VISHWANATH Vs. FIRST ADDL DISTRICT JUDGE BIJNOR

JUDGEMENT

(1.) This writ petition has been filed against an order dated 15. 3. 1980 striking off the defence of the defendant under Order 15 Rule 5 C. P. C. The correct rent as required by Order 15 Rule 5 had been deposited but it was not deposited within the period specified under sub-rule 1 nor the representation contemplated by sub-rule 2 appears to have been filed within time. It is, however, clear that there has been substantial compliance with the provisions of the rule and the entire rent had been deposited. The Court below appears to have passed the order ignoring the same. It has relied upon the case of Sohan Lal v. Hodel Singh, ( A. I. R. 1979 All. 230 ). The ambit of the order 15 Rule 5 was considered by the Supreme Court in a later case Bimal Chand Jain v. Gopal Agarwal (1980 A. L. J. 908. ). The view taken by some Benches of this Court was disapproved and the Supreme Court held that the Court should not strike out the defence in a mechanical manner even in absence of a representa tion. It was held: "a serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is a reserve of discre tion, vested in the Court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for doing so. It will always be the matter for the judgment of the Court to decide whether on the material before, it notwithstanding the absence of a representation under sub-rule (2) the defence should or should not be struck off. The word 'may in sub-rule (1) merely vests power in the Court to strike off the defence. It does not oblige it to do so in every case of default. To that extent we are unable to agree with the view taken by the High Court in Puran Chand 1981 A. L. J. p. 82 (supra ). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV. " The objection of the respondent that the representation not made within time appears to be correct. But in view of the Supreme Court decision cited above the mere absence of representation or delay in depositing the rent or dues could not entitle the trial Court to strike off the defence of the petitioner. Another objection has been raised that a revision under Section 115 C. P. C. could have been filed instead of writ petition. In the instant case a revision under Section 25 of the Provincial Small Causes Courts Act was filed but the same has been rejected by the 1st Addl. District Judge, Bijnor. No revision against the revision order lies under Section 115 of the Civil Procedure Code as applicable to Uttar Pradesh. The striking out of the defence of a defendant is a very serious matter. Where there is no prejudice caused to the plaintiff and the rent has been deposited, the delay in deposits due to any reason should ordinarily be condoned. Order XV Rule 5 is not intended to be a trap for the defendants. The plaintiff himself must not feel shy in contesting the case on merits. The purpose of Order XV Rule 5 is to prevent the unscrupulous defendants from contesting the suit for long time without payment of any rent or damages. After a lapse of years when the plaintiff's suit is ultimately decreed the defendant may walk away and the plaintiff is unable to realise the rent and mesne profits from the defendants. The object of the provision of law must be kept into mind while applying the same. Where the defendant has proved as bonafide by depositing the entire amount, under ordinary circumstances the trial Court should not proceed to strike off the defence. In the result, the writ petition is allowed. The order dated 15. 3. 1980 and the revisional order dated 9. 7. 1980 are both quashed: The trial Court is directed to proceed with the case on merits. The parties are directed to bear their own costs. .