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1985 DIGILAW 1037 (ALL)

Urmila Tuli v. Prakash Bhalotia

1985-10-28

S.D.AGARWALA

body1985
JUDGMENT S.D. Agarwala, J. - This is a civil revision filed u/s 25 of the Provincial Small Cause Courts Act. A suit No. 4 of 1977 was filed by Prakash Bhalotia, Plaintiff-opposite party No. 1 for ejectment of the applicant and Major Dhirendra Nath Singh, opposite party No. 2 from a shop in dispute and for arrears of rent amounting to Rs. 3,600/-. This suit was decreed for arrears of rent but dismissed in regard to ejectment, by an order passed by the 1st Additional District Judge dated 29th November, 1978 exercising the power of Provincial Small Cause Court Act. Against this judgment the Plaintiff-opposite party filed a revision No. 530 of 1979 against the refusal to grant a decree for ejectment and sought a modification of the decree passed by the court below. This revision came up for hearing before Hon'ble Gopi Nath, J. (as he then was) who by judgment dated 17.04.1980 remanded the case to the court below for a fresh decision. This Court held that the Act No. XIII of 1972 was applicable to the property in dispute and as such it was necessary to determine whether the Defendants in the suit were defaulters within the meaning of Section 20(1) of the Act. So far as the decree for arrears of rent is concerned, it became final. 2. After the remand by this Court, the Plaintiff-opposite party moved an application (56C) on 9th December, 1980, requesting the court to strike-off the defence of the Defendants. This application was allowed by the court on 08.05.1981. The defence was struck-off. Against the Order dated 07.05.1981 the present revision has been filed by the Defendant-applicant. 3. I have heard the learned Counsel for the parties. Learned Counsel for the revisionist has contended that once the trial court decided the suit it implied that the trial court did not think it proper to strike-off the defence. In the previous revision in this Court also this question was not raised by the Plaintiff-opposite party and as such the court below has acted arbitrarily and unreasonably in the exercise of his discretion in striking-off the defence. 4. In the previous revision in this Court also this question was not raised by the Plaintiff-opposite party and as such the court below has acted arbitrarily and unreasonably in the exercise of his discretion in striking-off the defence. 4. Order XV Rules 5 of the CPC Provides of the follows: (1) In any suit by a lesser for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the Defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent 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 dale 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. Sub-clause (2) of Order XV Rule 5 which is also relevant is quoted below: (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 (I), as the case may be. 5. From a reading of Sub-clause (1) of Order XV Rule 5 of the Code of Civil Procedure, it is clear that discretion has been granted to the court to strike-off the defence. It is mandatory. Even if there is a default, complete discretion has been left on the court to strike-off the defence inspite of default considering the facts and circumstances of each case. 6. Sub-clause (2) further gives the right to a party whose defence is sought to be struck-off to make a representation 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. 7. 6. Sub-clause (2) further gives the right to a party whose defence is sought to be struck-off to make a representation 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. 7. In my opinion, even if no representation is made Under Sub-clause (2) of Order XV Rule 5, still if on the record there are facts and circumstances which appear to the court to be such that the defence should not be struck-off, it is open to the court not to strike-off the defence as the legislature has left this matter to the entire discretion of the court in which the suit is pending. 8. Order XV Rule 5 of the CPC came up for interpretation before the Hon'ble Supreme Court in the case of Bimal Chand Jain v. Sri Gopal 1981 AWC 529 . The Hon'ble Supreme Court held as follows: We must remember that an order Under Sub-rule (1) striking-off the defence is in the nature of penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is reserve of discretion vested in the court entitling it not to strike-off the defence if on the facts and a circumstance already existing on the record it finds good reason for not doing so. It will always 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. The word "may" in Sub-rule (1) merely vests power in the court of to strike-off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (Supra). 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. 9. In the instant case, in the order it has categorically been stated that the rent for the period 1st February, 1976 to 31st March, 1979 had been deposited on 13th February, 1979. The suit, in fact, had been filed in the year 1977. 9. In the instant case, in the order it has categorically been stated that the rent for the period 1st February, 1976 to 31st March, 1979 had been deposited on 13th February, 1979. The suit, in fact, had been filed in the year 1977. There was, therefore, default in compliance with the provisions of Order XV Rule 5 Code of Civil Procedure. Inspite of this default the trial court proceeded to hear the suit, considered the defence of the applicant and thereafter passed a final judgment dated 29.1.978. It is also apparent from the record that the trial court considered the defence of the applicant and it was thereafter that the decree for ejectment was not passed by the trial court and only a decree for arrears of rent had been passed. Consequently, by implication it has to be held that the trial court, in fact exercised its discretion not to strike-off the defence as required under Order XV Rule 5 Code of Civil Procedure. In the trial court no application was made by the Plaintiff-opposite party for striking-off the defence. No representation was either made Under Sub-clause of Order XV Rule 5 by the applicant. The matter came to this Court in revision only against the decree for ejectment. In this Court also the question of striking-off the defence of the applicant was neither raised nor considered by this Court and in fact, the matter was remanded to the court below for a decision on the question as to whether a decree for ejectment could be passed or not. On the facts and circumstances of the case it is consequently apparent that the trial court before whom the suit was pending before passing the decree dated 29.01.1978 did not exercise the discretion to strike-off the defence. Now after remand the trial court has struck-off the defence on default which had occurred prior to 29.11.1978 In my opinion, the court below has misconstrued the power which was conferred upon it Under Order XV Rule 5 of the CPC and has acted completely arbitrarily and unreasonably in the exercise of its discretion in striking-off the defence when its predecessor who had passed the decree had impliedly on the basis of the facts and circumstances of the case did not strike-off the defence. The submission made by the learned Counsel for the revisionist is accordingly well founded. 10. The submission made by the learned Counsel for the revisionist is accordingly well founded. 10. It may, however, be pointed out here that since Order XV Rule 5 of the CPC provides for deposit of monthly rent also during the pendency of the suit, it will be open to the Plaintiff-opposite party to raise an objection before the court below in case there is a fresh default in the payment of rent in accordance with the terms of Order XV Rule 5. 11. In the result, the revision is allowed. The order dated 07.05.1981s set aside and the application (56-C) moved by the -Plaintiff-opposite party is hereby rejected. The court beloved shall now proceed to decide the case in accordance with the directions issued by this Court in the judgment dated 17th April, 1980. Since the suits pending since 1977, it is in the interest of justice that the trial court will dispose of the case very expeditiously. The parties are directed to bear their own costs.