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1986 DIGILAW 335 (ALL)

Bhupendra Vikram Singh v. Surendra Kumar Sehgal

1986-04-24

D.N.JHA

body1986
JUDGMENT D. N. Jha, J. - This revision is directed against the order passed by the III Additional District Judge, Lucknow dated 29th July, 1985 in S. C. C. suit No. 6 of 1985 whereby he struck off the defence of the revisionist under Order XV Rule 5 C. P. C. 2. The facts briefly are that the revisionist is a tenant of disputed premises of which opposite party Sri Surendra Kumar Sehgal is the landlord. The landlord filed a suit for ejectment and arrears of rent. The rent was not paid for the period 1983 to 141084. The rent admittedly was Rs. 368/ per month. On account of the valuation the suit was instituted in the Court of District Judge and the first date fixed was 14th March, 1985. This was a holiday and the case could not be taken up as the Courts were closed on that day. On 15385 the revisionist submitted his written statement along with a tender for the entire amount claimed in the suit. This written statement and tender unfortunately were filed in the Court of the Judge, Small Causes under a mistaken belief. The case was fixed for 19th March, 1985 and on this date the revisionist moved an application seeking permission for rectification of the error. This application remained pending as no orders were passed. The case was then listed for 11485 but the Presiding Officer was busy and hence the case was fixed for 16585. On this date the case was transferred to the Court of III Additional District Judge and same was listed before the III Additional District Judge on 8785. On that date the revisionist was absent and the case was adjourned to 25785. On 25785 the landlord moved an application under Order XV Rule 5 to strike off the defence of the revisionist as the revisionist had failed to deposit the amount on the first date of hearing. The case was, however, fixed for 29th July, 198. The revisionist on 27785 moved an application for depositing the entire amount and on 29785 the entire amount was deposited by the revisionist. The III Additional District Judge on 29785 after hearing the parties struck of the defence of the revisionist and this is how this revision is before this Court. 3. The revisionist on 27785 moved an application for depositing the entire amount and on 29785 the entire amount was deposited by the revisionist. The III Additional District Judge on 29785 after hearing the parties struck of the defence of the revisionist and this is how this revision is before this Court. 3. I have heard learned counsel for the parties and gone through the impugned order passed by the learned III Additional District Judge. It cannot now be said that the law on the interpretation of Order XV Rule 5 is in a melting pot. In the instant case it transpires from the record that under Section 30 of the Act XIII of 1972, hereinafter referred to as the Act", prior to the receipt of the notice of the present suit by the revisionist, rent upto 31185 had already been deposited in the Court of Munsif South. The further rent only remained to be deposited in accordance with the explanation provided to Order XV Rule 5. It is not disputed before me that the rent of March, 1985 was deposited by the revisionist on 24485, and the rent for April, 1985 was deposited on 951985. The rent for May and June was deposited on 29th July, 1985. It is, no doubt, true that this amount has not been deposited as stipulated within the four corner of the language of Order XV Rule 5. The court has laid stress mainly on two points, viz., that the future rent had not been deposited by the 7th of each successive month and no representation was made to the Court for extending the time of deposit Therefore, the Court reached the conclusion that the deposit cannot be treated within time. The Court thereafter proceeded to deprecate the conduct of the revisionist inasmuch as he was not present in person and ultimately struck off the defence of the revisionist. It is now well settled that an order under Subrule 1 of Order XV Rule 5 striking of the defence is in the nature of penalty. Therefore, the Courts are expected to act with greatest circumspection while exercising the discretion. The reading of the provision shows that a serious responsibility rests on the Court and the discretion is not to be exercised mechanically. Therefore, the Courts are expected to act with greatest circumspection while exercising the discretion. The reading of the provision shows that a serious responsibility rests on the Court and the discretion is not to be exercised mechanically. It has been observed by the Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal ( AIR 1981 SC 1657 ) that there is a reserve of discretion vested in the Court entitling it not to struck off the defence if on the facts and circumstances 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 Subrule (2), the defence should or should not be struck off. 4. It is being noticed time and again that in order to cut short the proceedings Courts are indiscriminately using this weapon and I have no hesitation in observing that the instant case is a living example. The Court below has not taken into account the fact that even before the service of the summons on the revisionist, the revisionist proceeded to deposit rent upto 31st January, 1985 in the Court of Munsif South. This fact although appears to have been urged on behalf of the revisionist and finds place in the order but the learned Judge did not apply his mind to this conduct of the revisionist. It has been brought to my notice that April 7th and 8th were not working days and, therefore, it was on 9th May, 1985 that the rent for April was deposited. No doubt there has been slight delay in depositing the rent of March, May and June but can it be safely said that it was because of the guilty mind that the revisionist purposely delayed the deposit of money. The rent or the damages payable by the revisionist were deposited and in this Court the revisionist offered to deposit one year's rent in advance. This offer could be reasonably made before the trial Judge but, however, since this voluntary statement has been made I am satisfied that it cannot be said that the conduct of the revisionist smacks irresponsibility. The learned counsel for the opposite party stated that there was no mention of any offer on record. This offer could be reasonably made before the trial Judge but, however, since this voluntary statement has been made I am satisfied that it cannot be said that the conduct of the revisionist smacks irresponsibility. The learned counsel for the opposite party stated that there was no mention of any offer on record. Be that as it may, a statement made from the Bar can be accepted by a Court and can act upon it. It is not necessary that every thing should be reduced to writing. The terms of the Vakalatnama executed in favour of a counsel is binding on the client. It is not necessary to make any further observation to this submission of the learned counsel. 5. It is observed that the court should carefully go through the same valuable decisions pronounced on the subject involved in this revision. The observations made by the Supreme Court in Bimal Chand Jain v. Gopal Agarwal (Supra), Miss Santosh Mehta v. Om Prakash and others (1980 Allahabad Civil Journal 559) and Jagannath v. Ram Chandra Srivastava and others (1982 Allahabad Law Journal 1324) need special reference. The sum and substance of these decisions would reveal that the courts are expected to adopt a socially uniform perspective while construing the provisions and not to act in a routine manner regarding the punitive texture provided in the four corners of Order XV Rule 5. Even if the provisions are mandatory in nature even then the discretion has to be exercised by the court by visualising the entire facts and circumstances of the case. The Rent Control Laws basically are designed to protect tenants because of scarcity of accommodation which is no doubt a nightmare for those who do not own any accommodation. The decisions cited above would always emanate new notice wave for enlightenment and the courts before exercising the discretion should carefully Marshall out the fact before the striking off defence on nondeposit. If the learned Judge had acted with circumspection the unnecessary delay in the disposal of the case would have been avoided. I have no hesitation in observing that the learned trial Judge did not act with prudence while striking of defence of the revisionist. The order, therefore, cannot be sustained in the light of the circumstances that have been brought to the notice of the court. 6. I have no hesitation in observing that the learned trial Judge did not act with prudence while striking of defence of the revisionist. The order, therefore, cannot be sustained in the light of the circumstances that have been brought to the notice of the court. 6. I would, however, like to order that the revisionist will deposit damages in advance for the use and occupation of the premises for a period of one year from July, 1985 till June, 1986 by 31st of May, 1986, if not already deposited and thereafter he will again deposit in advance the damages for use and occupation for a period of six months within 15 days and keep on doing so till the suit is finally disposed of. 7. The revision is allowed in the light of the observations made above, the order passed by the III Additional District Judge, Lucknow is set aside and the lower court is directed to dispose of the suit as expeditiously as possible avoiding unnecessary adjournment. (Revision allowed.)