NANHEY Vs. VITH ADDITIONAL DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) SMT . Hub Raji, Respondent No. 3, filed a against the present Petitioner Nanhey for his eviction from the premises in question and for recovery of arrears of rent and damages. She claimed to have purchased the house in question by a registered sale deed dated 5 -4 -1974. The Defendant had not paid rent even to the previous owner ; hence the right to realise the arrears of rent was also purchased by her. The suit was contested by the Defendant and a written statement was filed, a copy of which is Annexure No. 2 to the writ petition. A copy of the plaint is Annexure No. 1. The Defendant pleaded in the written statement that extensive repairs were carried on by him in pursuance of an agreement made between him and the previous owner. The Defendant said he had incurred an expenditure of about Ks. 2000.00 in carrying on those repairs and claimed payment of the same from Vishwa Nath the previous owner. Vishwa Nath, however, disputed the amount spent and eventually it was agreed that he would give credit to the extent of Rs. 1,025.00 to the Defendant and that it would be paid by the adjustment of the future rent, vide para 23 of the written statement. The Defendant contended in para 24 of the written statement that in this way Vishwa Nath legally received Rs. 1,025.00 in advance and no rent was in arrears. There was rather an excess payment which was to be paid by adjustment of future rent up to November, 1979. The present Respondent No. 3 Plaintiff, filed an application under Order 15 Rule 5 Code of Civil Procedure, for striking out the defence. A copy of that application is Annexure No. 4. The Petitioner filed an objection to that application contending that the suit was not maintainable in law by virtue of Section 20 of the U.P. Act No. 13 of 1972 as there were no arrears of rent as per the plea in para 26 of his written statement hence the Plaintiff could not ask for striking out his defence under Order 15 Rule 5 Code of Civil Procedure. He also placed reliance on the said agreement for adjustment of the amount spent in repairs towards the payment of rent. A copy of that objection is Annexure No. 5 to the petition. The trial court ordered that the application would be disposed of along with the suit. The Plaintiff however filed another application No. 68 -C praying that the defence he struck out. That application was also moved under Rule 5 of Order 15 Code of Civil Procedure. An objection to that application was filed. The trial court allowed that application and struck out the defence, vide order dated 11 -9 -1980, a copy of which is Annexure No. 8 to the writ petition. The Petitioner then filed a revision in the Court of the District Judge, Lucknow. That revision was, however, rejected vide order dated 7 -1 -1981 (Annexure No. 10 to the writ petition). The Petitioner has impugned both the aforesaid orders and has prayed for the quashing of the same.

(2.) I have heard the learned Counsel for the parties and have carefully gone through the record. The Supreme Court has held in Miss Santosh Mehta v. Om Prakash : AIR 1980 SC 1664 that striking out defence of a tenant is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. Two conditions must be satisfied before any action under Order 15 Rule 5 may be taken, namely, (1) there must be failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non -performance and (2) discretion is to be exercised keeping in view all the facts and circumstances of the case. The same view was expressed by the Supreme Court in Bimal Chand Jain v. Gopal Agarwal, 1981 AWC 529 . In Bimal Chand Jain's case the Supreme Court examining the provisions of Order 15 Rule 5 Code of Civil Procedure, as applicable to Uttar Pradesh laid down:

(3.) WE have, therefore, to see whether the court below has exercised the power in a mechanical manner or has exercised its discretion keeping in view the facts and circumstances of the case. Rule 5 of Order 15 Code of Civil Procedure, is as follows: