Santosh Kumar Phaujdar, J. - (1.) THE present respondent No. 2 Naresh Chand Jain filed Suit bearing S.C.C. Suit No. 26 of 1985 which was being heard before the VIth Additional District Judge, Saharanpur, holding S.C.C. powers. It was a suit for eviction of the defendant revisionist who had been a tenant in the suit premises. During the pendency of the suit the plaintiff filed an application invoking power of the Court under Order XV, Rule 5 C.P.C. (as introduced for the State of U.P.) and praying for striking off the defence as the defendant revisionist had failed to make the deposits of month to month rent during the pendency of the suit. It was stated that rent had not been deposited regularly in due time. The revisionist had objected to such prayer and claims that complete deposit was made. He also filed a representation to condone the delay in making the deposit. It was stated that the defendant was an illiterate farmer and visits to Courts takes his entire day and that caused the delay in deposit of the rent in time. The Court below had heard the parties and recorded an order dated 6.3.90. He accepted the prayer of the plaintiff, rejected the objection of the tenant as also his representation and struck off the defence. The matter was directed to be put on 20.3.90. The present revision application was filed 26.3.90 and the respondent was noticed. The impugned order was stayed up to 2.5.90. By a subsequent order dated 10.5.90 this interim Order was extended up to 23.5.90 and was finally extended till further orders by an order dated 31.7.90.
(2.) IT was urged on behalf of the revisionist that his defence was not liable to be struck off as deposits upto the period of 30.6.90 had already been made and on the date of the impugned order there was no default. Rather there was substantial compliance with the requirement of the law. It was alleged further that the provisions of Order XV, Rule 5 C.P.C. were there only to protect the interest of the landlord against vexatious delays that may be practised by the defendant tenant and not for the purpose of shutting out the defence on some small default. It was further stated that on an earlier occasion in this very case the trial Court had rejected a prayer of the plaintiff on 5.12.88 made under Order XV, Rule 5 C.P.C. and this rejection should have accrued as res judicata between the parties. In the course of his arguments the learned Counsel for the revisionist submitted that the law does not require that whenever there be a default on the part of the defendant as contemplated under Order XV, Rule 5 C.P.C. the Court must strike off the defence. A discretion was given to the Court to take this ultimate measure and the discretion should have been exercised judicially. In reply to these submissions the learned Counsel for the respondents plaintiff submitted that the defendant had been habitual defaulter and although in the past his defaults were brought to the notice of the Court, he did not mend himself. It was contended that the earlier order of rejection of the application to strike off defence would not operate as res -judicata as it was always open for the plaintiff to reiterate his prayer for subsequent defaults.
(3.) THE learned Counsel took me through case laws in support of their versions, number of cases stood reported in, 1989 (2) A.R.C. 54, 130, 158 and 532. The case reported at page 54 of the Volume is a pronouncement by an Hon'ble Single Judge of the Lucknow Bench in the case of Ratan Bhushan Shukla. It was held therein that the power of striking off defence was not to be exercised mechanically and the mandate contained in Rule 5, Order XV would necessarily result in striking off the defence even if no explanation was furnished before the Court. The Lucknow Bench in this case relied on a decision of the Supreme Court as reported in Vimal Chand Jain v. Gopal Agarwal : A.I.R. 1981 SC at page 165 : 1981 ARC 463 (SC). It was held by the Supreme Court that the power of striking off the defence was not to be exercised mechanically. The case law at page 130 is again a pronouncement by another Hon'ble Single Judge of the Lucknow Bench. Here also a case of striking the defence camp up before the High Court. It was a case when the tenant had deposited the entire amount admitted by him. There was some dispute between the rates of rent as claimed by the landlord and was accepted by the tenant. The High Court was of the view that under the circumstances the order for striking off the defence was not proper. The case reported at page 158 of this Volume was also one where the tenant had challenged the rate of rent and had deposited the rent on the rate admitted by him. It was held that the order of striking off the defence was unsustainable. In the last case reported in this volume at page 532, the Hon'ble Court traced the legislative history of Order XV, Rule 5 C.P.C. and found that prior to 1972, there was no such provision in the Code and the same was produced by the U.P. Civil Laws (Amendment) Act, 1972. The Court also considered the view of the Supreme Court on this point and it was concluded that the law that emerged from the decision of the Supreme Court was that even if there be no representation by a defaulting tenant but there were sufficient materials on record before the Court to indicate existence of good reasons for condoning the default the Court had a reserved power to reject the application for striking the defence. Even if an application was made beyond ten days as provided but there was sufficient explanation for the delay, the Court should have taken into consideration the same and should have exercised its own discretion judicially. Reliance was placed in this case also on the decision of the Supreme Court in the case of Vimal Chand Jain v. Gopal Agarwal (supra).;