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2007 DIGILAW 2018 (ALL)

MAHESH KUMAR v. SHIBBO SINGH

2007-08-01

RAKESH TIWARI

body2007
RAKESH TIWARI, J. Heard learned Counsel for the parties. 2. The landlord/respondent filed S. C. C. Suit No. 6 of 1992 against the petitioner for arrears of rent and ejectment and an application under Order XV, Rule 5 C. P. C. On the ground that the tenant/petitioner is not depositing the rent regularly and therefore, his defence is liable to be struck off. 3. The tenant filed his objection dated 9-11-2004 to the application filed under Order XV, Rule 5 C. P. C. 4. The trial Court rejected the application filed by the landlord/respondent dated 7-10-2004 vide order dated 1-12- 2004. 5. Aggrieved by the aforesaid order dated 1-12-2004, the landlord filed S. C. C. Revision No. 5 of 2005 before the District Judge, Mathura, which was allowed. 6. The Revisional Court by the impugned order dated 24-5-2006 order, has set aside the order dated 1- 12-2004 passed by the trial Court and has struck off the defence of the tenant/petitioner. In the aforesaid backdrop, this writ petition has been filed. 7. Relying upon the decision rendered in Pramod Mehrotra & Ors. v. Ram Shankar Chaurasia & Anr. , 2007 (68) ALR 85, the Counsel for the petitioner submits that some cost may be imposed by the Court but striking of total defence would prejudice his case beyond repair. 8. He further submits that the petitioner wants to delay the matter as such heavy and deterrent cost should be imposed in case the Court follows the aforesaid judgment of Pramod Mehrotra case. 9. In the aforesaid case of Pramod Mehrotra (supra) it has been held that Court should be very slow in striking off defence in such matters as it is in the nature of penalty. 10. In the aforesaid case, Court further held that the trial Court has rightly exercised discretion in favour of the tenant and there is no justification for the Revisional Court to interfere with the order of the Trial Court and the order of the Revisional Court was unsustainable. 11. Setting aside the order of the Revisional Court, the tenant was directed to pay rent/damages @ Rs. 1,000 per month and further the Trial Court was directed to hear and decide the suit expeditiously preferably within the period of six months from the date of production of certified copy of the order. 12. 11. Setting aside the order of the Revisional Court, the tenant was directed to pay rent/damages @ Rs. 1,000 per month and further the Trial Court was directed to hear and decide the suit expeditiously preferably within the period of six months from the date of production of certified copy of the order. 12. In the instant case, the petitioner has taken the shop in dispute on rent @ 375 per month, but it appears that he did not deposit rent thereafter 12-7-1991. In spite of the demand, which resulted in the aforesaid proceedings of filing of suit No. 6 of 1992 and revision thereafter. 13. It appears that during the pendency of the proceedings before the Courts below, the tenant deposited rent on various dates such as 12-10-2004, 25-10-2004 and 6-11-2004 which has been urged by the tenant before the Court below. 14. The Court after considering the order XV, Rule 5 C. P. C. has given a finding that it is apparent from the various dates that respondent has committed default within the meaning of Order XV, Rule 5 (1) (2), as such, the revision is liable to be allowed. 15. He further relied upon the judgment rendered in Sudhir Kumar Agarwal v. Lala Naubat Ram Agarwal, 2006 (1) JCLR 197 (All) : 2006 (1) ARC 493, wherein it has been held that provision of Order VII, Rule 1 C. P. C. as inserted w. e. f. 1-7-2002 is rather more stringent than the provisions of Order XV, Rule 5 C. P. C. In any case, both the provisions are couched in similar mandatory from the Supreme Court while interpreting Order VIII, Rule 1 C. P. C. in its authority reported in Kailash v. Nanku, 2005 (2) JCLR 543 (SC) : (2005) 1 ARC 861, has held that even after expiry of 90 days from the date of service of summons Court has got power to take written statement on record. However, it shall be done on payment of very heavy cost. Similar principle is to be applied in cases covered by Order XV, Rule 5 C. P. C. If tenant has made repeated defaults in deposit, then he may be directed to make good the deficiency on payment of very heavy cost. In view of the above, I had directed the tenant petitioner to deposit Rs. 5,000 extra by order dated 5-10-2005. 16. In view of the above, I had directed the tenant petitioner to deposit Rs. 5,000 extra by order dated 5-10-2005. 16. After hearing the Counsel for the parties, considering the facts and circumstances and perusing the judgment, I am of the opinion that the interest of justice would be served if the respondents are directed to pay heavy and deterrent cost in the matter as it appears that he wants to linger on the dispute and further pay rent and damages for use and occupation in consonance with the law laid down in Pramod Mehrotra (supra) as well as Sudhir Kumar Agarwal (supra ). 17. Interest of justice requires, that judicious discretion should be exercised by the Courts while striking off the defence. Revisional Court had committed an error by allowing the revision of the landlord without judiciously considering the facts and circumstances of the case. 18. In view of the above, the writ petition is accordingly allowed on payment of Rs. 5,000 as cost which shall be paid by the tenant/petitioner before the Trial Court within a period of one month from today and it is further directed that during the pendency of the proceedings before the Court below, the petitioner shall pay Rs. 1,200 for damages and use of occupation of the shop month to month by 7th of each succeeding month. Petition allowed. .