MOHD ISHAQ Vs. VIJAYA KUMAR BANSAL

JUDGEMENT

(1.) THIS is defendant's revision under section 25 of the Provincial Small Cause Courts Act which is directed against the order passed by the IIIrd Additional District Judge, Meerut, under Order 15 Rule 5 of the Code of Civil Procedure striking off the defence of the defendant-applicant. The brief facts are these. The plaintiff-opposite-party filed a suit for ejectment and recovery of arrears of rent and mesne profits against the defendant-applicant. The defendant resisted the suit and filed a written statement. The first date of hearing fixed in the case was 28-2-1980 and the defendant deposited rent up to March, 1980 on 27-2-1980. However, he did not deposit interest on the amount of rent due for the month of January, 1980. Apart from this, the rent for the period April, 1980 to June, 1980 was deposited on 20-6-1980, for the months of July, August and September, 1980, on 9-9-1980 and for the months of October, November and December, 1980, on 17-12-1980. In other words, in respect of the rent for April, May, July, August, October and November, 1980 rent had not been deposited on the due date, that is, within one week of the rent having become due.

(2.) AN application was given on behalf of the plaintiff-opposite-party under Order 15 Rule 5 of the Code of Civil Procedure for striking off the defence. Pending disposal of that application the defendant-applicant filed a representation on 9-2-1981 praying for condonation of delay which had been caused in deposit of the rent in the manner aforesaid. Relying on a decision of this Court in Pooran Chand v. Pravin Gupta, 1980 AWC 712,,the court below has taken the view that since the representation under sub-rule (2) of Rule 5 of Order 15 was not made within the period provided therefor, the court had no jurisdiction to consider the representation and condone the delay or extend the time. On this view it has been held that there was non-compliance of the provisions of Order 15 Rule 5 of the Code of Civil Procedure and as such the defence was liable to be struck off and has been so struck off.

(3.) THIS decision has been followed by a learned Single Judge of this Court in Jawahar Lal v. Ram Chandra, 1981 UPRCC 609. In Smt. Saraswati Devi v. B. C. Kupdu, AIR 1981 Alld. 259 I also took the view that Order 15 Rule 5 only vests a discretion in the court to strike off the defence and does not compel it to do so. My attention has also been invited to an unreported decision of Hon'ble the Chief Justice in Civil Revision No. 177 of 1980 Jugmander Dass v. Sri Ram Phal, decided on 28-9-1981 in which it has been observed :- "So long as the object of the statutory provision is achieved, undue technicality should not be allowed to prevail to shut out the defence of the tenants from being considered by the Court."