Prakash Krishna, J. - (1.) THIS is tenant's petition. The contesting respondents who are landlord of property in question instituted a suit No. 812 of 1997 in the Court of Judge, Small Causes Court against the petitioner for recovery of arrears of rent and damages and ejectment. A written statement has been filed by the petitioner. An application dated 23rd of March, 1983 was filed on the allegation that the tenant is not depositing the rent due and is also not depositing monthly rent in accordance with the provisions of Order XV, Rule 5, C.P.C. and as such he has committed breach of mandatory provision of Order XV, Rule 5, C.P.C. and his defence be struck off. Objection by way of reply to the said application was filed on the pleas inter alia that the defendant tenant is depositing rent in the Court in accordance with law and all the tenders are available on the file of Court. It was also stated that on 8th of March, 1978 a sum of Rs. 1,095.25 was deposited under section 20(4) of the Act and since then he is depositing the rent continuously and the last deposit was made on 2nd of April, 1983 for the period of 1st of April, 1983 to 31st of May, 1983. The Trial Court by its order dated 19th of April, 1983 found that there is no representation on the record from the side of defendant explaining the delay in making deposits. The Trial Court in its order has given particulars of all deposits made by the tenant commencing from the period March, 1979 to February, 1981 and noticed that the defendant tenant although has deposited the amount but with some delay. There being no representation explaining the delay in making deposits, Trial Court was of the view that merely because he has made some advance deposit is not enough to save the striking off the defence. The said order has been confirmed in civil revision No. 351 of 1983 by the Court below. Both the above Orders are under challenge in the present writ petition.
(2.) HEARD Shri Aditya Narain, learned Counsel for the petitioner and Shri Anoop Banerjee, learned Counsel for the contesting respondents. The facts of the case are not much in dispute. The only question that arises is whether on the facts of the present case the order striking off defence of the defendant, which is undoubtedly penal in nature, should be sustained or not. It is true that deposits have been made with some delay and there is no representation explaining the delay in making deposit. It also appears that certain deposit was made by the petitioner under section 20(4) of the Act, amounting to Rs. 1,095.25. The Courts below have taken the said deposit as not valid as it has not been made "unconditionally" as the defendant tenant is contesting the rate of rent. This is one aspect of the case. It is relevant for the purposes of section 20(4) of the Act. Another aspect is that, as a matter of fact, the amount of Rs. 1,095.25 is in deposit with the Court for the benefit of plaintiff landlord. The submission of the petitioner is that the said amount may also be taken into consideration for the purposes of Order XV, Rule 5, C.P.C. He submits that so far as the tenant is concerned he has parted with the money and money is lying in the Court. The object of Order XV, Rule 5 is to ensure payment of rent during the pendency of the suit and the said object is being achieved if the amount lying with the Court under a different section, in the same proceeding, deposited by a tenant is considered under Order XV, Rule 5, C.P.C. also.
(3.) IN this factual background, it is apt to examine the judgment of the Apex Court in Bimal Chand Jain v. Shri Gopal Agrawal : 1981 (7) ALR 556. Apex Court in this case has held that sub -rule (1) obliges the Court to strike off defence. But it must be remembered that an order under sub -rule striking of defence is in nature of penalty. The relevant portion of the report is reproduced below: A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is 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. It will always be a matter for the judgment of the Court to decide whether on the material before, it notwithstanding the absence of a representation under sub -rule (2), the defence should or should not be struck off. The word "may" in sub -rule (1) merely vests power in the Court to strike off the defence. It does not oblige it to do so in every case of default. To that extent we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provision of Clause (1) of Rule 5 of Order XV.;