S. R. Singh, J. - (1.) Heard counsel for the parties.
(2.) THE petitioner's defence was struck off under Order XV, Rule 5 of the Code of Civil Procedure by the learned Judge, Small Causes Court, Varanasi vide order dated 6. 4. 1995. The revision preferred against the said order having been dismissed by the learned 2nd Additional District Judge, Varanasi, vide order dated 14. 9. 1995, the C. P. C. as applicable to the State of Uttar Pradesh. The provision reads as under: "5. Striking off defence for failure to deposit admitted rent ere - (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defen dant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposits the monthly amount due within week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount ad mitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike of his defence, Explanation-I - The expression 'first hearing' means the date of filing written statement or for hearing mentioned in the summons or where more than one of such dates are men tioned, the last of the dates mentioned. Explanaiion-2 - The expression 'entire amount admitted by him to be due' means the entire gross amount, whether as rent or compen sation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U. P. Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972. Explanation-3 (1) - The expression 'monthly amount due' means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account. (2) Before making an order for striking off defence; the Court may consider any repre sentation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff. Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited. " 3, An order under sub-rule (1) of R. 5 striking off the defence is in the nature of penalty. Power is, therefore, not supposed to be exercised mechancially and a serious responsibility rests on the Court in the mat ter. It cannot be gainsaid that the discretion of striking off the defence has to be exer cised reasonably and not capriciously or ar bitrarily. In other words it is "to be exercised not arbitrarily, but on sound and reasonable basis guided by judicial principle". For a proper exercise cf discretion, it is necessary that the Court must direct itself to all the relevant questions including the explana tion, if any, given by the defendant for non-deposit of the rent etc. as pei requirement of sub-rule (1) of R. 5 of Order XV of the Code of Civil Procedure. Principle in this regard is fairly well-stated in the following words: "if the exercise of a discretionary? power has been influenced by consideration thai cannot law fully be taken into account, or by the disregard of relevant consideration, a Court will normally hold that the power has not been validly exercised. . . " "if the ground of challenge is that relevant considerations have not been taken into account, the Court will normally try to assess the actual or practical importance of the factor that was over looked even though this may entail a degree of speculation. It will often be absurd for a Court to hold that a discretion had been invalidly exercised because a trivial factor had been overlooked. " 4. The explanation given by the petitioner in the instant case was that he had been regularly depositing the rent at the rate of Rs. 50/-per month to his, counsel Sri Gopi Nath Singh for the purpose of deposit ing the same in the Court and Sri Gopi Nath Singh had been assuring the petitioner that the rent was being deposited in the Court. The petitioner, it is stated, believed the statement of Sri Gopi Nath Singh in good faith. Relevant averments in this regard as made in paragraphs 3, 4, 5 and 6 of the representation dated 1-12-1994 of the petitioner are quoted below: ....Vernacular Text Ommited.... Matter In support of the averments aforestated an affidavit Annexure 6 was also filed by the petitioner. The point was specifically raised before the Courts below but no categorical finding has been returned by either the learned Judge, Small Causes Court, Varanasi or the learned Additional District Judge, Varanasi in their orders dated 6. 4. 1995 and 14. 9. 1995 respectively on the question as to whether the petitioner had been really paying rent to his counsel at the rate of Rs. 50/- per month for the pur pose of depositing the same in the Court with a view to complying with the require ments of sub-rule (1) of Rule 5 of Order XV, C. P. C. A categorical finding on the question aforestated was, in my opinion, a must for proper exercise of the discretion to strike off the defence under Order XV, Rule 5 C. P. C. In the circumstances of the case, therefore, I am of the view that the impugned orders cannot be sustained. 5. Accordingly the writ petition suc ceeds and is allowed. The impugned orders dated 6. 4. 1995 and 14. 9. 1995 are hereby quashed. Learned Judge, Small Causes Court, Varanasi is hereby directed to re- ex amine the matter afresh and in the light of the observations made in the judgment. Petition allowed. .;