Research › Browse › Judgment

Allahabad High Court · body

1983 DIGILAW 10 (ALL)

Mahboob alias Chhalla v. Hussain

1983-01-04

T.S.MISRA

body1983
JUDGMENT T.S. Misra, J. - This petition arises in the following circumstances. Mohammad Hussain, the opposite party No. 1 filed a suit against Mahboob alias Chhalla, the Petitioner in the Court of Judge, Small Causes for a decree of ejectment of the Defendant and for recovery of arrears of rent and damages alleging that the Plaintiff had determined the tenancy of the Defendant by a notice of demand dated 21-9-1979 sent to the Defendant but he committed default in making payment of rent and in not vacating the premises in question. The suit was resisted and a written statement was filed. On the basis of the pleadings of the parties issues were framed. Issue No. 5 was as to whether the defence was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. Both, Plaintiff and the Defendant adduced oral and documentary evidence in support of their contentions. The trial Court decreed the suit. It recorded a finding on issue No. 5 that the defence was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. It also held that the Defendant was a tenant at the rate of Rs. 50/- per month and that he had committed default in making payment of arrears of rent after the service of the said notice. Aggrieved by that decision the Defendant filed a revision in the Court of the District Judge, Lucknow. It was heard by the learned II Additional District Judge, Lucknow, who dismissed the revision petition. The revisional Court below concurred with the trial Court that the written statement was liable to struck off under Order XV, Rule 5 of the Code of Civil Procedure. It also concurred with the trial Court that the Defendant had committed default in payment of rent within the meaning of Section 20(2)(a) of the U.P. Act XIII of 1972 and hence was liable to ejectment. 2. The Petitioner has filed the instant petition under Article 226 of the Constitution to quash the said two judgments. The petition has been opposed and counter-affidavit has been filed. 3. For the Petitioner it was submitted that the Courts below fell in error holding that the defence of the Petitioner was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. 4. The petition has been opposed and counter-affidavit has been filed. 3. For the Petitioner it was submitted that the Courts below fell in error holding that the defence of the Petitioner was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. 4. The learned II Additional District Judge while construing Sub-rule (2) of Order XV, Rule 5 of the Code has observed as under: Sub-rule (2) says before making an order for striking off the defence, the Court may consider any representation. This shows that the striking off is postponed till consideration of the representation. If there is a default, the Court is under duty to strike off, unless if condones under Rule (2). It is true that the adjudication of the application under Order XV, Rule 5 of the Code, should be decided as a preliminary issue but in this case no procedural irregularity could be said to have been made by the trial Judge as no representation was made by the tenant for condoning the delay in making deposit of 'monthly rent' after July, 1981 which ought to have been deposited in the trial Court as required by the said amended provision and it being not done no illegality was committed by the trial Court in exercising discretion to strike off the defence. 5. In my view the learned II Additional District Judge has not correctly interpreted the provisions of Sub-rule (2) of Order XV, Rule 5 of the Code. This provision of Order XV, Rule 5 of the Code came up for construction before the Supreme Court in Bimal Chand Jain v. Gopal Agarwal 1981 AWC S29. The Supreme Court has laid down: It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus.... 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. 6. It is now well settled that the Court is not obliged to strike off the defence in every case of default. The discretion has to be exercised keeping in view the facts and circumstances of the case. 6. It is now well settled that the Court is not obliged to strike off the defence in every case of default. The discretion has to be exercised keeping in view the facts and circumstances of the case. Even in the absence of a representation the Court may not strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. In the instant case, no doubt, it was urged on behalf of the Plaintiff before the trial Court that as the Defendant had failed to deposit regularly the monthly rent in the Court as required under Order XV, Rule 5 of the Code, his defence was liable to be struck off. The trial Court framed an issue on the point. The Court should have decided that issue as preliminary issue but it did not do so and permitted the parties to lead evidence. The defence was thus not struk off. The Plaintiff examined his son as a witness in the case in support of his contentions. The Defendant was permitted to cross-examine that witness then the Defendant was permitted by the trial Court to examine himself as a witness and the case was fixed for arguments. In these circumstances it has to be concluded by necessary implication that the trial Court declined to exercise its discretion to strike out the defence under Order XV, Rule 5 of the Code. Rather it allowed the Defendant to adduce oral evidence also. It may be noted here that the Defendant was allowed to adduce documentary evidence as well. If the defence had been struck out, the Defendant was even then entitled to cross-examine the witnesses of the Plaintiff but he would not have been entitled to examine his own witness. Any way, the defence was not struck out though there was a request of the Plaintiff in that behalf and an issue had also been framed on the point. The Defendant as pointed out earlier, was not only permitted to cross-examine the witnesses of the Plaintiff but was also allowed to examine himself as a witness and the Plaintiff cross-examined him. Impliedly therefore, the discretion was not exercised till then in striking out the defence under Order XV, Rule 5 of the Code. The trial Court decided that issue No. 5 in the judgment. It also decided other issues on merits. Impliedly therefore, the discretion was not exercised till then in striking out the defence under Order XV, Rule 5 of the Code. The trial Court decided that issue No. 5 in the judgment. It also decided other issues on merits. It held that the defence was liable to be struck out but while proceeding to decide the other issues on merits it ignored the evidence adduced by the Defendant. The revisional Court also ignored the ocumentary and oral evidence adduced by the Defendant while concurring with the findings reached by the trial Court on issues 1 to 4. Both the Courts thus committed manifest error of law in recording findings on issues No. 1 to 4 but not considering the evidence adduced by the Defendant. True, it is that the trial Court held that the defence was liable to be struck out but that finding was not reached before oral evidence was recorded and once the trial Court permitted the Defendant to lead oral evidence also on the point it was the duty of the trial Court to decide all the issues on merits by considering not only the evidence adduced by the Plaintiff but also documentary and oral evidence adduced by the Defendant in the case. The impugned judgments of the Courts below thus suffer from manifest error of law resulting in manifest injustice. They are, therefore, liable to be quashed. 7. In the result, the petition is allowed with costs. The judgment and decree passed by the trial Court dated 19-5-82, a copy of which is Annexure 3 and the judgment and decree passed by the Court of II Addl. District Judge, Lucknow, dated 31-8-82, a copy of which is Annexure 5 to the writ petition are quashed. The trial Court is directed to decide the suit on merits after considering the evidence both oral and documentary adduced by the Plaintiff and the Defendant and after hearing the learned Counsel for the Plaintiff and the Defendant. The parties are directed to file a certified copy of this judgment before the trial Court and appear before it on 4th February, 1983.