not be interpreted technically to deprive the tenants of the residential premises. He further submitted that the tenants had paid all arrears of rent upto February, 1996. On the other hand, the learned counsel for the plaintiff -respondents has submitted that the order of the court below striking off the defence is a valid and perfect order and calls for no interference.
(3.) I have heard the learned counsel for the parties and perused the entire record of the case. After going through the material on record, I am of the view that the court below took technical and harsh view in striking off the defence. The provision of Order XV Rule 5, CPC should not be interpreted in such a way that they should be trapped to evict the tenants. In the present case, the conduct of the tenant is not obdurate and malafide regarding the payment of rent. Under Order XV Rule 5, CPC, it is the discretion of the court to strike off the defence. The striking off defence entails serious consequence of eviction and the tenants may not be able to find out the accommodation. At the same time, the court is also to see that the interests of the landlord is not jeopardised regarding the payment of rent and the tenant walks out without the payment of money. In this case, the act of the defendant -tenants is not mala fide. The learned counsel for the applicants has relied on so many rulings on first hearing. A decision dated 3rd May, 1982 rendered by Hon'ble K.M. Dayal, J. in Civil Misc. Writ No. 6764 of 1980, Vishwanath v. 1st Additional District Judge and others was cited. It relates of proving bona fide regarding the deposit of rent. The trial court should not have struck off the defence. Mere absence of representation or delay in depositing rent or dues could not entitle trial court to strike off defence.;