ISRAR AHMAD Vs. FIRST ADDITIONAL DISTRICT JUDGE NAINITAL

JUDGEMENT

(1.) COURTS should be extremely careful while exercising the powers under Order 15 rule 5 Civil Procedure Code. Mechanical exercise of this power without going into the real perspective of the case has always been discouraged by the apex court as well as this court in a number of cases, because it is penal in nature.

(2.) THE brief facts of the case are : THE petitioner is a tenant of one room accommodation no. 31/149, No. 7, Banbhoolpura, Haldwani, District Nainital. THE respondent no. 3 filed a suit for ejectment and arrears of rent against the petitioner in the court of Judge Small Causes. THE plaint case was that the rate of rent was Rs. 50/-per month. No rent has been paid from 1-5-1977 despite repeated requests. A notice under section 106 T. P. Act terminating the tenancy was served on the petitioner on 7-2-1980. He neither vacated the premises nor paid the arrears within the time mentioned in the notice. THE petitioner's main contest was on the rate of rent. According to him, it was Rs. 30/.- and not Rs. 50/- per month. He has paid the entire amount of rent due till 30-1-1980. THEre was no arrears. THE suit was not maintainable. During the pendency of the suit, the plaintiff filed an application under Order 15 Rule 5 CPC for striking off the defence. THE petitioner filed a representation (28-C). It was filed after the expiry of 10 days of the first date of hearing. THE main thrust of this case was that the defendant failed to deposit the monthly rent within a week from the date of its accrual. It has a special reference to the rent of July 1980. THE Judge Small Causes Court vide its order dated 11-9-1980 passed an order striking off the defence of the petitioner. Consequently, the suit for ejectment and arrears of rent has been decreed on the same day. Since no relief of arrears of rent and damages upto the date of institution of the suit was claimed by the plaintiff the suit was dismissed for this period.

(3.) THE main point to be decided in this case is whether the order striking off the petitioner's defence is sustainable or not.