B.L.Loomba, J. - (1.) RESPONDENT no. 3 Harendra Dutt Tripathi who is the landlord of the house in question filed suit no. 28 of 1977, under section 20 of U. P. Act No. XIII of 1972 seeking eviction of the tenent present petitioner Bharat Bhushan Misra on the ground that he was in arrears of rent from August, 19/6. The rate of rent was claimed to be Rs. 70/.- per month. The suit was contested, interalia on the ground that the rate of rent was Rs. 30/- and not Rs. 70/- per month. The evidence in the suit concluded on 18-1-1980 and the suit was fixed for arguments for 7-2-1980 from which date it was adjourned to 21-2-1980. The plaintiff-landlord moved application under Order 15 Rule 5 CPC seeking striking off the defence of the tenent on the ground that he failed to take the deposits as required under the said provisions. The defendent tenent filed objections raising the plea that the entire rent up to Feb. 1980 had been deposited though rent for certain intermediary months was not deposited strictly within the requisite time of one week from the date of accrual of the rent.
(2.) LEARNED Munsif exercising Small Gauses powers recorded findings of fact that the defendant tenent deposited rent for certain months beyond the permitted time. The details of the default in the form of delayed deposits were given as follows ; Period for which rent was due deposited on May, 1977 5-7-1977 June, 1977 8-8-1977 August, September and October, 1977 1-12-1977 November, December, 1977 and January, 1978 22-2-1978 February and March, 1978 4-5-1978 May, June and July, 1978 7-9-1978 August, September and October, 1978 16-12-1978 November and December, 1978 8-2-1979 February, March and April, 1979 7-7-1979 May and June, 1979 August, 1979 September and October, 1979 December, 1979 December, 1979 22-1-1980 The learned trial court on the basis of the delayed payments as above held that the defendant-tenent committed default and failed to comply with the requirements of Order 15 Rule 5 CPC and this rendered his defence to be struck off. The revision against the judgment and order of the trial court was dismissed by the District Judge, Gonda, on 18-12-1980. The validity of the impugned orders have been challenged mainly on two grounds, firstly that the explanation offered by the defendant-tenent (present petitioner) for delay in making the deposits of the rent for certain months was not duly considered and secondly that the question for consideration of the application under Order J5 Rule 5 CPC did not arise at the stage when the suit was listed for arguments. It is also submitted that the provisions of Order 15 Rule 5 CPC required to be considered liberally and not literally and strictly as has been done by the two courts in this case.
(3.) THIS is the uncontroverted position that the prayer for striking off the defence under Order 15 Rule 5 CPC was made when the suit had reached the stage of arguments. Learned counsel for the respondent had relied on a decision of this court in Sohan Lai v. Hodal Singh, in Civil Misc. Writ Petition No. 1947 of 1977, decided on 31-1-1979 as reported in Summary of Cases 1979 (5) ALR 78. The defence in that case was struck off by the revisional authority. THIS order was upheld by this court with the observation that the word 'may' even if was prime facie enabling, tbe legislature used it in the sense of must or shall hand a court is obliged to pass an order striking out the defence if the conditions of Order 15 Rule 5 CPC have not been complied with. It was, however, further observed that under Rule 5 a court can after considering any representation made by a tenent allow him further time for depositing the rent but this cannot be interpreted as meaning that the striking off the defence is discretionary. The fact that the Legislature has conferred power on a court to extent time that cannot be interpreted to mease that the court leed it optional to obey or not. As against this, there is a recent decision of this court in Rajendra Pal Garg v. Additional District Judge, Dehradun, 1987 (2) ARC 289. In that case application under Order 15 Rule 5 CPC was moved after evidence had been recorded. The trial court rejected this application. The revisional court remanded the matter with the direction to the trial court to decide the application as a preliminary issue for striking off the defence under the said provisions The writ petition was allowed with the observation that : " Since the plaintiff has already closed his evidence and three witnesses have been examined on behalf of the petitioner, in my opinion it is not proper to decide the preliminary issue at this stage. " The decision in Rajendra Pal Garg's case being latter, I am bound by it. Even otherwise I respectfully agree with the view adopted in Rajendra Pal Garg's case. The power to strike out the defence is conditioned by the fact that the court to consider any representation as may be made by the defendant, such representation made by the defendant as to the default for payment of arrears month after month rent. Such representation as is provided in sub-rule (2), is to be made within ten days of the first hearing or, of the expiry of the week referred to in sub-rule (1) as the case may be. Appropriate course for a defaulting tenent obviously is to make representation within the time permitted under sub-rule (2). In the present case however, there was no prayer for striking off the defence and in a way that could have become a contributory factor for delayed deposit in respect of certain months. The suit was filed on 30-5-1977 and as would appear from the order of the trial court there was no default in payment of arrears of rent for the period prior to April, 1977 and for that reason there was no case to seak striking off the defence. Had any application been moved under Order 15 Rule 5 CPC at the stage of first hearing of the suit, that would have ajerted the defendant and the deposit could have been made month after month as per the requirement of the said provision. The plaintiff respondent chose not to seek the striking out of the defence of the defendant-petitioner and delay occurred in payment of rent for certain months. The fact, however, remains that admittedly the entire rent due upto February, 1980 had been deposited by the defendant-petitioner. Learned counsel for the respondent submits that rent for the months regarding which there is no reference in the order of the trial court was actually not deposited. This submission cannot be accepted because the position which transpires is that the learned trial court had only mentioned months the for which there,was delay in payment. As for the other months the payments would obviously have been made within the specified time. In the facts of the present case there was no justification for striking off the defence when the evidence had been concluded and the suit was at the argument stage.;