BHARAT BHUSHAN MISRA Vs. DISTRICT JUDGE GONDA

JUDGEMENT

(1.) RESPONDENT no. 3 Harendra Dutt Tripathi who is the landlord of the house in question filed suit no. 28 of 1977, under section 20 of U. P. Act No. XIII of 1972 seeking eviction of the tenent present petitioner Bharat Bhushan Misra on the ground that he was in arrears of rent from August, 19/6. The rate of rent was claimed to be Rs. 70/.- per month. The suit was contested, interalia on the ground that the rate of rent was Rs. 30/- and not Rs. 70/- per month. The evidence in the suit concluded on 18-1-1980 and the suit was fixed for arguments for 7-2-1980 from which date it was adjourned to 21-2-1980. The plaintiff-landlord moved application under Order 15 Rule 5 CPC seeking striking off the defence of the tenent on the ground that he failed to take the deposits as required under the said provisions. The defendent tenent filed objections raising the plea that the entire rent up to Feb. 1980 had been deposited though rent for certain intermediary months was not deposited strictly within the requisite time of one week from the date of accrual of the rent.

(2.) LEARNED Munsif exercising Small Gauses powers recorded findings of fact that the defendant tenent deposited rent for certain months beyond the permitted time. The details of the default in the form of delayed deposits were given as follows ; Period for which rent was due deposited on May, 1977 5-7-1977 June, 1977 8-8-1977 August, September and October, 1977 1-12-1977 November, December, 1977 and January, 1978 22-2-1978 February and March, 1978 4-5-1978 May, June and July, 1978 7-9-1978 August, September and October, 1978 16-12-1978 November and December, 1978 8-2-1979 February, March and April, 1979 7-7-1979 May and June, 1979 August, 1979 September and October, 1979 December, 1979 December, 1979 22-1-1980

(3.) THIS is the uncontroverted position that the prayer for striking off the defence under Order 15 Rule 5 CPC was made when the suit had reached the stage of arguments. Learned counsel for the respondent had relied on a decision of this court in Sohan Lai v. Hodal Singh, in Civil Misc. Writ Petition No. 1947 of 1977, decided on 31-1-1979 as reported in Summary of Cases 1979 (5) ALR 78. The defence in that case was struck off by the revisional authority. THIS order was upheld by this court with the observation that the word 'may' even if was prime facie enabling, tbe legislature used it in the sense of must or shall hand a court is obliged to pass an order striking out the defence if the conditions of Order 15 Rule 5 CPC have not been complied with. It was, however, further observed that under Rule 5 a court can after considering any representation made by a tenent allow him further time for depositing the rent but this cannot be interpreted as meaning that the striking off the defence is discretionary. The fact that the Legislature has conferred power on a court to extent time that cannot be interpreted to mease that the court leed it optional to obey or not.