KISHORI LAL Vs. SPECIAL JUDGE, VARANASI AND OTHERS

JUDGEMENT

(1.) THIS is tenant's petition. The contesting respondents who are landlord of property in question instituted a suit No. 812 of 1997 in the Court of Judge, Small Causes Court against the petitioner for recovery of arrears of rent and damages and ejectment. A written statement has been filed by the petitioner. An application dated 23rd of March, 1983 was filed on the allegation that the tenant is not depositing the rent due and is also not depositing monthly rent in accordance with the provisions of Order XV, Rule 5, C.P.C. and as such he has committed breach of mandatory provision of Order XV, Rule 5, C.P.C. and his defence be struck off. Objection by way of reply to the said application was filed on the pleas inter alia that the defendant tenant is depositing rent in the Court in accordance with law and all the tenders are available on the file of Court. It was also stated that on 8th of March, 1978 a sum of Rs. 1,095.25 was deposited under section 20(4) of the Act and since then he is depositing the rent continuously and the last deposit was made on 2nd of April, 1983 for the period of 1st of April, 1983 to 31st of May, 1983. The Trial Court by its order dated 19th of April, 1983 found that there is no representation on the record from the side of defendant explaining the delay in making deposits. The Trial Court in its order has given particulars of all deposits made by the tenant commencing from the period March, 1979 to February, 1981 and noticed that the defendant tenant although has deposited the amount but with some delay. There being no representation explaining the delay in making deposits, Trial Court was of the view that merely because he has made some advance deposit is not enough to save the striking off the defence. The said order has been confirmed in civil revision No. 351 of 1983 by the Court below. Both the above Orders are under challenge in the present writ petition.

(2.) HEARD Shri Aditya Narain, learned Counsel for the petitioner and Shri Anoop Banerjee, learned Counsel for the contesting respondents. The facts of the case are not much in dispute. The only question that arises is whether on the facts of the present case the order striking off defence of the defendant, which is undoubtedly penal in nature, should be sustained or not.

(3.) IN this factual background, it is apt to examine the judgment of the Apex Court in Bimal Chand Jain v. Shri Gopal Agrawal : 1981 (7) ALR 556. Apex Court in this case has held that sub -rule (1) obliges the Court to strike off defence. But it must be remembered that an order under sub -rule striking of defence is in nature of penalty. The relevant portion of the report is reproduced below: