SHRI CHAND Vs. DISTRICT JUDGE BARABANKI

JUDGEMENT

(1.) THE tenants who are defendants in the suit filed by opposite party no. 3, are aggrieved by the order passed by the Court of Judge Small Causes striking off their defence under Order 15 rule 5 of the Code of Civil Procedure as it is applicable in the State of Uttar Pradesh.

(2.) OPPOSITE party no. 3 filed suit against the petitioners for eviction and recovery of arrears of rent. According to the averments made in the writ petition, which have not been disputed, the petitioners deposited, on the first date of hearing, the entire amount contemplated under the first clause of sub-rule (1) of R. 5 of Order ] 5 but thereafter there was default in deposit of the amounts contemplated under the later cause, namely, rent for two months. The petitioners moved an application seeking permission to deposit this amount but the application was rejected by the impugned order and the defence was struck off. The petitioners have approached this court under Article 226 of the Constitution.

(3.) SRI Brijesh Kumar, learned counsel for the plaintiff opposite party, however, argued that the provision in Order XV rule 5 regarding deposit of the amounts mentioned therein within the specified time is mandatory and, therefore, once default is committed and no explanation is furnished therefor within the time specified in clause (2), the court has no option but to strike off the defence. I agree with the learned counsel that the provision regarding deposit is mandatory in the sense that a tenant cannot say that it is discretionary with him to deposit the amount or not to deposit the same. But on the language of the Rule itself it cannot be held that in all cases of default, irrespective of facts and circumstances, the court is bound to strike off the defence.