JUDGMENT R.M. Sahai, J. - Aggrieved by striking off defence under order 15 rule 5 Civil Procedure Code and exparte decree, the tenant has come to this court. Suit filed for arrears of rent and eviction in January, 1970 in Munsif's court was transferred in January 1973 to judge Small Causes Court, after enforcement of U.P. Civil Laws (Amendment) Act, XXXVII of 1972. It was fixed for 17th April, 1973 but has adjourned to 19th July, 1973 when the defence was struck off by judge Small Causes Court because, "the defendant had admitted that the rent was not paid. They have disputed only the rate of rent and also challenged the plaintiff's contents about default." The defendants had deposited Rs. 972/- towards the arrears of rent and damages for used and occupation but this amount did not cover the entire period upto the month of June, 1973 rent at the admitted rate. He then proceeded to dispose of the suit on the evidence of the plaintiff only. Representation filed on same day expressing willingness to deposit current rent from April, 1973 to June, 1973 as rent prior to April, 1973 had already been deposited was not accepted as the case had already been disposed of. 2. From the order of judge Small Causes Court it is apparent that defence was struck off for not depositing current rent. Revising authority, however, maintained the order as despite order of Court to deposit entire arrears by 17th April, petitioner deposited only Rs. 972/on 13th April which was not entire rents deposited and it could not be tagged. It was also held that even accepting Rs. 17-53 P. to be admitted rent for purposes of order 15 the amount was insufficient. 3. Although feeble attempt was made by learned counsel for petitioner to argue that as issues had been framed in the case prior to enforcement of Act 37 of 1972 either there could be no date first hearing or it could be any date and not necessarily the first date when the case was taken up by judge Small Cause court. Although feeble attempt was made by learned counsel for petitioner to argue that as issues had been framed in the case prior to enforcement of Act 37 of 1972 either there could be no date first hearing or it could be any date and not necessarily the first date when the case was taken up by judge Small Cause court. It does not appear to have any merit obviously because first hearing in relation to suits instituted prior to enforcement of Act 37 of 1972 has been provided in the order itself, (or in the case of a suit instituted before the commencement) of the said Act, the first hearing after such commencement). As 17th April, was fixed after transfer of case from Munsif to judge Small Causes Court it was first date of hearing within meaning of Order 15 rule 5 Civil Procedure Code of course the finding of revising authority that as the case was pending in the court of Munsif when Act 37 of 1972 was enforced it was the duty of petitioner to deposit the entire arrears etc. without waiting for transfer of case is manifestly erroneous. Deposit had to be made on first date of hearing. It has not been held by him that after framing of issues on 3rd November, 1971 and prior to transfer of the case on 3rd June, 1973 any date was fixed for hearing before the Munsif. In absence of any finding or any material that case was fixed for hearing the finding cannot be maintained. 4. Equally erroneous is the view that deposit of rent under Section 7C of Act 3 of 1947 could not be taken into account for determining deposit under order 15 rule 5 Civil Procedure Code what is required to be deposited is, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent interest per annum and continue depositing current rent regularly within a week from its accrual'. Expression" admitted by him to be due has been construed to mean the amount which defendant admits and not the amount which plaintiff claims (Ladli Prasad v. Ramshah Billa, 1976 All L.J. 494). At the stage of striking off defence it is not the legality or validity of amount but the admission by defendant alone which had to be considered for applicability of order 15. At the stage of striking off defence it is not the legality or validity of amount but the admission by defendant alone which had to be considered for applicability of order 15. In this case petitioner admitted rent at Rs. 17.50 only. Further deposit under section 7C was not admitted to be due. It could not, therefore, be treated as arrears. Even legally deposit under section 7C which is in pari materia with section 30 of U.P. Act 13 of 1972 is treated as payment to landlord. Sub sections of both the sections provide. In any case where a deposit has been made, as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord'. Whatever ambiguity remained was clarified by Explanation 2 added to this order by U.P. Civil Laws (reform and Amended Act No. 57 of 1976. Rigour was further lessened by explaining that entire amount admitted by him to be due 'means the entire gross amount whether as rent or compensation for use and occupation calculated at the admitted rate of rent for the admitted period of arrears. Therefore, not only rate of rent but even period for which arrears are to be deposited is the period admitted by defendant. The Explanation further entitles the defendant to deduct deposit made under section 30. This settles the controversy. True this amendment is not retrospective but it throws light on Legislature's intention and furnishes guide line for construing the otherwise penal provision liberally. In either view of the matter petitioner could not be treated in arrears for the period the amount was deposited under section 7C and if he could be then it was liable to exclusion as it amounted to payment to landlord. 5. Admittedly Rs. 972/- were deposited on 13th April that is prior to the first date of hearing namely, 17th April for disposal of the case. If allowance is made for deposit under section 7C then it covered the entire arrears. The revising authority did not find it sufficient even at admitted rate of Rs. 17.50 p. against Rs. 50/- claimed presumably because he included the period which was covered under section 7C. 6. Trial Court itself had not struck off the defence for any arrears of rent but because it did not cover the arrears of May and June, 1973. The revising authority did not find it sufficient even at admitted rate of Rs. 17.50 p. against Rs. 50/- claimed presumably because he included the period which was covered under section 7C. 6. Trial Court itself had not struck off the defence for any arrears of rent but because it did not cover the arrears of May and June, 1973. As arrears had been deposited in April it obviously could not include May and June. The default of May and June could be said to failure of petitioner to deposit current arrears. But for this he made an application in July, the next day on which the case was fixed. It was, not accepted as the case had been disposed of. In not making the deposit within one week of the accrual of rent that is for May and June the petitioner did incur default as contemplated in order 15. But as held by Supreme Court in Bimal Chand Jain v. Gopal Agarwal, 1981 ARC 462 that sub rule (1) of order 15 only vests the discretion in court to strike off defence. 'It does not oblige it to do so in every case of default'. That is the Court has to exercise its discretion and should not strike off defence mechanically. And this discretion could be exercised only on tests of bonafide. If the courts finds that default or failure to deposit was bona fide then it shall not exercise its discretion against defendant. It has been seen above that petitioner had deposited under section 7C then he deposited a sum of Rs. 972/- on 13th April, even prior to the first date of hearing before judge Small Causes Court and as willing to deposit current rent of May and June on the next date that is July 1973. In these circumstance it cannot be said that petitioner was not acting bona fide. At least it was not a case in which the exercise of discretion should have been against petitioner. 7. For the reasons stated above orders passed by the courts below are quashed. The petitioner shall deposit rent from May 1973 till September, 1983 within a period of two months from today in case it has not been deposited already. Further petitioner shall continue depositing current rent regularly as provided in law. In case petitioner desires to deposit lump sum he may do so in advance. The petitioner shall deposit rent from May 1973 till September, 1983 within a period of two months from today in case it has not been deposited already. Further petitioner shall continue depositing current rent regularly as provided in law. In case petitioner desires to deposit lump sum he may do so in advance. If the arrears are deposited within two months or they have already been deposited then the Court shall proceed to decide the case in accordance with law Parties shall bear their own costs.