Siddhartha Varma, J. - (1.) This application under Article 227 of the Constitution of India has been filed by the tenants-defandants against the order dated 24.8.2018 by which the defence of the defendants had been struck off. A perusal of the order itself shows that even though the defendants-tenants had deposited the rent, it had been struck off as the same had been deposited after some delay. The chart, which has been filed with the Short Counter Affidavit, at page 7 also shows that the last time the rent which was belatedly paid was in the month of December 2017. Thereafter there is no allegation that any delay had been there in the payment of rent. The tenant here has filed a rejoinder affidavit and had stated that he would, during the pendency of the suit, continue to pay the rent as was payable on his behalf under law.
(2.) Learned counsel for the petitioners has also placed reliance upon the judgment of the Supreme Court reported in (Bimal Chand Jain Vs. Sri Gopal Agarwal, 1981 ARC 463) and has stated that it has been held in paragraph 6 that every Court had to remember that striking off the defence was something which was penal in nature and had serious consequences and, therefore, Courts should not as a matter of course strike off the defence. He further submits that it has also been held that certain discretion should always be exercised by every Court while passing orders regarding the "striking off" of defence. He submitted that the Supreme Court had held that since the word "may" had been used in the Statute, the power vested in the Court should be very sparingly used and that too when the Court found that an actual grave reason for striking off the defence was there.
(3.) Learned counsel for the petitioners has further submitted that in the instant case, evidence of both the parties had been led and the Suit was ripe for trial/disposal and, therefore, a great prejudice would be caused to the defendants if the defence was struck off at this stage. He further submits that even though the rent was paid after some delay, it had in fact been paid to the landlord.;