JUDGMENT B. D. Agarwal, J. 1. The petitioner had been tenant of a portion in house No. 15/251-A Doodhwala Bungalow, Civil Lines, Kanpur. The rent admittedly is Rs. 12.50 per month. On August 10, 1976 the respondents 3 to 7 gave him a combined notice under section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (for short, the U. P. Act XIII of 1972) and section 106 Transfer of Property Act. The rent claimed was Rs. 50/- for the period of April 1, 1976 to July 31, 1976 besides drainage tax since April 1, 1975. The petitioner tendered a sum of Rs. 50/-by Money-Order addressed to the respondent no. 7 which the latter declined to accept. The petitioner thereupon applied under section 30 (1) of the U. P. Act XIII of 1972 in the court of Munsif City, Kanpur for leave to deposit the rent in favour of the respondent no. 7. The application was opposed by the respondent no. 7 who filed objection on July 8, 1977 but this was allowed by the order made on the same day. Original suit 1575 of 1976 was instituted thereafter by the respondents 3 to 7 on October 19, 1976 in the court of the Small Causes, Kanpur against the petitioner for eviction. Claim was also made for rent for the period of September 1, 1976 to September 15, 1976 in the amount of Rs. 6.25 only, besides, damages for use and occupation from September 16, 1976 and drainage tax amounting to Rs. 5.62 from April 1, 1975. Summons was issued to the petitioner-defendant in the suit for February 15, 1977 and he filed his written statement the same day. An Application was made by the respondents 3 to 7 in the trial court on July 23, 1979 contending that the petitioner-tenant had not complied to the requirement under Order XV Rule 5 CPC and hence the defence was liable to be struck off. The petitioner filed objection against this on August 7/9, 1979. The application was rejected by the trial court on September 3, 1979. Against this the respondent preferred revision which has been allowed by the 7th Additional District Judge, Kanpur on July 15, 1980. 2. The petitioner filed objection against this on August 7/9, 1979. The application was rejected by the trial court on September 3, 1979. Against this the respondent preferred revision which has been allowed by the 7th Additional District Judge, Kanpur on July 15, 1980. 2. Aggrieved the petitioner has filed this petition under Article 226 of the Constitution and has prayed for writ of certiorari to quash the order dated July 15, 1980 made by the respondent no. 1. Order XV Rule 5 CPC was enacted by the U. P. Act 37 of 1972 which commenced on September 20, 1972. This was repealed and re-enacted with effect from January 1, 1977 by the U. P. Act 57 of 1976. The provision reads as under "5. Striking off defence on failure to deposit admitted rent, etc.-(1). In any suit by lessor for the eviction of a lessee after the determination of bis lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first bearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2), strike off his defence. Explanation 1 ;-The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2. Explanation 1 ;-The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2. -The expression ' 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 after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3 ;-The expression monthly amount due means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deductions except the taxes, if any, paid to a local authority in respect of the building on lessor's account. (2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff. Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited;" 3. Dispute does not exist in the present with regard to the compliance to the first part of Order XVI rule 5 (1) above mentioned. The summons for filing written statement was issued for February 15, 1977. This was the date of first hearing within the meaning of Explanation 1. Written statement was filed by the petitioner the same day. His version in regard to the arrear claimed of rent by the plaintiffs was that after having tendered the sum of Rs. 50/- by Money Order to the respondent no. 7-landlord he bad made deposit under section 30 (1) of the U. P. Act XIII of 1972 in the court of the Munsif City, Kanpur and nothing remained due. His version in regard to the arrear claimed of rent by the plaintiffs was that after having tendered the sum of Rs. 50/- by Money Order to the respondent no. 7-landlord he bad made deposit under section 30 (1) of the U. P. Act XIII of 1972 in the court of the Munsif City, Kanpur and nothing remained due. The controversy exists with regard to the alleged non-compliance to the second part of Order XV rule 5 (1) and the consequence thereof. 4. Three points were raised in support of Sri S. O. P. Agarwal, the learned counsel for the petitioner t (i) the deposit made under section 30 (1) of the U. P. Act XIII of 1972 may be taken into account to determine whether monthly amount due has been deposited as required under Order XV rule 5 (1) read with Explanation 3 ; (ii) the order to strike off defence is discretionary and in the exercise of this power the court has to consider the bona fides of the tenant in making deposit under section 30 (1) aforesaid ; (ill) the provision contained in Order XV rule 5 CPC is ultravires Article 14 of the Constitution. Sri S. P. Mehrotra learned counsel for the respondents 3 to 7 countered these contentions submitting that the monthly amount due has to be deposited in the court where the suit for eviction and arrears is filed and the deposit made under section 30 (1) cannot avail for this purpose. It is also urged that the deposits claimed under section 30 (1) were not regular and that there was no representation made by the petitioner explaining the delay. The provision is hedged in with various limitations and it cannot be classed as arbitrary. 5. The contention no. 1 for the petitioner above mentioned concerns the interpretation of Order XV rule 5 (1) read with Explanation 3. Sri Agarwal argued that the Explanation 2 provides for exclusion of deposit made under section 30 of the U. P. Act XIII of 1972 and there is no reason why the Explanation 3 should not be read in the same manner. I am unable to agree. In the scheme of Order XV rule 5 (1) the deposit on or before the date of first hearing might be made under section 30 of the U. P. Act XIII of 1972. I am unable to agree. In the scheme of Order XV rule 5 (1) the deposit on or before the date of first hearing might be made under section 30 of the U. P. Act XIII of 1972. The intention behind this part of rule 5 (1) is to require the deposit of amount admitted to be due and hence it would have been incongruous not to take into account deposit towards rent though made under a different provision. In relation, however, to the deposit of monthly amount due the position is not the same. Unlike Explanation 2 there is express provision in Explanation 3 to take into account the deposit made under section 30 of the U. P. Act XIII of 1972. Intrinsic evidence is, moreover, a pointer in the reverse direction. For purposes of Order XV rule 5 the suit for eviction may be even for a piece of land without there being a building standing upon the same. Section 30 is confined to deposit of rent concerning a building as defined in that Act. Under rule 5 (1) the deposit is required to be made regularly within a week from the date when the monthly amount falls due. No such rider can obviously be read into a deposit under section 30. Rule 5 (1) insists then that the deposit of monthly amount due shall continue to be made throughout the continuation of the suit. This also suggests that the deposit contemplated is deposit in the court where the suit is pending. I am for these reasons in respectful agreement with the view taken by the learned single Judge on this point in Mrs. S. Abel v. The District Judge, Allahabad, 1980 ARC 261 at 267. 6. The contention No. 2 raised for the petitioner is by far the most important. Assuming as discussed above that the petitioner made default in not making regular deposit in the court where the suit has been instituted as required in the second part of Order XV rule 5 (1), the question arises whether this should necessarily result into defence being struck off. Order XV rule 5 aims at preventing abuse by a tenant of the process of the court. Order XV rule 5 aims at preventing abuse by a tenant of the process of the court. The litigation might be unduly prolonged ; the arrears of rent might continue to accumulate in the meanwhile and ultimately even if the landlord succeeds it may be rendered difficult for him to recover the huge amount. The risk that upon default in payment of rent the defence may be struck off is intended to serve as a safeguard in the interest of the landlord. See Smt. Chandra Rani v. Vikram Singh, 1979 AWC 47 FB. The object behind sub-section (2) of section 20 of the U. P. Act XIII of 1972 is different. That provides further opportunity to the defaulting tenant to retrieve his position. The distinction between these provisions was thus taken note of by the Full Bench in Sia Ram v. District Judge Kheri, 1984 AWC 169 – "It may also be mentioned in this connection that the general principal underlying Order XV rule 5 CPC and to section 20 (4) of Act 13 of 1972 arc different. The former provision is of a penal nature and the power of the court to strike off the defence is merely discretionary and the court is no bound to do so. On the other hand, the provisions of section 20 (4) are be way of providing locus paenitentiae for a tenant who has been a defaulter and has thus forfeited the protection of the rent control law. It gives him a further opportunity to redeem bis position, which has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. The Legislature cannot, therefore, be said to have acted unreasonably in requiring the tenant to comply with the provisions of section 20 (4) more strictly than with the provisions of Order XV rule 5 CPC. This distinction has been noted in various decisions such as Rafiq Ahmad v. Ill Addl. District Judge (supra); Bharagu Dutta Singh v. Shyamkishore, 1980 LLJ 62 and several other decisions." The defence, it would appear, cannot be struck off as a matter of course. There is element of discretion left to the court. This distinction has been noted in various decisions such as Rafiq Ahmad v. Ill Addl. District Judge (supra); Bharagu Dutta Singh v. Shyamkishore, 1980 LLJ 62 and several other decisions." The defence, it would appear, cannot be struck off as a matter of course. There is element of discretion left to the court. It has to be borne in mind in the exercise of this judicial discretion that the provision is penal in character and the consequence may be harsh against a party to the suit. Section 15 (7) of the Delhi Rent Control Act, 1958 provided that if a tenant failed to make payment or deposit as required by that section the Controller might order the defence against the eviction to be struck out and proceed with the hearing of the application. In Mrs. Santosh Mehta v. Om Prakash, AIR 1980 SC 1664 the Supreme Court laid the following guide-lines for the interpretation of such a provision - ".........it will be plain that the controller is armed with a facilitative power. He may or may not strike out the tenant's defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a Court striking out a party's defence is in exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all. there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitational non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but Invests a power to overcome intransigence. Thus if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of definance or gross neglect, the tenant may forfeit his right to be hearing defence. The last resort cannot be converted into the first resort; a punitive discretion of court cannot be used as boody trap to get the tenant out." 7. Order XV rule 5 came up for interpretation before this Court in Pooran Chand v. Pravin Chand, 1980 AWC 712 . The last resort cannot be converted into the first resort; a punitive discretion of court cannot be used as boody trap to get the tenant out." 7. Order XV rule 5 came up for interpretation before this Court in Pooran Chand v. Pravin Chand, 1980 AWC 712 . The Division Bench was of the view that since there had been default in deposit of rent due for one month in any case and no representation was filed by the tenant within the prescribed period of time, the court was justified in striking out the defence. The Supreme Court did not approve this approach to the issue. In Bimal Chand Jain v. Sri Gopal Agarwal, 1981 AWC 529 = (1981) 3 SCC 486 the tenant had failed to make regular deposits of monthly amount due during the continuation of the suit and a respresentation was not filed either. It was held :- " (i) an order under sub-rule (1) of rule 5 striking of the defence is in the nature of a penalty. Even though there be no representation by the tenant formally made, the record may contain such material already and in that event the court is not obliged to strike off the defence ; (ii) the court has a reserve of discretion vested in it entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so; (iii) in each case it will be a matter for the judgment of the court to decide whether on the material before it, notwithstanding, the absence of a representation under sub-rule (2) the defence should or should not be struck off (iv) the word 'may- in sub-rule (1) merely vest power in the court to strike off the defence and is enabling in nature. 8. The case of Bimal Chand came up again before this Court and the learned Single Judge was of the view that the fact that for certain months the tenant had deposited the rent in advance, did not constitute sufficient cause for purposes of rule 5. It was also immaterial that certain belated deposit bad been accepted by the court below. There was, as mentioned above, no representation filed as such in that case. The order striking off the defence was in consequences upheld. It was also immaterial that certain belated deposit bad been accepted by the court below. There was, as mentioned above, no representation filed as such in that case. The order striking off the defence was in consequences upheld. This decision of the learned Single Judge is reported In Bimal Chand Jain v. Sri Gopal Agarwal, 1982 ACJ 367. The Supreme Court, however, disagreed. On August 17, 1982, it was held that this was not a kind of case in which the defence of the appellant-tenant could be struck off. The order to strike out the defence of the appellant was accordingly set aside and the Rent Controller was directed to take the written statement of the appellant on file. The appellant-tenant was also put to certain terms in the order vide Bimal Chand Jain v. Sri Gopal Agarwal, 1983 ACJ 58 SC. Following the decision of the Supreme Court in Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486 = 1981 AWC 529 (suprsi) there is a catena of decisions of this Court wherein it was held that the order to strike out defence is discretionary ; the provision is penal in nature and has to be exercised with great caution and that the bona fides of the tenant constitute a material factor. In Mohammad Ishaq v. Vijai Kumar Bansal, 1982 AWC 157 the court below had taken the view that there was no representation filed within the period specified and therefore, the court had no jurisdiction to consider any cause for default. A learned single Judge (Rastogi, J.) held that the court below erred in not considering the representation of the defaulting tenant on its merit and in not taking into account if there was ether material also in support of his contention. In Jawahar Lal Verma v. Ram Chandra, 1982 ARC 31 the application by way of representation was delayed and it was stated that as a result of mistaken legal advice given to the applicant by his counsel the deposits of monthly amount due, could not de regularly made. The lower court was of opinion that it bad no option except to strike off the defence since there had been no representation filed within the prescribed period. The lower court was of opinion that it bad no option except to strike off the defence since there had been no representation filed within the prescribed period. The learned Single Judge (A. N. Varma, J.) was of the view that the court is not bound to strike off the defence of a lessee under rule 5 and that even if the representation contemplated thereunder is not filed within the period prescribed, the court still has discretion and for good and proper reasons it may refuse to grant the application of the landlord in this behalf. In Jugmander Das v. Ram Penal, 1982 ARC 2 the deposits had not been made by tenant but instead they were by sub-tenant. Learned Chief Justice was of the view that the object behind the provision is to enable the plaintiff to have the rent paid to him or deposit to his credit as and when it falls due. So long as the object of the statutory provisions is achieved, undue technicalities should not be allowed to prevail to shut out the defence of the tenant from being considered by the court. This was cited with approval by M. P. Mehrotra, J. (as he then was) in Rafiq Ahmad v. Ill Addl. District Judge, Saharanpur, 1982 ARC 371 observing that the provision should be construed strictly. It should be seen that while the legislative aim is that the tenant should not allow the rent to fall in arrears by prolonging the litigation, the landlord should also not be allowed to take advantage of the technicalities as to get the tenant somehow evicted. This was also the view taken in 1982 ACJ 300 . 9. Reliance by Sri Mehrotra, was placed on the decision of the Supreme Court in Mranalin B. Shah v. Bapalat Mohanlal Shah, (1980) 4 SCC 251 . Section 12 (3) (b) of the Bombay Rent Control Act, 1947 which came up for consideration in that case provided that no decree for eviction shall be passed in the suit if, on the first date of hearing of the suit or on or before such other date, as the court may fix, the tenant pays or tenders in court the standard rent and thereafter continues to pay or tender in court regularly such rent till the suit is finally decided and also pays costs of the suit as directed by the court. It will be noticed that this was a provision essentially different in character from Order XV rule 5 CPC. This was more akin and corresponding to what is contained in Section 20 (4) of the U. P. Act XIII of 1972. The Supreme Court observed that under Section 12 (3) (b) there was a further opportunity given to the tenant to protect himself against the eviction. If he did not fulfil those conditions he could not claim the protection provided thereunder. This provision did not create any discretionary jurisdiction in the court which is unlike the provision we are concerned with. It provided protection to the tenant on certain conditions and these conditions had to be strictly observed by the tenant who sought the benefit of the section. On account of the obvious distinctive features of that provision, this interpretation cannot be availed by the respondents before me in relation to Order XV rule 5 CPC. 10. Reference by Sri Mehrotra, was made also to Uma Kant Mukerji v. II Additional District Judge, Varanasi, 1983 AWC 653. In that case there was no cause at all shown for the default. The tenant had failed to deposit the admitted rent on or before the first hearing of the suit and had made nine defaults thereafter in depositing monthly rent. The ground averred in the representation was found not to have been established. These facts clearly distinguish the instant case. In Dinesh Chandra Gupta v. Pradeep Bhargava, 1984 ALJ 501 it was observed that no amount was deposited on the date of first hearing. Default was also made in subsequent deposits and the applicant failed on the test of bona fides as well. The bona fides of the tenant constitute a material factor in this regard, vide Puran Chand Gupta v. Ill Additional District Judge, Agra, 1-83 (1) ARC 817. The finding on the question as to whether the cause shown if any, for the default is sufficient or not is essentially and finding of fact based on appraisal of evidence. In the present case the trial court has not gone into the sufficiency or otherwise of the case for default nor has the revisional authority taken this into consideration. The finding on the question as to whether the cause shown if any, for the default is sufficient or not is essentially and finding of fact based on appraisal of evidence. In the present case the trial court has not gone into the sufficiency or otherwise of the case for default nor has the revisional authority taken this into consideration. The application made by the respondents 3 to 7 under Order XV rule 5 CPC was allowed by the trial court upon the short ground that Order XV rule 5 CPC itself provides that the amount in deposit under Section 30 of the U. P. Act XIII of 1972 is liable to be adjusted under this Order. "This as I discussed above, cannot be sustained. Explanation 3 read with sub-rule (1) of rule 5 does not cover by itself a deposit made under Section 30 but the question none the less remains whether the fact of having made deposits under that provisions constitutes in the circumstances of the case sufficient cause within the meaning of sub-rule (2). The revisional authority set aside the order of the trial court on the mere ground that the deposit of monthly amount due has to be in the court where the suit is instituted and a deposit under Section 30 is outside the purview of Explanation 3. The petitioner's counsel urged that not without force that the objection which the petitioner filed on 7/9-8-1979 before the trial court in opposition to the application made by the landlord to strike out the defence coupled with the evidence adduced for deposits having been made under Section 3D could be taken as material to decide whether sufficient cause to explain the default exist. In the objection filed by him the petitioner had averred that he had made these deposits though under Section 30 in the court of the Munsif City, Kanpur. The court below has to consider for purposes of sub-rule (2) whether upon the facts and in the circumstances these deposits can constitute his bonafide act and thus constitute sufficient cause for the monthly amount due having not been regularly deposited in the court where the suit for eviction etc. was brought. The court below has to consider for purposes of sub-rule (2) whether upon the facts and in the circumstances these deposits can constitute his bonafide act and thus constitute sufficient cause for the monthly amount due having not been regularly deposited in the court where the suit for eviction etc. was brought. The respondents have placed on the record a chart vide C. A. 4 which shows the deposits made according to them by the petitioner under Section 30 (1) in the court of Munsif City, Kanpur. For the respondents learned counsel pointed that the earlier deposits in this chart are shown as made in miscellaneous case No. 893 of 1976 but others are shown as made in miscellaneous case No. 895 of 1976 and hence the petitioner may not take advantage of the same. No force can be attached to this part of his contention, the reason being that the number given was inadvertent and in the writ petition it has been explained that this was got rectified on September 11, 1981. The deposits in other words were in Miscellaneous case No. 893 of 1976 under which the application of the petitioner to the court of Munsif City, Kanpur under Section 30 (1) of the U. P. Act XIII of 1972 was registered. 11. In so far as the contention no. 3 is concerned Sri Agarwal for the petitioner raised an extreme argument to the effect that despite the in built limitations contained therein the provision to strike out the defence of a party to the suit in any circumstance is arbitrary and hence ultravires the Article 14 of the Constitution. In view of the findings reached by me on the other two contentions this is not required to be gone into in the present and suffice it may, therefore, to leave it at that. 12. In my opinion, thus the court does not have to ignore the spirit being this provision is sticking to the letter thereof. The power to strike out the defence is enabling; it remains in reserve to be availed in an extreme case of deliberate or wilful default aimed to harass the landlord. This should not, where bona fides on part of the tenant is not lacking, be put into the hands of the landlord as a weapon to cut off the defence. The power to strike out the defence is enabling; it remains in reserve to be availed in an extreme case of deliberate or wilful default aimed to harass the landlord. This should not, where bona fides on part of the tenant is not lacking, be put into the hands of the landlord as a weapon to cut off the defence. If the amount required has been deposited with fair degree of regularity though in a forum different than that where the suit is instituted and the landlord remains entitled nonetheless to withdraw the sum to his credit, it does not appear that despite sub-rule (2) of Order XV rule 5 the court has no option except to exclude the defence. The doctrine, 'what cannot be done directly, should not be permitted indirectly' cannot be invoked because, in the first place, deposit of monthly amount due in accordance with Section 30 is not prohibited as such by Order XV rule 5, and secondly the governing criterion is the bona fides of the tenant who makes the deposit. In the ultimate analysis this would depend on the facts and circumstances of each case. Having regard to the discussion made in the above, the petition succeeds and is allowed accordingly. The order made by the 7th Additional District Judge respondent No. 1 dated July 15, 1980 is quashed. The respondent no. 1 is directed to send back the case to the respondent No. 2 (Additional Judge Small Causes. Kanpur) after setting aside the order made by the letter on September 3, 1979 for the purposes of the application under Order XV rule 5 CPC made by the respondents 3 to 7 being adjudged afresh in accordance with law and in the light of the observations contained herein. There will be no order as to costs. Petition allowed.