JUDGMENT G.B. Singh 1. Bhagat Kundal Lal opposite party no. 3 is landlord owner of house no. 553/151 Adarsh Nagar, Lucknow. Hotu Ram Sachdeva petitioner took one room and some other portion of the house on monthly rent of Rs. 30/- per mensem somewhere in the year 1966. Hotu Ram Sachdeva continued to occupy the aforesaid accommodation. According to Hotu Ram Sachdeva the rent continued to be Rs. 30/- per mensem, whereas Bhagat Kundan Lal claimed that it was enhanced upto Rs. 52/- per mensem. Some dispute, therefore, arose between the parties in the year 1973 regarding arrears of rent. Bhagat Kundan Lal opposite party no. 3, therefore, filed SCC suit No. 914 of 1973 for ejectment of Hotu Ram Sachdeva and arrears of rent and damages for use and occupation That suit was decreed on 27-4-1974. Hotu Ram Sachdeva filed revision against that judgment and it was partly allowed on 27-1-1976. The suit for eviction was dismissed and decree for arrears of rent was maintained Bhagat Kundan Lal thereafter filed SCC Suit No. 1838 of 1976 for recovery of a sum of Rs. 520/- as arrears of rent alleging that the rate of rent was Rs. 52/- per mensem in that suit also Hotu Ram Sachdeva contended that the rate of rent is Rs. 30/- per mensem. That suit was decreed on 28-7-1980 for recovery of the aforesaid sum as arrears of rent holding that the rate of rent is Rs. 52/- per mensem. Against that judgment also Hotu Ram Sachdeva filed revision but it was dismissed in default. An application for restoration of the revision has been moved by Hotu Ram Sachdeva and it is pending in the Court of revision. Bhagat Kundan Lal filed third suit on 1-4-1978 for recovery of a sum of Rs. 884/- as arrears of rent from 1-11-1976 to 31-3-1978 at the rate of Rs 52/- per mensem and for ejectment of Hotu Ram Sachdeva. This suit was also contested by him pleading inter alia that the monthly rate of rent is Rs. 30/ per mensem and he is not liable to ejectment. 884/- as arrears of rent from 1-11-1976 to 31-3-1978 at the rate of Rs 52/- per mensem and for ejectment of Hotu Ram Sachdeva. This suit was also contested by him pleading inter alia that the monthly rate of rent is Rs. 30/ per mensem and he is not liable to ejectment. In this suit Bhagat Kundan Lal moved an application under Order 15 Rule 5 CPC for striking off the defence contending that the defendant has not paid the entire amount on the first date of hearing and has not been regularly depositing the rent, due as required under Order 15 Rule 5 CPC. Against this application Hotu Ram Sachdeva filed objection denying that he committed any default as pleaded by Bhagat Kundan Lal. The learned Additional Judge Small Causes Courts, Lucknow held in his order dated 9-12-1981 that Hotu Ram Sachdeva tenant failed to make deposit of rent regularly as required under Order 15 Rule 5 CPC so his defence is liable to be struck off. He accordingly allowed the application of Bhagat Kundan Lal and struck off the defence. He then proceeded with the case and decreed the suit for eviction and for recovery of a sum of Rs. 884/- as arrears of rent and pendente lite and future damages for use and occupation at the rate of Rs. 52/- per mensem. Against that judgment Hotu Ram Sachdeva filed a revision but it was dismissed holding that the defence was rightly struck off. Hotu Ram Sachdeva then filed the present writ petition for quashing the aforesaid order striking off the defence and the judgments passed by the trial Court and the Court of revision Annexures no. 9, 10 and 15. His main contention is that he did not commit any default in deposit of admitted rent or monthly amount within the meaning of Order 15 Rule 5 CPC and the Court struck off the defence without properly appreciating the real controversy and legal position. Bhagat Kundan Lal opposite party no. 2, on the other hand, pleaded that his defence had been rightly struck off for not depositing the admitted rent and did not deposit regularly the monthly amount due from him. During pendency of the writ petition Hotu Ram Sachdeva died. His widow Smt. Mohini Kumari and two sons Narendra Kumar Sachdeva and Manoj Kumar Sachdeva were, therefore, substituted as his legal representatives. 2. During pendency of the writ petition Hotu Ram Sachdeva died. His widow Smt. Mohini Kumari and two sons Narendra Kumar Sachdeva and Manoj Kumar Sachdeva were, therefore, substituted as his legal representatives. 2. It was vehemently argued by the learned counsel for the petitioner that no default as contemplated by Order 15 Rule 5 CPC was committed by Hotu Ram Sachdeva and the order striking off the defence and decreeing the suit has been passed without giving an opportunity to prove his defence. There is much force in this contention. Rule 5 has been added to Order 15 CPC by U. P. Act No. 57 of 1976. It provides that under any suit by a lessor for the eviction of a lessee after determination of his lease and for the recovery of rent and 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 9% per mensem. It further provides that the lessee whether admits or not any amount to be due he shall throughout continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual. Explanation (iii) added to this rule shows that the expression 'monthly amount due' means the amount due at the admitted rate of rent. This rule further provides that 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 the Court may strike off his defence It is also provided in this rule that before making an order for striking off the defence, the Court may consider the representation made by the defendant in that behalf. 3. In the present case the defendant made a representation and the impugned order shows that it was considered before striking off the defence. The defendant petitioner assails the order of striking off the defence mainly on the ground that no default was committed by him and his defence was struck off without properly appreciating the controversy and legal position involved. 4. In Suit No. 446 of 1978 the rent was claimed from 1-11-1976 to 31-2-1978 i. e., for 17 months at the rate of Rs 52/- per mensem amounting to Rs. 884/.-. 4. In Suit No. 446 of 1978 the rent was claimed from 1-11-1976 to 31-2-1978 i. e., for 17 months at the rate of Rs 52/- per mensem amounting to Rs. 884/.-. The defendant, on the other hand, clearly pleaded in his written statement that the monthly rate of rent was Rs. 30/- per mensem. He was, therefore, liable to pay rent for the aforesaid period at the rate of Rs. 30/- per mensem amounting to Rs. 510/-. It is undisputed that on 27-7-1978 the date of hearing the defendant paid a sum of Rs. 1230/- to the lessor in cash. This amount was much more than the admitted rent due for the period including the interest at the rate of 9% per annum. It is also undisputed that the defendant lessee thereafter deposited a sum of Rs. 208/- on 7-10-1978, Rs. 208/- on 6-2-1979, Rs. 312/- on 2-8-79, Rs. 1352/,- on 4-5-1981 and Rs. 500/- on 17-5-1982. Since the order striking off the defence had been passed on 9-12-1981, the point to be seen is if the defendant lessee had committed any default in payment of the admitted rent at the time of first hearing of the suit or thereafter. It is true that the defendant did not deposit monthly rent regularly falling due during pendency of the suit but on its basis alone it cannot be said that he committed default within the meaning of Rule 5 of Order 15 CPC. At the time of first hearing he deposited rent for 41 months at the rate of Rs. 30/- per mensem whereas the arrears of rent had been claimed for 17 months only. If the balance is carried forward and the subsequent deposits are taken into account, it can be safely said that the defendant lessee had been depositing monthly amount due at the admitted rate well in advance. The learned counsel for the lessor respondent argued that the rate of rent was Rs. 52/- per mensem and if amount due is calculated at this rate he had not been paying or depositing the rent regularly. I do not find any force in this contention. Under Rule 5 of Order 15 CPC the defendent had to deposit the entire amount admitted by him to be due and had to deposit monthly amount at the admitted rate of rent during the pendency of the suit. I do not find any force in this contention. Under Rule 5 of Order 15 CPC the defendent had to deposit the entire amount admitted by him to be due and had to deposit monthly amount at the admitted rate of rent during the pendency of the suit. The defendant clearly contended that monthly rate of rent is Rs. 30/- per mensem. Thus, the amount due could not be calculated at the rate of Rs. 52/. per mensem. It is true that in the previous two suits it had been decided that the agreed rate of rent between the parties is Rs. 52/- per mensem but there is much difference between 'agreed rate of rent' and 'admitted rate of rent'. Learned Judge Small Cause Courts and learned Additional District Judge while deciding the question of striking off the defence did not keep in view this distinction and proceeded with the assumption that the rate of rent is Rs. 52/- per mensem. When the defendant was clearly pleading that the rate of rent was Rs. 30/- per mensem and nothing is due from him and he had deposited the aforesaid amounts, it could not be held that he committed default within the meaning of Rule 5 Order 15 CPC. 5. If the tenant does not admit any rent to be due then the defence cannot be struck off under this rule. In the present case also the defendant had pleaded that nothing is due from him. The Courts below realising this position did not strike off the defence on the ground that the defendant failed to deposit the amount admitted by him to be due on or before the first hearing of the suit. The striking off the defence was supported by them on the ground that during pendency of the suit he had regularly deposited the monthly amount due. As observed above, the defendant had been depositing monthly amount due at the admitted rate of rent in advance. It could not, therefore, be held that he committed breach of this rule. 6. It was argued by the learned counsel for the lessor-respondent that the defendant had not disputed para 6 of the plaint in which the amount of arrears of rent was mentioned and as such it should be inferred that the defendant admitted that the rate of rent was Rs. 52/- per mensem. 6. It was argued by the learned counsel for the lessor-respondent that the defendant had not disputed para 6 of the plaint in which the amount of arrears of rent was mentioned and as such it should be inferred that the defendant admitted that the rate of rent was Rs. 52/- per mensem. Again it may be mentioned that there is much difference between 'not disputed' and 'admitted.' Moreover para 6 did not specifically state that the rate of rent was Rs. 52/- per mensem. The defendant, on the other hand, specifically pleaded in paras 11 and 16 of the written statement that the rate of rent is Rs. 30/- per mensem and Rs. 52/- has been wrongly alleged. In view of all these facts it cannot be said that the defendant admitted that the rate of rent was Rs. 52/- per mensem. 7. An order striking off the defence under Rule 5 Order 15 CPC is in the nature of a penalty. A serious responsibility, therefore, rests on the Court in the matter and the power is not to be exercised mechanically. The use of the word 'may' in sub-rule (1) of Rule 5 shows that it reserves discretion in the Court entitling it not to strike off the defence if the facts and circumstances existing on the record make out a case for not doing so. This view gets support from the observation made in Bimal Chand Jain v. Gopal Agarwal, 1981 AWC 529. In Dr. Sadanand Tyagi v. The HI Additional District Judge Meerut, 1982 (1) ARC 265, it has been held that the defendant has to deposit the admitted rent inspite of pendency of dispute regarding it. It has also been held in this case that the rent admitted by the tenant differs from the rent asserted by the landlord. In Munnoo Lal v Babu Ram, 1982 (1) ARC 504, it was held that if defendant deposited certain amount on the first date of hearing which was more than the amount of rent to be deposited till that date, amount deposited in excess should be considered as interest and if Courts below did not consider this aspect and struck off the defence, the order is vitiated and unsustainable. The observations made in these cases clearly support the view that the amount deposited by the tenant in excess should be taken into account while deciding if any default has been committed in depositing monthly amount due and the defence should be struck off after considering all the material facts and circumstances of the case. They further go to show that even if the default had been committed, the Court is not bound to strike off the defence and it has to decide it after considering the relevant material along with the representation made by the defendant in this connection. 8. It was argued by the learned counsel for the lessor-respondent that lessee's plea of non-admission of rent was evasive and as such his defence was rightly struck off. In support of this argument, he relied upon Indra Narain Saxena v. IVth Additional District and Sessions Judge, Lucknow, 1977 ALJ 876. It has been held in this case that the question of admitted rent is purely a question of fact which has to be decided on the basis of the averments and if the plea of non-admission of rent was evasive and only a recourse to avoid mischief of Order 5 Rule 15 CPC the striking off defence is justified. The present case is distinguishable from this reported case. Here the tenant petitioner had been consistently pleading that the rate of rent is Rs. 30/- per mensem. It was also pleaded by him that nothing is due from him. It cannot, therefore, be said that an evasive defence has been put forward by the defendant and as such his defence was liable to be struck off. In Mohammad Shariff v. II Additional District Judge, Allahabad, 1980 Allahabad Rent Cases 492 it has been held that deposit of rent at enhanced rate in compliance with Section 20 (4) does not justify inference that the tenant agreed or admitted enhanced rate of rent. In Pooran Chand Gupta v. II Additional District Judge, Agra, 1984 ALJ 382, a suit for eviction on ground of default in payment of rent had been filed. The tenant deposited arrears of rent prior to the date of hearing before Judge Small Causes Court and was willing to deposit current rent of May and June on the next date in June, that was fixed. The tenant deposited arrears of rent prior to the date of hearing before Judge Small Causes Court and was willing to deposit current rent of May and June on the next date in June, that was fixed. In these circumstances it was held that it could not be said that the tenant was not effecting deposit and as such the Court should not have exercised its discretion under Order 5 Rule 15 CPC in striking off the defence. The observations made in this case show that the bonafides and conduct of the tenant should also be looked into while striking off the defence. The facts of the present case clearly show that the defendant had been depositing rent in advance and his conduct was not such as justifying striking off the defence. 9. From the above discussion it is clear that the real controversy and the legal position involved in the case had not been properly appreciated and the impugned order striking off the defence cannot be allowed to stand. 10. The writ petition is, therefore, allowed. The impugned order striking off the defence Annexure No. 9 and the judgment Annexure No. 10 decreeing the suit for eviction and the judgment in revision Annexure No. 15 are quashed. The case is remanded to the Court below to decide the case in accordance with law. In the special circumstances of the case parties to bear their own costs. Parties to appear before the trial court on 3-4-89. Petition allowed.