JUDGMENT M.P. Singh 1. Courts should be extremely careful while exercising the powers under Order 15 rule 5 Civil Procedure Code. Mechanical exercise of this power without going into the real perspective of the case has always been discouraged by the apex court as well as this court in a number of cases, because it is penal in nature. 2. The brief facts of the case are : The petitioner is a tenant of one room accommodation no. 31/149, No. 7, Banbhoolpura, Haldwani, District Nainital. The respondent no. 3 filed a suit for ejectment and arrears of rent against the petitioner in the court of Judge Small Causes. The plaint case was that the rate of rent was Rs. 50/-per month. No rent has been paid from 1-5-1977 despite repeated requests. A notice under section 106 T. P. Act terminating the tenancy was served on the petitioner on 7-2-1980. He neither vacated the premises nor paid the arrears within the time mentioned in the notice. The petitioner's main contest was on the rate of rent. According to him, it was Rs. 30/.- and not Rs. 50/- per month. He has paid the entire amount of rent due till 30-1-1980. There was no arrears. The suit was not maintainable. During the pendency of the suit, the plaintiff filed an application under Order 15 Rule 5 CPC for striking off the defence. The petitioner filed a representation (28-C). It was filed after the expiry of 10 days of the first date of hearing. The main thrust of this case was that the defendant failed to deposit the monthly rent within a week from the date of its accrual. It has a special reference to the rent of July 1980. The Judge Small Causes Court vide its order dated 11-9-1980 passed an order striking off the defence of the petitioner. Consequently, the suit for ejectment and arrears of rent has been decreed on the same day. Since no relief of arrears of rent and damages upto the date of institution of the suit was claimed by the plaintiff the suit was dismissed for this period. Against these two orders, two revisions were filed under section 25 of the Provincial Small Causes Court Act before the learned District Judge, Nainital. Revision No. 174 of 1980 was filed by the petitioner and Revision No. 189 of 1980 was filed by the respondent no. 3. Against these two orders, two revisions were filed under section 25 of the Provincial Small Causes Court Act before the learned District Judge, Nainital. Revision No. 174 of 1980 was filed by the petitioner and Revision No. 189 of 1980 was filed by the respondent no. 3. By a common order the petitioner's revision was dismissed, while the revision filed by the plaintiff respondent no. 3 was allowed. Against this order, the present petition has been filed by the defendant. 3. Heard Sri Ashok Khare, counsel for the petitioner and Sri Rajesh Tandon, counsel for the landlady. 4. The main point to be decided in this case is whether the order striking off the petitioner's defence is sustainable or not. The Judge Small Causes Court allowed the application of the plaintiff respondent under Order 15 Rule 5 CPC by recording a finding that even if the entire amount of rent was deposited on 25-6-1980, which can be taken as the first date of hearing, the defendant has committed a default in payment of rent for the month of July 1980 which had fallen due on 1-8-1980. The rent for the months of July and August 1980 was deposited on 8-9-1980. 5. From the discussion shown in the order, it appears that the trial Judge has not recorded a finding that 25-6-1980 was not the first date of hearing and proceeded with the assumption that it was the first date but in the operative portion it was stated that : "In view of the above discussion, it is clear that the defendant had not deposited the arrears of rent admitted by him to be due on the first date of hearing and further the defendant had not deposited the rent for the month of July 1980 in accordance with the provisions of Order 15 Rule 5 (1) CPC. The defence is, therefore, liable to be struck off." 6. The revisional court while considering the matter has accepted the petitioner's case that the first date of hearing was 25-6-1980 and the petitioner had deposited rent from 1-2-1980 to 30-6-1980 on that date. The defence is, therefore, liable to be struck off." 6. The revisional court while considering the matter has accepted the petitioner's case that the first date of hearing was 25-6-1980 and the petitioner had deposited rent from 1-2-1980 to 30-6-1980 on that date. But held that the suit was rightly decreed for non compliance of the second part of Rule 5 of Order 15 inasmuch as there was a default of payment of rent for the month of July 1980 within a week from the date of its accrual on 1-8-1980 and no representation was made within the period prescribed therein. Now in order to appreciate the controversy, the provisions of Order 15 Rule 5 CPC with the background of its origin have to be gone into. 7. The legislative history of Order 15 Rule 5 CPC indicates that prior to 1972 there was no such provision in the Code. For the first time by means of the U. P. Civil Laws (Amendment) Act, 1972 this provision was introduced. It provided that unless the defendant deposited the admitted rent of compensation at or before the first date of hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U. P. Act No. 57 of 1976 and was re-enacted as follows :- "Striking off defence on failure to deposit admitted rent etc. (I) In any suit by a lessor 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 percentum 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. Explanations 1 to 3 x x x x (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. Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same." 8. This provision of the Code has been the subject matter of judicial interpretation in a series of cases of this court as well as the Supreme Court. The Supreme Court had considered the scope of Order 15 Rule 5 CPC in a very broad perspective while deciding the case Bimal Chand Jain v. Gopal Agarwal, 1981 AWC 529. In that case no representation was filed by the petitioner but there was sufficient explanation on the record for not depositing the rent within the time. While deciding the controversy in that case, it was held that :- "It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine percent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit : "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In the event of any default in making any deposit : "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence 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. In that event can it be said that sub-rule (1) obliges the court to strike off the defence ? We must remember that an order under sub-rule (1) striking off the defence is in the 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 a reserve of discretion vested in the court 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. It will always be a matter for 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 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, 1980 AWC 7J2 (supra). The word "may" in sub-rule (1) merely vests power in the court 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, 1980 AWC 7J2 (supra). The law as it emerges from the decision of the Supreme Court is that even if there is no representation by a defaulting tenant but there is sufficient material on the record before the court to indicate that there are good reasons for condoning the default the court has a reserve power to reject the application for striking off the defence or even if the application is made beyond ten days and there is sufficient explanation for the same, the court should take into consideration and exercise its own discretion judiciously. 9. The law laid down in the case of Bimal Chand Jain (supra) is a complete guideline for exercising the jurisdiction of the court. The court is always free to exercise reserve powers vested in it and to decide the question on the basis of the record. Sub-rule (2) Rule 5 Order 15 CPC gives discretion to the court to strike off defence or not. 10. In the case of Bhupendra Nath Rastogi v. Additional Civil Judge, Bijnor, 1982 ARC 480 it has been held :- "The provisions of Order XV Rule 5 CPC have not been made to enable the landlord to obtain a decree merely by default of the tenant. This has been made in order to save the landlord from unscrupulous tenant. At the end of long drawn litigation for years together a tenant may walk off with huge arrears of rent and damages and the landlord may thus suffer huge loss. If the purpose of the provision has been achieved, it is neither fair nor equitable to strike off the defence in view of the Supreme Court case, Bimal Chand Jain, (supra)." In the instant case the defendant had filed a representation but that has not been taken into consideration on the ground that it was filed after the expiry of the period as provided in Order 15 Rule 5 CPC. The court has passed a mechanical order of striking off the defence. 11. The court has passed a mechanical order of striking off the defence. 11. In view of the decision of the Supreme Court in the case of Bimal Chand Jain (supra) the impugned orders become wholly illegal. Even if there was no representation filed by the defendant the court was bound to look into the record and if there was good cause, the default could have been condoned. So far as the first date of hearing is concerned, the controversy is no more open. The court has only to consider the question whether the defendant has committed any default in paying the rent for the month of July 1980 and if so whether there was any sufficient cause for condonation. The Court can exercise its reserved discretion vested in it while considering the question of striking off the defence. 12. In the result, the writ petition succeeds and is allowed with costs. Both the orders; dated 11-9-1980, passed by the Judge Small Causes, Nainital, and the order dated 6-8-1981 passed by the 1st Addl. District Judge, are quashed. Consequently, the order of ejectment and recovery of arrears of rent passed on the same day automatically meets the same fate. The case is remanded to the Judge Small Causes Nainital, who is directed to dispose of the plaintiff's application for striking off the defence in the light of the observation made above and if he finds that there was sufficient cause for condonation, he will proceed to decide the suit on merits expeditiously as it is the suit of the year 1980. Petition allowed.