BHUPENDRA VIKRAM SINGH Vs. SURENDRA KUMAR SEHGAL

JUDGEMENT

(1.) THIS revision is directed against the order passed by the III Additional District Judge, Lucknow dated 29th July, 1985 in S.C.C. suit No. 6 of 1985 whereby he struck off the defence of the revisionist under Order XV Rule 5 C.P.C. The facts briefly are that the revisionist is a tenant of disputed premises of which opposite party Sri Surendra Kumar Sehgal is the land -lord. The land lord filed a suit for ejectment and arrears of rent. The rent was not paid for the period 1.9.83 to 14.10.84. The rent admittedly was Rs. 368/ - per month. On account of the vaulation the suit was instituted in the Court of District Judge and the first date fixed was 14th March, 1985. This was a holiday and the case could not be taken up as the courts were closed on that day. On 15.3.85 the revisionist submitted his written statement along with a tender for the entire amount claimed in the suit. This written statement and tender unfortunately were filed in the court of the Judge Small Causes under a mistaken belief. The case was fixed for 19th March, 1985 and on this date the revisionist moved an application seeking permission for rectification of the error. This application remained pending as no orders were passed. The case was then listed for 11.4.85 but the Presiding Officer was busy and hence the case was fixed for 16.5.85. On this date the case was transferred to the Court of III Additional District Judge and same was listed before the III Additional District Judge on 8.7.85. On that date the revisionist was absent and the case was adjourned to 25.7.85. On 25.7.85 the land -lord moved an application under Order XV Rule 5 to struck off the defence of the revisionist as the revisionist had failed to deposit the amount on the first date of hearing. The case, was, however, fixed for 29th July, 1985. The revisionist on 27.7.85 moved an application for depositing the entire amount and on 29.7.85 the entire amount was deposited by the revisionist. The III Additional District Judge on 29.7.85 after hearing the parties struck off the defence of the revisionist and this is how this revision is before this court.

(2.) I have heard learned counsel for the parties and gone through the impugned order passed by the learned III Additional District Judge. It cannot now be said that the law on the interpretation of Order XV Rule 5 is in a melting pot. In the instant case it transpires from the record that under section 30 of the Act XIII of 1972, hereinafter referred to as "the Act," prior to the receipt of the notice of the present suit by the revisionist, rent upon 31.1.85 had already been deposited in the court of Munsif South. The further rent only remained to be deposited in accordance with the explanation provided to Order XV Rule 5. It is not disputed before me that the rent of March, 1985 was deposited by the revisionist on 24.4.85 and the rent for April, 1985 was deposited on 9.5.1985. The rent for May and June was deposited on 29th July, 1985. It is no doubt true that this amount has not been deposited as stipulated within the four corner of the language of Order XV Rule 5. The court has laid stress mainly on two points, viz., that the future rent had not been deposited by the 7th of each successive month and no representation was made to the Court for extending the time of deposit. Therefore, the court reached the conclusion that the deposit cannot be treated within time. The Court, thereafter, proceeded to deprecate the conduct of the revisionist inasmuch as he was not present in person and ultimately struck off the defence of the revisionist. It is now well settled that an order under Sub -Rule 1 of Order XV Rule 5 striking off the defence is in the nature of penalty. Therefore, the courts are expected to act with greatest circumspection while exercising the description. The reading of the provision shows that a serious responsibility rests on the Court and the discretion is not to be exercised mechanically. It has been observed by the Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal : A.I.R. 1981 S.C. 1657 that there is a reserve of discretion vested in the court entitling it not to struck off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a 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.

(3.) IT is observed that the court should carefully go though the same valuable decisions pronounced on the subject involved in this revision. The observations made by the Supreme Court in, 1980 A.C.J. 559 Bimal Chand Jain v. Gopal Agarwal (Supra), Miss Santosh Mehta v. Om Parkash and others, 1980 A.C.J. 559 and Jagannath v. Ram Chandra Srivastava and others : 1982 A.L.J. 1324 need special reference. The sum and substance of these decisions would reveal that the courts are expected to adopt a socially uniform perspective while construing the provisions and not to act in a routine manner regarding the punitive texture provided in the four corners of Order XV -Rule 5. Even if the provisions are mandatory in nature even then the discretion has to be exercised by the court by visulising the entire facts and circumstances of the case. The Rent Control Laws basically are designed to protect tenants because of scarcitoy of accommodation which is no doubt a nightmare for those who do not own any accommodation. The decisions cited above would always amanate new noetic wave for enlightenment and the courts before exercising the discretion should carefully marshall out the fact before striking off defence on non -deposit. If the learned Judge had acted with circumspection the unnecessary delay in the disposal of the case would have been avoided I have no hesitation in observing that the learned trial Judge did not act with prudence while striking of defence of the revisionist. The order, therefore, cannot be sustained in the light of the circumstances that have been brought to the notice of the court.