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1999 DIGILAW 600 (PAT)

Vijay Kumar v. Shambhu Nath Prasad

1999-07-16

S.K.KATRIAR

body1999
ORDER Head Mr. Vindhyachal Singh for the petitioner and Mr. Uday Shanker Sharan Singh for the opposite party. 2. The petitioner is the defendant in a suit for eviction. This civil revision application is directed against the order dated 14.9.98 passed by the learned Munsif 1st, Hajipur, in Eviction suit no. 6/97 (Shambhu Prasad vs. Vijay Kumar) whereby the petitioner's defence has been struck off within the meaning of section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 on account of delay in deposit of rent for the month of May 1998. 3. The trial court by its order dated 16.4.98 directed the defendant to pay current rent of each previous month by the first week of next month. The defendant defaulted in payment of rent of May 1998. The defendant had remitted per money order the rent for the month of May 1998 and June 1998 together on 6.7.98. Rent of May 1998 ought to have been remitted by the first week of June 1998. There was thus delay of exactly one month in remitting the rent for May 1998. Thereafter the plaintiff filed an application dated 2.7.98 to strike off the defence of the defendant in terms of section 15 of the B.B.C. Act. That application has been allowed by the impugned order on the ground that the defendant has failed to establish sufficient cause to the satisfaction of the trial court in regard to delay in remitting the rent for the month of May 1998. 4. While assailing the validity of the impugned order, the learned counsel for the petitioner submitted that it has been held by the Supreme Court in its judgment reported in AIR 1989 SC 291 (Manmohan Kaur vs. Surya Kant Bhagwani) that the provisions under the Act regarding striking off the defence cannot be taken to be mandatory provision of law. The court should consider whether the delay in deposit of rent has been reasonably explained or not. In construing that question the court in the scheme of administration of justice must take a constructive and purpose oriented approach. If it does, then the element of discretion comes into play though not in the form of directory or mandatory provision but in considering whether the delay was properly explained or not. In construing that question the court in the scheme of administration of justice must take a constructive and purpose oriented approach. If it does, then the element of discretion comes into play though not in the form of directory or mandatory provision but in considering whether the delay was properly explained or not. Thus if the delay is explained then there is no delay and the court in such a case can strike off the defence, if, on the other hand, delay is not explained or the explanation is one which is not acceptable, then the court must strike out the defence and there is no discretion. 5. He next submitted that there was delay of merely one month in remitting the rent for May 1988 which is a marginal delay and the bona fides of the petitioner is clearly established by the fact that it was promptly remitted along with the rent for the month of June 1998. In his submission such small delay in deposit of rent for bona fide reasons should not be taken so strictly against the defendant as has been done by the trial court. The trial court has erred in refusing to accept the sufficiency of cause shown by the defendant. He clearly stated before the trial court that he was ill during the period in question and was hospitalized. He further submits that this part of the defendant's case was not opposed by the plaintiff before the trial court that he was ill during the period in question and was hospitalized. The contention of the defendant will be deemed to have been admitted on account of non-opposition on the part of the plaintiff in such circumstances, in his submission, the learned trial court has erred in exercise of its discretion. He has in this connection relied on reported judgments of the Supreme Court reported in AIR 1989 SC 291 = 1988(4) SCC 698 , & AIR 1985 SC 964 = 1985 (3) SCC 53 wherein the trial court and the High Court had refused to accept the defendant's plea of delayed payment of rent. Overruling the views of the High Court, the Supreme Court held that mere delay of two months for bona fide reasons was clearly explained in the facts and circumstances of that case. 6. Overruling the views of the High Court, the Supreme Court held that mere delay of two months for bona fide reasons was clearly explained in the facts and circumstances of that case. 6. Learned counsel for opposite party has submitted that the trial court has considered the materials placed before it in this connection and exercised its jurisdiction and, therefore, there is nothing for this court in its civil revisional jurisdiction to interfere with the impugned order. 7. Having considered the rival submissions, this court is of the view that this civil revision application has to be allowed. The Supreme Court has clearly laid down that there is an element of discretion with the trial court in condoning the delay in deposit of current rent. If the trial court is convinced then the defence need not be struck off. Secondly the learned counsel for the petitioner is right in his submission that it was after all a bona fide default in deposit of rent which is clearly established by the fact that he remitted the rent for the month of May 1998 along with the rent for June 1998. The delay after all was of only one month, and with respect to the rent of only one month. He is right in his submission that the plaintiff had not filed any rejoinder contesting the ground of illness set up by the defendant. In such circumstances, the impugned order has to be set aside. The delay in deposit of rent for May 1998 is condoned. 8. In the result, this civil revision application is allowed and the impugned order dated 14.9.98 passed by the learned Munsif 1st, Hajipur, in Eviction suit no. 6/97 (Shambhu Prasad vs. Vijay Kumar) is hereby set aside.