RAKESH GOEL Vs. VITH ADDITIONAL DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) THE petitioner has sought for a writ of certiorari to quash the order dated 12-11-1986 (Annexure 2) passed by the respondent no. 1.

(2.) I have heard the learned counsel for the parties..

(3.) THE question regarding striking off the defence has been under consideration by this court as also by Supreme Court in various decisions. In Bimal Chand Jain v. Sri Gopal Agarwal (1981 ARC p. 463) it was held that courts have discretionary powers in respect of allowing striking off the defence under the provisions of Order XV, rule 5, CPC whether a representation has been made or not. This decision was relied on by this Court in the case Sultan Ahmad v. Goverdhan Das (1983 (1) ARC P 161). This court in a subsequent decision in Bimal Chand Jain v. Sri Gopal Agarwal (1982 ARC 638) held that in order to allow the deposit on the first date of hearing of the suit if he has not done so it could only be accepted if there will be a representation made. This decision was the foundation and was relied on by the revisional court and it is on the basis of this decision the revisional court allowed the revision of the respondent. It is not disputed that the aforesaid decision of this court has been set a side by the Supreme Court in Bimal Chand Jain v. Sri Gopal Agarwal (1983 (1) ARC p. 203). This and other catena decision in this regard make the law very clear. It has been left on the discretion of the Court to allow or to disallow the amount deposited on the first date of hearing on the facts and circumstances of the case whether a representation has been filed or whether any such application withdrawing the representation, if existed on the record. In view of this position it is not in dispute in the present case, that in strict sense, there was no representation but there was an application on the record, which has been refered to in the revisional judgment. It cannot be said that the revisional court could have rejected the claim of the petitioner in view of the legal principle laid down in Pooran Chand's case (supra).