Kailash Chandra v. Lalta Prasad — 1986 DIGILAW 492 (ALL)

JUDGMENT A.N. Dikshita. J. 1. By this petition under Article 226 of the Constitution the Petitioners have claimed a writ of certiorari for quashing the judgment and order dated 19.7.80 passed by Respondent No. 3 decreeing the suit and the judgment and the order dated 24.1.81 passed by Respondent No. 4. 2. Briefly stated the facts lie in a narrow campus ; Respondent No. 1 being the landlord-owner of the suit premises filed a suit in the court of Munsif, Fatehpur for the eviction of the Petitioners from the portion in the tenancy and occupation of the Petitioners as well as Respondent No. 2 who was imp leaded as a preformed Defendant Besides claiming a decree for eviction the Respondent No. 1 had also claimed a decree for the recovery of Rs. 892.08 being the arrears of rent besides damages and interest together with pendent late and future damages for wrongful use and occupation at the rate of Rs. 300/- per month. A copy of the plaint has been annexed as Annexure-1 to the writ petition. This suit was apparently filed on the basis of a composite notice of demand within the meaning of Section 3(1)(a) of the U.P. Temporary Control of Rent and Eviction Act (Act No. Ill of 1947) as well as u/s 6 of Transfer of Property Act. The Respondent No. 1 had also claimed eviction of the Petitioners on the grounds enumerated in Sections 3(1)(b) and 3(1)(c) for having caused damages to the tenanted premises as well as also effecting material alterations in it. 3. On coming into force of the Civil Laws Amendment Act this was transferred to the Court of Judge Small Causes and was preceded as such. This suit was contested by the Petitioners denying the allegations of the Respondent No. 1. A written-statement was filed Copy whereof has been annexed as Annexure-3 to the writ petition. As certain amendments were incorporated in the plaint an additional written-statement which is annexed as Annexure-4 to the petition was filed by the Petitioner. 4. In support of his case Respondent No. 1 Lalta Prasad the landlord of the premises examined himself as PW 1 on 28.7.77 while one Raj Bahadur was examined as PW 2 on 25.8.77. Later on Respondent No. 1 was recalled and his statement was recorded on 4.7.80. 4. In support of his case Respondent No. 1 Lalta Prasad the landlord of the premises examined himself as PW 1 on 28.7.77 while one Raj Bahadur was examined as PW 2 on 25.8.77. Later on Respondent No. 1 was recalled and his statement was recorded on 4.7.80. Their statements have been annexed as Annexures 5, 6 and 7 respectively to the writ petition. 5. The Petitioners while contesting the suit complied with the requirements as enjoined u/s 20(4) of Act XIII of 1972 as well as of the provisions as enshrined under Order XV Rule 5 of the Code of Civil Procedure. However, as rent for the month of January 1979 which was to be deposited by 7.2.79 could not be deposited, the Petitioners filed a tender for depositing the same as well as of the subsequent months. This tender having been allowed the amount was deposited on 1.3.1979. 6. Later on Respondent No. 1 filed an application on 18.4.1979 praying for striking off the defense of the Petitioners as contemplated under Order XV Rule 5 CPC on the allegation that the rent of the premises in dispute for the period January 1979 which ought to have been deposited by 7.2.1979 was deposited only on 1.3.79. However, prior to the filing of such an application by Respondent No. 1 for striking off the defense the Petitioners had already deposited the rent as stated above. Opposing the application the Petitioners filed objections supported by an affidavit of Petitioner No. 2. It was stated on behalf of the Petitioners that the rent for the month of January 1979 which should have been deposited by 7th February, 1979 could not be deposited as the Petitioner No. 2 who was doing necessary pair on behalf of the other Petitioners fell ill on 5.2.79 and remained ill until 27.2.79. The Petitioner No. 2 having recovered from the illness immediately rushed to the court, filed the requisite tender which was passed and the rent not only for the month of January 1979 but also for the month of February 1979 was deposited on 1.3.1979. The medical certificate in support of his illness issued by Dr. Ram Gopal Gupta was also filed. The medical certificate in support of his illness issued by Dr. Ram Gopal Gupta was also filed. It was also stated by the Petitioners that at no time they had committed any default in the deposit of the rent and it was only on account of the illness that he was prevented in depositing the rent. Significantly the Respondent No. 1 did not file any counter-affidavit repudiating the allegations contained in the application which was supported by an affidavit. The statement on oath of Petitioner No. 2 thus remained unrequited on oath. 7. Respondent No. 3 rejected the representation by his order dated 11.9.79 which he construed to be one under Sub-rule (2) of Rule 5 of Order XV Code of Civil Procedure. This representation was rejected primarily on the ground that if the Petitioner No. 2 was ill the other Petitioners Could have complied with the formalities as per the provisions of law in depositing the rent for the month of January by 7th February, 1979. An application dated 18.4.79 for striking off the defense was filed by Respondent No. 1 within the meaning of Order XV Rule 5 CPC after the rent was deposited by the Petitioners. This application was filed in view of the non-compliance of Order XV Rule 5 CPC claiming strike off the defense of the Petitioners. Further the trial court found that no explanation is forthcoming in the representation in respect of the period from 1st February to 5th February when the Petitioner No. 2 was admittedly not ill. It was further found by the Respondent No. 3 that as there had been no compliance of the provisions of Order X v. Rule 5 CPC in the non-deposit of rent by 7.2.79, the defense was liable to be struck off. The application filed by Plaintiff-Respondent No. 1 for striking off the defense was thus allowed and defense of the Defendant Petitioners was struck off it may be significant to mention here that the Respondent No. 1 did not disbelieve the fact that the Petitioner No. 2 was solely doing pair of the case. Further more the Respondent No. 3 did not disbelieve that the Petitioner No. 2 was not ill and as such the rent could not be deposited in the court on account of his illness. Further more the Respondent No. 3 did not disbelieve that the Petitioner No. 2 was not ill and as such the rent could not be deposited in the court on account of his illness. The defense was struck off as stated above on the ground that the Petitioner No. 2 was admittedly well during the period 1st February to 5th February, 1979 during which period the rent could have been deposited and the subsequent deposit being beyond the period would be of no avail to the Petitioners so as to save them from the penalty of the striking off the defense. 8. The Petitioners aggrieved by the order dated 11.9.79 passed by Respondent No. 3 preferred a revision u/s 25 of Provincial Small Causes Courts Act which was dismissed by Respondent No. 4 (District Judge, Faithful) vide his judgment and order dated 25.3.80. The Respondent No. 4 based his findings on a different consideration that the affidavit bears the deponent as Petitioner No. 1 instead of Petitioner No. 2. As Petitioner No. 2 was not available, the affidavit of Petitioner No. 2 was filed. Anyhow such a controversy was never raised before the Respondent No. 3. Finding the ghost story about the illness of Appellant Kailash Chandra as cooked up the averments of the affidavit were found to be less truthful. There is not even a whisper in the judgment and order of the Respondent No. 3 striking off the defense that it had ever disbelieved the factor of illness. Such a finding of fact believed by the Respondent No. 3 about the illness of the Petitioner No. 2 was disbelieved by Respondent No. 4 thus interfering with the rending of fact and more so when Respondent No. 1 had himself not ventured to file any counter-affidavit repudiating the fact of illness of Petitioner No. 2. 9. The Petitioner on the dismissal of their revision application by the judgment and order of Respondent No. 4 preferred a writ petition to this Court which however, was dismissed in liming by Hon. A.N. Varma, J. 10. In view of the striking off the defense of the Petitioners the trial court Respondent No. 3 did not permit the Petitioners to participate in the proceeding or to produce any oral evidence. The suit was ultimately decreed by the trial court per judgment and order dated 19.7.80. In view of the striking off the defense of the Petitioners the trial court Respondent No. 3 did not permit the Petitioners to participate in the proceeding or to produce any oral evidence. The suit was ultimately decreed by the trial court per judgment and order dated 19.7.80. A copy of the judgment and order decreeing the suit is annexed as Annexure 10 to the writ petition. 11. The Petitioners being aggrieved from the judgment and order decreeing the suit of Respondent No. 3 preferred a revision u/s 25 of the Provincial Small Causes Courts Act to the Court of District Judge, Faithful, Respondent No. 4 This revision was dismissed by Respondent No. 4, vide judgment and order dated 24.1.1981. A copy of the order dismissing the revision is annexed as Annexure 11 to the writ petition. 12. Thus this petition under Article 226 of the Constitution has been filed for issuing a writ of certiorari quashing the judgment and order dated 19.7.80 passed by Respondent No. 3 decreeing he suit and the judgment and order dated 24.1.1981 passed by Respondent No. 4 dismissing the revision. 13. Counsel for the parties have been heard at great length. 14. Learned Counsel for the. Petitioners has submitted that the court below erred in law in striking told the defense and as such the judgment and order decreeing the suit exporter is vitiated an account of an error apparent on the face of record and the manifest illegality committed be Respondent Nos. 3 and 4. It has been submitted teat there was enough compliance of Order XV Rule 5 CPC and the cause for the delay, if any. Was fully explained being reasonable. There is merit in the submission. The amount to rent for the month of January was liable to be deposited on 7.2.79 but was deposited on 1.3.79 after getting the tender passed by the trial court. It is from the date when the tender was passed that the Petitioner was to explain the delay. Once the trial court (Respondent No. 3) has allowed this application for deposit of the amount, it cannot be said that no such permission was available for the deposit to the amount. It is from the date when the tender was passed that the Petitioner was to explain the delay. Once the trial court (Respondent No. 3) has allowed this application for deposit of the amount, it cannot be said that no such permission was available for the deposit to the amount. The delay in depositing the amount so as to avail the benefit of Order XV Rule 5 CPC was explained later on when an application for striking off the defense was filed by opposite party No. 1. The court while permitting the Petitioners to deposit the amount had apparently condoned such delay. However, when such an application for striking old the defense was filed an affidavit was filed on behalf of the Petitioners that the amount could not be deposited in view of the illness of one of the Petitioners No counter-affidavit was filed still the trial court (Respondent No. 3), struck off the defense Tie averments as contained in the affidavit in the absence of any counter-affidavit being filed were liable to be believed. The trial court thus fell in error in law in striking off the defense. It is also significant that the Respondent No. 3 did not disbelieve the factor of illness of Petitioner No. 2 The defense was struck off on the premise that Petitioner No. 2 was well during the period 1.2.79 to 5.2.79. Such a view is manifestly illegal en the face of it The postulates of Order XV Rule 5 CPC clearly provide for the deposit of the amount by 7th and in case of delay up to a period of ten days If a person was prevented to deposit the amount even beyond this period it cannot be sustained that he was guilty of not complying with the provisions of Order XV Rule 5 CPC and as such cannot be permitted to participate in the proceedings or maintain the defense set up by him. There can be various instances where a person may be prevented. If a person goes out of station and meets with an accident and is admitted to a hospital and the period for the deposit of the amount expires and when an application for deposit is made then it cannot be said that for non-compliance of Order XV Rule 5 CPC his defense is liable to be struck off. If a person goes out of station and meets with an accident and is admitted to a hospital and the period for the deposit of the amount expires and when an application for deposit is made then it cannot be said that for non-compliance of Order XV Rule 5 CPC his defense is liable to be struck off. This is only one of the reasons that have been mentioned and there may be various other reasons It is the duty of the court in such a situation to examine liberally the grounds for the delay as it deprives a person of a valuable right to substantiate his defense. A deprivation of such right would be prejudicial to the interest ot a person who for some cogent or tangible reasons was prevented in complying with the tenets of the statute. 15. However, Respondent No. 4 went further in examining the findings of fact instead of scanning the legality of the order regarding striking off defense. 16. Although a writ against the order of striking off the defense passed by the Respondent No. 3 and maintained by Respondent No. 4 was no doubt rejected in liming but that by itself would cot act as estoppels against the Petitioners and the Petitioners are fully competent to raise the plea after the suit was decreed exporter. It cannot act as res-judicata against the Petitioners. 17. In the case of Hoshnak Singh v. Union of India AIR 1979 SC 1328 it was held that if a petition under Article 226 is dismissed not on merits but because an alternative remedy was available to the Petitioner or that the petition was dismissed in liming without speaking order such dismissal is not a bar to the subsequent petition under Article 32. It was held as under: It must follow as a necessary corollary that a subsequent petition under Article 226 would not be barred by the principles analogous to res-judicata. While distinguishing the case of Daryao and Others Vs. The State of U.P. and Others, AIR 1961 SC 1457 the ratio as propounded in the case of Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras AIR I968 SC 1196 was accepted. It was further held by the Supreme Court while examining the case of Daiyao v. State of U.P. (supra) in the case of P.D. Sharma Vs. The State of U.P. and Others, AIR 1961 SC 1457 the ratio as propounded in the case of Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras AIR I968 SC 1196 was accepted. It was further held by the Supreme Court while examining the case of Daiyao v. State of U.P. (supra) in the case of P.D. Sharma Vs. State Bank of India, AIR 1968 SC 985 the preliminary objection about the bar of res-judicata was negatived. It was held in the case of Hoshnak Singh v. Union of Itdia (supra) as under: It is, therefore, incontrovertible that where a petition under Article 226 is dismissed in liming without a speaking order such a dismissal would no constitute a bar of resjudiciary to a subsequent petition on the same cause oft action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the Petitioner had an alternative remedy by way of a revision petition u/s 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief. It would be incorrect in such a situation to dismiss the petition on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the provisional authority and, therefore, the challenge on the fresh cause of action to the order made by the provisional authority would of necessity be a challenge to the provisional order also and the petition would be barred by the principles analogous to res-judicata as the first order had become final. The High Court was clearly in error in dismissing the petition on the short ground. 18. Another fact which cannot be ignored is that the application for the striking off the defense was filed much later than the deposit. On the day of the application the amount was already in deposit by an order of the court. The Petitioners cannot be penalized to the extent for the month of January when the Petitioners promptly deposited the amount which became due. The benefices of the Petitioners thus stand established. 19. Neither any lapse on the part of the Petitioners has been shown nor have any malafides been attributed. The Petitioners cannot be penalized to the extent for the month of January when the Petitioners promptly deposited the amount which became due. The benefices of the Petitioners thus stand established. 19. Neither any lapse on the part of the Petitioners has been shown nor have any malafides been attributed. If the Petitioner who was doing the pair of the case was ill, then the penalty of striking off the defence ought not to have been awarded and forfeit a valuable right to keep his tenancy intact for a paltry sum. 20. In the case of Smt. Dharamwati Devi v. Addl. District Judge, Gorakhpur 1985 (2) ARC 14 it was held that for a small amount of Rs. 29.20 which was sought on the first date of hearing ice defense within the contemplates of Order XV Rule 5 CPC ought not to be struck off. 21. In ihe case of Smt, Leela Devi v. Smt. Shanti Devi Jaiswal 1985 (2) ARC 144 it was held that a liberal view in the deposit of the amount shall be taken and on account of erroneous advice by the counsel a person Cannot be deprived of setting up his detence. 22. In the case of Bimal Chand Jain v. Sri Gopal Agarwal 1981 AWC 529 the Supreme Court held that the powers of the court under Order XV Rule 5 CPC are discretionary. It was held as under : Sub-rule (2) of Order XV of the code obliges the court before making an order of striking off the defense to consider any representation made by the Defendants in that behalf. In other words the Defendant has been vested with a statutory right to make a representation to the Court against his defense being struck off. If a representation is made, the Court must consider it on its merits and then decide whether the defense should or should not be struck off. This is a right expressly vested in the Defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now it is not impossible that the record may contain such material already. This is a right expressly vested in the Defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now it is not impossible that the record may contain such material already. In that event, can it be said that Sub-rule (1) obliges the court 'to strike off defense; It must be remembered that an order under Sub-rule (1) striking off the defense is in ice nature of a 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 defense 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 Sub-rule (2) the defense should not be struck off. The word ' may ' in Sub-rule (I) merely vests power in the court to strike off the defense. It does not oblige it to do so in every case of default. This discretion has to be exercised in a judicial manner and when cogent and sufficient reasons were set forth explaining the delay occasioned in the deposit of rent the Respondent No. 3 as well as the Respondent No. 4 erred in law in disregarding it. The valuable right of the Defendant to contest the suit was thus denied. In any case the delay being bone-idle and having been fully explained the technicality should not prevail much to the prejudice of a person whose tenancy is at stake. 23. In the case of Gopal v. Pyare Lai 1985 (1) ARC 131 it was held that even in the absence of representation by the tenant it was open to the court to have accepted the written-statement. Here no representation was made but the court allowed the deposit. It was only at a later stage that an application for striking off the defence was filed and which was allowed. Here no representation was made but the court allowed the deposit. It was only at a later stage that an application for striking off the defence was filed and which was allowed. It is clear that justice has not been advanced in the case by striking off the defense in the manner where the tenant has been a good pay master as set up by him in his written-statement. Under such circum stances such exercise of discretion by the court operate harshly in the striking off the defence. 24. In the case of Smt. Rama Devi v. IV Additional Distiict Judge, Deoria 1985 (1) ARC 507 a similar view was taken that in the absence of any representation being made by the Defendant for condoning the delay in making the deposits the defense was not liable to be struck off as a duty is cast on the court to consider all the facts and circumstances existing on record before passing an order striking off defense under Order XV Rule 5 Code of Civil Procedure. It has been held on more than one occasions that even if the deposit is illegal it would endure for the benefit of the tenant. 25. In the case of Ram Das v. VI Additional District Judge, Azamgarb, 1985 AWC 856 it was held that the provisions of Oruer XV Rule 5 CPC should be construed liberally. 26 In view of the above the order striking off the defense passed by the trial court and the revision preferred against that order maintaining the striking off the defense are liable to be set aside and as such deserved to be quashed The judgment and order decreeing the suit exporter in the absence of any defense also deserve to be set aside and the case as such is liable to be remanded back to the trial court for disposal according to law on the basis of the defense set up by the Petitioners. 27. It was further urged on behalf of the Petitioners that in the instant case even it the defense was struck off a duty was cast on the court to examine whether the suit could be decreed in the absence of any defense. There may be instances where a person may not file a written-statement but may still participate in the proceedings just to explore the truthfulness of the adversaries' case. There may be instances where a person may not file a written-statement but may still participate in the proceedings just to explore the truthfulness of the adversaries' case. It is found in the instant case that the Petitioners were precluded from participating in the proceeding. Such a situation has arisen on an erroneous assumption of law. Even after the striking off the defense a person has a right to participate in the proceedings as has been held in the case of Joginder Singh Vs. Teerath Mal and Others, AIR 1980 All 351 Whenever the defense of a tenant is lawfully struck off then he may not be permitted to tender evidence or examine any witness in support of the case But still the tenant cannot be prevented from cross-examining the Plaintiffs witnesses and from showing that on the basis of material on record the Plaintiff was not entitled to any decree On this ground also the judgment and order decreeing the Respondent no l's suit exparte in default of the Petitioners is liable to be set aside. 28. Another argument advanced on behalf of the counsel for the Petitioner is that the notice is illegal and does Dot validly terminate the tenancy of the Petitioner as catena of decisions are there that the tenancy cannot be terminated in part and such a notice would only be illegal and invalid. It is open to the parties during the trial to point out such invalidity and at this stage as the case is being remanded back to the trial court afresh according to law it is not expedient to examine the correctness of the submission. 29. Learned Counsel for the Petitioner then very strenuously submitted that the Respondent No. 4 while dismissing the revision preferred against the judgment and order passed by Respondent No. 3 decreeing the suit in default has committed a patent terror of law in coming to a conclusion that the scope of revision u/s 25 of the Small Causes Courts Act is almost similar to the scope of a revision u/s 115 CPC There appears to be merit in this submission. The Respondent No. 4 while dismissing the revision has held that the scope of revision u/s 25 of the Small Causes Courts Act is almost similar to the scope of a revision u/s 115 CPC and in both the cases unless it is shown that the trial court has acted with material irregulauty or has not exercised the jurisdiction vested in it or has recorded a perverse finding the revision will not lie. Such a view as has been held by the Respondent No. 4 is contrary to the catena of decisions where it has been held that the scope of revision u/s 25 of the Small Causes Courts Act is much wider than the scope of revision u/s 115 Code of Civil Procedure. 30. In Ram Krishna Shukla v. Sri Ramjanki through Sri Rambalak Das AIR 1957 Pat 168 a similar view was taken that u/s 25 of the Small Causes Courts Act the High Court has wider power of interference than u/s 115 Code of Civil Procedure. Of course the findings of fact recorded by the trial court cannot be reversed but interference on the findings of the trial court would be achieved where it has taken an erroneous view of law. 31. In Mumtaz Nabi v. District Judge, Plight 1982 AWC 542 this Court took the view that it is well-known that the scope of revision u/s 25 Small Causes Courts Act is restricted. It may not be as restricted as the scope u/s 115 Code of Civil Procedure. None the less the scope is limited in comparison to the regular first appeal. It is thus abundantly clear that the Respondent No. 4 while dealing with the revision preferred u/s 25 committed an error in law and the order dismissing the revision has to be set aside. 32. Accordingly the judgment and order dated 19.7.80 decreeing the suit passed by the Respondent No. 3 and the judgment and order coated 24.1.81 dismissing the revision passed by Respondent No. 4 thus deserve to be quashed. Similarly the order dated 19.7.79 passed by Respondent No. 3 striking off the defense and the judgment and order dated 25.3.80 dismissing the revision preferred against it also deserve to be quashed. 33. In the result the petition succeeds and is hereby allowed with costs throughout. Similarly the order dated 19.7.79 passed by Respondent No. 3 striking off the defense and the judgment and order dated 25.3.80 dismissing the revision preferred against it also deserve to be quashed. 33. In the result the petition succeeds and is hereby allowed with costs throughout. The judgment and decree dated 19.7.80 passed by Respondent No. 3 and the judgment and order dated 24.1.81 dismissing the revision passed by Respondent No. 4 are hereby quashed. Similarly the order dated 11.9.79 passed by Respondent No. 3 striking off the defense and the judgment and order dated 25.3.80 dismissing the revision preferred against it are also quashed. The case is remanded back to the court of Judge Small Causes, Faithful for disposal according to law in the light of the observations made above.