POORAN CHAND Vs. PRAVIN GUPTA

JUDGEMENT

(1.) A learned Single Judge has referred this case to a Division Bench because he found conflict of opinion in this Court amongst single Judges. The question is whether the Court has discretion not to strike off the defense in case the tenant has made default in depositing the rent and has failed to make any representation within the prescribed time. In Mathura Prasad v. Vikramajit Singh (1978 A. W. C. 523), a learned Singh Judge held that the Court has discretion to strike off the defense if the circumstances so demand. On the other hand, in Mrs. S. Abel v. District Judge and others (A. I. R. 1980 Alld. 302.) another learned Single Judge held that under order XV, Rule 5 C. P. C. if the tenant has defaulted and has made no representation the Court has no option but to pass an order striking off the defense. In the present case, the defendant tenant admittedly committed default in depositing the rent at least for the month of September, 1977 which should have been deposited within time, that is to say by October 7,1977. It is further undisputed that the tenant did not make any representation for con doning the delay. Order XV, Rule 5 C. P. C. was first enacted by the U. P. Civil Laws (Amendment) Act, 1972. It, in substance provided that the tenant should deposit the admitted amount of rent or compensation at or before the first hearing of the suit and also deposit the monthly rent regularly, else his defense was liable to be struck off. It further provided that the tenant who has committed default may make a representation and the Court, after considering it, could allow him further time to make the deposit. Order XV, Rule 5 was repealed and re-enacted by U. P. Act No. 57 of 1976 which came into force on January 1, 1979. The provisions as re-enacted is as follows : "5. Striking off defense on failure on deposit of admitted rent, etc. (1) in any suit by a lessor for the eviction of a lessee after the recovery from him of rent or compensation for use and occupation, the defendant 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 deposit monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off his defence. Explanation 1-The expression 'first hearing means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2-The expression 'entire amount admitted by him to be due' means the entire gross amount whether as rent of compensation 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 a local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3-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 deductions except the taxes if any, paid to a local authority in respect of the build ing on lessor's account. (2) Before making an order for striking off defense, the Court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or, of the expiry of the week referred to in sub-section (i) as the case may be. (3) The amount deposited under this rule may at any time be with drawn 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; Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same. " The provision enacted by the 1976 Act, was more detailed and more light. The tenant was required to deposit the entire arrears along with interest at nine per cent at or before the first hearing, and also to deposit the monthly amount within a week of its accrual. Previously there was no time limit for depositing the monthly rent. The tenant was to deposit the amount of monthly rent regularly. Now he was required to deposit the monthly rent within a week from the date of its accrual. The power of the Court to allow further time to deposit was circumscri bed. Sub-rule (2) authorised the Court to consider the representation provided ' such representation is made within ten days of the first hearing or of the expiry of the week. . . . . . . . . " Thus sub-rule (2) provided a locus penitential to the defaulting tenant; but he must make the representation within ten days of the first hearing or within a week from the date of accrual of rent, as the case may be, If the representation is not made within the specified period of time, the Court has no jurisdiction to consider a time barred representation or condone the delay or extend time. For the defendant applicant it was submitted that the use of word 'may' in sub-rule 1) indicates that nonetheless the Court has discretion not to pass an order striking off the defense. Even though the tenant may not have made any representation or made it beyond time, the Court had a discretion and could, in a suitable case, condone the default. We are unable to agree. Sub-rule (1) says that "the Court may subject to the provisions of sub-rule (2) strike off the defense". The discretion emphasized by the use of the word 'may' is with reference to sub-rule (2) under which the Court can condone. The Court is not bound to condone. It exercises a judicial discretion. The discretion is "subject to" sub-rule (2 ). "subject to" means "conditional upon" K. R. C. S. Bala Kishan Chetty and Sons v. The State of Madras (A. I. R. 1961 S. C. 1152. ). If the condition mentioned in sub-rule (2) was satisfied, the Court may not strike off. The Court was given the discretion to consider the representation and if it thought it to condone the default to refrain from striking off the defense. If the Court was not in a position to condone the default, it had no discretion left to or not to strike off the defense it had to strike it off. Sub-rule (2) says "before making an order for striking off the defense, the Court may consider any representation. . . . . . . . . " This shows that the striking off is post poned till consideration of the representation. If there is a default, the Court is under a duty to strike off, unless it condones under sub- rule (2 ). The use of word "may" is not decisive, It can mean "shall" (Sri Rangaswmai, the Textile Commissioner end others v. The Sagar Textile Mills (Pvt.) Ltd. and another (A. I. R. 1977 S. C. 1516 ). It depends on the object and context. Sub-rule (2) uses the word 'may' in the phrase "the Court may consider any representation. " It will be preposterous to suggest that the Court can in its discretion refuse to consider a representation made within time. The Court is bound to consider it. It has no discretion there. Order XV, Rule 5 C. P. C. was intended to persuade the tenant to caught up the admitted rent, in time on pain of penalty if his defense being struck off. This object will fail of the Court is permitted, because of 'may' to nullify it. Learned counsel for the defendant applicant invited our attention to Shyam Charan v. Dharam Das (A. I. R. 1980 S. C. 587) there the Scheme of Section 13 of the Madhya Pradesh Accommodation Control Act came up for consideration before the Supreme Court. That provision was at par with order XV, Rule 5 C. P. C. prior to its amendment in 1976. Considering such a provision the Supreme Court held that the discretion was given to the Court to condone the delay and extend the time. The power to extend time was expressed to be exercisable for depositing the arrears of rent and not for depositing the rent from month to month. The Supreme Court extended the appli cability of the discretionary power to latter class of cases as well. This case may be relevant if we were to consider Rule 5 as it was originally enacted. But in 1976 the Scheme of Rule 5 was drastically changed. This authority is hence, distinguishable. The view that has appealed to us, has been accepted in several decisions. Abhai Nandan Kumar Jain v. IV Additional District Judge and others (. 1980u. P. R. C. C, 399) Ajit Singh v. District Judge and others (1980 U. P. R. C. C. 432) Rahat Ali v. Day a Shanker (A. I. R. 1980 Alld. 300 ). In view of the admitted position that default at least in depositing the rent due for the month of September, 1977 was committed and in view of further admitted position that no representation was filed by the applicant within the prescribed period of time, the Court was justified in striking off the defence. The revision has no substance. It is accordingly dismissed with costs. .