JUDGMENT Hon’ble V.K. Shukla, J.—Petitioner who is practising Advocate has filed present writ petition for quashing of the order dated 19.8.2008 passed by Special Judge E.C. Act, Allahabad striking off defence of the petitioner in exercise of authority vested under Order XV Rule 5 of Code of Civil Procedure and further prayer has been made for deciding various applications moved on behalf of the petitioner and for framing issue in suit. 2. Brief background of the case as is reflected from the writ petition that petitioner is tenant of respondents No. 2 and 3 for the rent of Rs. 1800/- per month since October, 2001. Petitioner has stated that landlord was interested in increasing rent and to evict the petitioner, in this background he was constraint to file Suit No. 729 of 2003. Petitioner has contended that as counter blast to the said proceedings notice dated 28.11.2003 was sent terminating his tenancy. Petitioner has stated that he filed detailed reply and then Eviction suit was not filed after expiry of period of notice and inter se parties compromise was entered on 5.1.2004. Petitioner has further stated that term and condition of compromise was not respected and suit for eviction was filed being Eviction Suit No. 11 of 2004 without any cause of action. Written statement was filed on 20.4.2004. Petitioner has contended that an application under Order XV Rule 5 of Code of Civil Procedure was moved on 12.1.2005 whereas rent was duly received. Petitioner has tried to contend that lease deed was also fabricated and filed on 12.1.2005. Petitioner has contended that he objected to the said application by contending that rent was being regularly paid. Petitioner has stated that various dates were fixed in the matter and said application was not pressed as talks of compromise was going on. Petitioner has tried to contend that landlord-plaintiff No. 2 has received rent by way of cash on 8.11.2005 for month of October, 2005 up till December 2007 and prior rent and subsequent was received by him through money order and by challan. Petitioner has thereafter contended that as false affidavits have been filed, application under Section 340, Cr.P.C has also been moved and details of negotiation which took place in between to settle the matter amicably has also been mentioned. Petitioner has thereafter contended that as false affidavits have been filed, application under Section 340, Cr.P.C has also been moved and details of negotiation which took place in between to settle the matter amicably has also been mentioned. Application under Order XV Rule 5 of Code of Civil Procedure had been pressed and therein specific stand was taken that rent in question was not being paid. Petitioner gave details of entire payment. Thereafter application moved under Order XV Rule 5 of Code of Civil Procedure has been allowed, defence of petitioner has been directed to be struck off which is subject matter of challenge before this Court. 3. Sri Salil Srivastava, the petitioner, who appeared in person, contended with vehemence that in the present case provisions of Order XV Rule 5 of Code of Civil Procedure were not at all applicable as simple suit has been filed for recovery of rent, arrears of rent and damages for the use of occupation and it is not suit for eviction of a lessee by a lessor from any immoveable property after the determination of the lease as such such order could not have been passed. Coupled with this provisions of Order XV Rule 5 of Code of Civil Procedure are directory in nature and here amount in question has been paid by way of cash as such view which has been taken is totally incorrect view and unsustainable view, as such writ petition in question deserves to be allowed. 4. Sri Ravi Kant, Senior Advocate appearing for landlord on the other hand countered the said submission by contending that here suit for eviction has been filed after determination of lease and seeing the backdrop of the case it is impossible to conceive that amount in question has been paid by way of cash and no receipt had been issued in lieu of the same and admittedly there is default in making payment of monthly rent, as said amount in question has never been paid in cash, in this background discretion in question has rightly been exercised in the facts of the present case as such no interference whatsoever be made, and writ petition be dismissed. 5. 5. In order to appreciate respective arguments which have been advanced on behalf of the parties provision of Order XV Rule 5 of Code of Civil Procedure as it is applicable to the State of Uttar Pradesh is being looked into : “Order XV Rule 5 of Code of Civil Procedure : [Uttar Pradesh]—In its application of State of Uttar Pradesh add the following Rule 5 : 5. Striking off defence for failure to deposit admitted rent, etc.—(1) 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 per cent 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. Explanation 1.—The expression “first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned the last of the dates mentioned. Explanation 2.—The expression “entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor’s account *[and the amount, if any paid to the lessor acknowledged by the lessor in writing signed by him] and the amount, if any, deposited in any Court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.—(1) The expression “monthly amount due” means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor’s account. (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 to 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 the security for such sum before he is allowed to withdraw the same.” 6. A perusal of the aforesaid provision of Order XV Rule 5 of the Code of Civil Procedure shows that the said provision is applicable to any suit filed by a lessor for eviction of a lessee from an immoveable property after determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during continuance of the lease or of compensation for the use and occupation thereof after the determination of the lease. 7. The aforesaid provision of Order XV Rule 5(1) of the Code of Civil Procedure shows that there are two parts in the said provision : (A) On or before the first hearing of the suit, the defendant shall deposit the entire amount admitted by him to be due together with interest at the rate of 9% per month. The meaning of the expression “first hearing” has been given in Explanation 1 to sub-rule (1) of Order XV Rule 5 of the Code of Civil Procedure. Accordingly the “first hearing” means the date for filing of the written statement or for hearing mentioned in the summons. In case more than one of such dates are mentioned, “first hearing” will be the last of the dates mentioned. Accordingly the “first hearing” means the date for filing of the written statement or for hearing mentioned in the summons. In case more than one of such dates are mentioned, “first hearing” will be the last of the dates mentioned. The meaning of the expression “entire amount admitted by him to be due” has been given in Explanation 2 of sub-rule (1) of Order XV Rule 5(1) of the Code of Civil Procedure. Accordingly the “entire amount admitted by him to be due” means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the following : (i) The taxes, if any, paid to a local authority in respect of the building on lessor’s account. (ii) The amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him. (iii) The amount, if any, deposited in any Court under Section 30 of the U.P. Act No. XIII of 1972. (B) Whether or not the defendant admits any amount to be due, he shall throughout the continuance of the suit deposit regularly the monthly amount due within a week from the date of its accrual. 8. The meaning of the expression “monthly amount due” has been given in Explanation 3 to sub-rule (1) of Order XV Rule 5 of the Code of Civil Procedure. Accordingly “monthly amount due” means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any paid to a local authority in respect of the building on lessor’s account. 9. It will, thus, be seen that the first part of the Order XV Rule 5 (1) of the Code of Civil Procedure, namely the head (A) above deals with the deposit of arrears of rent/compensation due from the defendant with interest thereon provided such arrears are admitted by the defendant to be due from him. On the other hand, the second part of the said provision namely head (B) above deals with the monthly deposit of rent/compensation at the admitted rate of rent to be made by the defendant throughout the continuance of the suit irrespective of the fact whether the dependant admits any amount to be due from him or not. On the other hand, the second part of the said provision namely head (B) above deals with the monthly deposit of rent/compensation at the admitted rate of rent to be made by the defendant throughout the continuance of the suit irrespective of the fact whether the dependant admits any amount to be due from him or not. 10. In case, the defendant fails to comply with any of the aforesaid two parts of Order XV Rule 5 (1) of the Code of Civil Procedure the Court may strike off the defence of the defendant. However, the provision for striking off the defence under sub-rule (1) of Order XV Rule 5 of the Code of Civil Procedure is subject to sub-rule (2) of the said provision. According to sub-rule (2) Order XV Rule 5 of the Code of Civil Procedure, before making an order for striking off the defence, the Court may consider any representation made by the defendant in that behalf. Such representation is required to be made within 10 days of the first hearing where the aforesaid first part, namely head (A) is applicable. In case the aforesaid second part namely head (B) above is applicable, such representation is required to be made within 10 days of the expiry of a week referred to in sub-rule (1) of Order XV Rule 5 of the Code of Civil Procedure that is within 10 days the expiry of a week from the date of accrual of the “monthly amount due”. 11. At this juncture Section 17 of Provincial Small Cause Courts Act, 1887 is also being looked into : “Section 17. 11. At this juncture Section 17 of Provincial Small Cause Courts Act, 1887 is also being looked into : “Section 17. Application of the Code of Civil Procedure.—(1) [The procedure prescribed in the Code of Civil Procedure, 1908 (5 of 1908) shall save in so far as is otherwise provided by the Code or by this Act,] be the procedure followed in a Court of Small Causes, in all suits cognizable by it and in all proceedings arising out of such suits : Provided that an applicant for an order to set aside a decree passed ex-parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf have directed. (2) Where a person has become liable as surety under the provision to sub-section (1) the security may be realised in manner provided by Section [145] of the Code of Civil Procedure, [1908] (5 of 1908).” 12. A bare perusal of provision quoted above would go to show that the procedure prescribed in the Code of Civil Procedure, 1908 shall save in so far as is otherwise provided by the Code or by this Act be the procedure followed by Judge Small Causes in all suits cognizable by it and in all procedures arising out of such suits. The jurisdiction which Small Causes Court exercises is the same as the jurisdiction of Civil Court except that only specified suits of civil nature are to be tried by it. 13. As to whether provisions of Order XV Rule 5 are attracted in the facts of the case is being adverted to, as it has been contended that said provisions are not at all attracted. 14. Full Bench of this Court in the case of Smt. Chandra Rani and others v. Vikram Singh and others, 1979 All LJ 401 (406, 407) has taken the view that Rule is applicable to a suit for ejectment etc. instituted or pending in Courts constituted under Provincial Small Cause Courts Act or Courts exercising similar jurisdiction even after commencement of Central Act 104 of 1976. instituted or pending in Courts constituted under Provincial Small Cause Courts Act or Courts exercising similar jurisdiction even after commencement of Central Act 104 of 1976. Relevant paragraphs 85, 89 and 91 are being extracted below : “85. It would be noticed that when Central Act 104 of 1976 had come into force R. 5 of O. XV was not on the Statute Book. The amended R. 5 came into existence after U.P. Act 57 of 1976 was enacted. The Parliament, therefore, could not have by providing that O. XV will not apply to Small Cause Courts, meant that R. 5, which did not exist at that time would also not apply to Courts constituted under the Provincial Small Cause Courts Act O. XV as mentioned in Act 104 of 1976, could not include the provisions not in existence. It was however, sought to be argued by the learned Counsel for the applicants that since OLR 1 (b) provides that O. XV will not apply, the whole of the provisions of O. XV whether amended before or afterwards, would be deemed to be inapplicable to the Courts constituted under the Provincial Small Cause Courts Act. The submission made appears to be unfounded. 89. Apart from the above it may further be pointed out that by U.P. Act XXXVII of 1972 all suits between landlords and tenants have become cognizable by a Court of Small Causes. Rule 5 of O. XV is a provision requiring lessee to deposit rent in the manner prescribed in that provision. The consequence of not making a deposit in accordance with R. 5 of O. XV is that defence of such a lessee can be struck off. This amendment was made with a view to make it applicable to all suits filed for ejectment by a lessor against a lessee. As stated above by U.P. Act XIII of 1972 all suits of the above nature have become cognizable by a Judge of Small Causes. If the argument of the learned Counsel for the applicant is accepted the result would be that the provision of R. 5 O. XV would become otiose. This could never be intended by the legislature. The intention obviously was that the provisions of R. 5 of O. XV should apply to the suits which may be filed or were pending before the Courts constituted under the Provincial Small Cause Courts Act. This could never be intended by the legislature. The intention obviously was that the provisions of R. 5 of O. XV should apply to the suits which may be filed or were pending before the Courts constituted under the Provincial Small Cause Courts Act. The duty of a Court is not to put an interpretation of a provision which may defeat the purpose of an enactment. I, therefore, find no substance in the submission of the learned Counsel for the applicant. 91. For the reasons given above I answer both the questions in the negative, and hold that neither Rule 5 of O. XV amended by U.P. Civil Law (Amendment) Act, 1972 nor Rule 5 of O. XV substituted by S. 7 of U.P. Civil Law (Reforms and Amendment) Act, 1976 is inconsistent with the provisions of the Principal Act as amended by the Central Civil Procedure Code (Amendment) Act, 1976. It is also held that Section 97 (1) and (3) of the Central Civil Procedure Code (Amendment) Act 1976 are not retrospective and orders striking off the defence before 1-2.1977 are not liable to be set aside.” 15. This Full Bench judgment has been approved by Hon’ble Apex Court in the case of Pt. Rishikesh v. Salma Begum, 1995 ALJ 1336. 16. Learned Counsel for the petitioner has placed reliance on the judgment of this Court in the case of M/s Ghaziabad Leather Board Mfg. Co. and others v. Ravindra Prakash, 1979 All LJ 450 for the proposition that provisions of Order XV Rule 5 are not applicable in the case wherein simple suit for recovery of arrears of rent and eviction is claimed or damages for the use of accommodation is claimed. Relevant paragraphs 5 and 7 of the aforesaid judgment are being extracted below : “5. On a reading of Rule 5 in a natural manner, it would transpire that the basic character of the suit to which the said rule may be said to apply, has to be one for eviction of a lessee by a lessor from any immoveable property after the determination of the lease of the lessee. Such a suit can be coupled with the prayer for a relief for recovery of arrears of rent and/or of damages for use and occupation for the period subsequent to the determination of the lease. Such a suit can be coupled with the prayer for a relief for recovery of arrears of rent and/or of damages for use and occupation for the period subsequent to the determination of the lease. A simple suit for recovery of amounts claimed to be in arrears as rent or as damages for use and occupation of the premises demised to the lessee by the lessor is not contemplated to be covered by the said rule. 7. Since as held above, Rule 5 of Order XV, C.P.C. will not apply to a suit of the kind out of which the present revision arises. It is clear that learned trial Judge was in error in striking out the defence of the applicants. The direction to proceed ex-parte against the applicants was plainly without jurisdiction.” 17. This Court in the case of Abhinandan Kumar Jain v. 4th Additional District Judge and another, AIR 1980 All 347 has taken the view that in order to find out whether or not this rule is applicable what is necessary to find out is as to whether suit has actually been filed after determination of lease that is whether the plaintiff landlord has complied with the provisions of Section 20 of the U.P. Act No. 13 of 1972 before bringing a suit for eviction and for recovery of arrears of rent. For this purpose, it is the allegation made in the plaint which alone would be relevant. Relevant paragraphs 3, 4, 5 and 6 are being extracted below : “3. Counsel for the petitioner, while elaborating his submission, urged that the provisions contained in the unamended R.5 of O. XV, C.P.C. did pertain to procedure alone, but also conferred substantive rights on the petitioner and as such in the absence of any express or implied provision the substituted rule could not be applied to a pending suit. To me it appears that the said R. 5 of O. XV, C.P.C. did not confer any substantive right on the petitioner. On the other hand, it only placed him under an obligation in a suit of the nature referred to in the said rule, inter alia, to regularly deposit the monthly amount due and on his failure to do so he was to suffer the liability of having his defence struck off. On the other hand, it only placed him under an obligation in a suit of the nature referred to in the said rule, inter alia, to regularly deposit the monthly amount due and on his failure to do so he was to suffer the liability of having his defence struck off. This was purely a matter regulating the procedure in regard to the maintainability of the defence in a suit of the nature referred to in the said rule. If at all any element of right is to be culled out from the said rule it may be said that on the tenant’s failure to comply with the requirements of O. XV, R. 5, C.P.C. the landlord had a right to have the defence of the tenant struck off. Order XV, R. 5, C.P.C. as has been substituted by U.P. Act No. 57 of 1976, does not in any way affect that right of the landlord in any adverse manner. Indeed it purports to safeguard that right more effectively. It would further be seen that in the matter of depositing regularly the monthly rent due during the continuance of the suit the question of finding out the true import of the term ‘first date of hearing occurring in O. XV, R. 5, C.P.C. does not arise. It is true that under the unamended rule no time had been fixed for depositing the monthly rent whereas after its amendment a week’s time from the date of its becoming due has been fixed but that in my opinion, does not make any difference. Even in the absence of a time limit a reasonable time is always the requirement and in the matter of depositing regularly the monthly rent a week’s time from the date of its becoming due would be a reasonable time. As such what was otherwise necessarily implied in O. XV, R. 5, C.P.C. has been made express. It appears that notwithstanding the intention of the framers of R. 5, O. XV, C.P.C. that in a suit of the nature referred to therein the monthly rent payable to the landlord should be deposited by the tenant regularly during the continuation of the suit so as to safeguard the interest of the landlord, the said rule was being misused as there was no time fixed in the unamended rule for making such deposit. It is to obviate this misuse that it seems to have been provided in the substituted R.5 that the monthly rent due has to be deposited within a week of the date of its accrual. For the same reason it was also provided that a representation in this behalf is to be considered only if it is made within ten days of the accrual of the monthly rent. In this view of the matter I am of opinion that such monthly rent which became due after the commencement of U.P. Act No. 57 of 1975 had to be deposited by the defendant to a suit of the nature referred to in Order XV, Rule 5, C.P.C. in the manner provided for by the said rule as it stood amended by U.P. Act No. 57 of 1976, namely, within a week of its becoming due and in case of failure by the defendant in making such deposit his defence was to be struck off unless the default was condoned by the Court on a representation made by the defendant within ten days of the rent becoming due. I accordingly find no substance in the submission made by Counsel for the petitioner that respondent No. 1 committed an error in applying Order XV, Rule 5, C.P.C. as substituted by U.P. Act No. 57 of 1976 to the facts of the instant case. 4. It was then urged by Counsel for the petitioner that Order XV, Rule 5, C.P.C. applied only to a suit for eviction of a lessee filed after the determination of his lease. Relying on certain observations made by the Supreme Court in V. Dhanpal Chettiar v. Yesodai Ammal ( AIR 1979 SC 1745 ), it was urged that it was not necessary for the landlord to determine the tenancy of his tenant before filing a suit for ejectment on any of the grounds mentioned in Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as “U.P. Act XIII of 1972”). As such, the present suit could not be treated as a suit for eviction having been filed against the petitioner “after the determination of his lease” as contemplated by Order XV, Rule 5, C.P.C. notwithstanding the fact that the suit had actually been filed after the determination of the lease of the petitioner inasmuch as the determination of such lease was unnecessary. 5. V. Dhanpal Chettiar’s case (supra) was not a case of a suit for ejectment having been filed by the landlord but a case in which an application had been made by him under Section 10(3)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for eviction of the tenant on the ground of personal necessity. I find it unnecessary to consider the submission made by Counsel for the petitioner on the basis of that case that determination of tenancy was not necessary even for filing a suit for ejectment inasmuch as in view of the clear language of Sections 20 and 21 of U.P. Act No. XIII of 1972 it is apparent that even though determination of tenancy is not necessary for making an application by the landlord for release of an accommodation on the ground that he needed it for his own use under Section 21 of the Act it was necessary if a suit for ejectment was filed on a ground mentioned in Section 20 thereof. Sub-section (4) of Section 21 provides that an application for release can be made even if tenancy has not been determined. Further on such an application being allowed, the tenancy stands determined by operation of law on the expiration of a period of thirty days from the date of such order as contemplated by sub-section (6) thereof. As such, if eviction of a tenant is applied for under section 21, determination of his tenancy would certainly not be needed. Further on such an application being allowed, the tenancy stands determined by operation of law on the expiration of a period of thirty days from the date of such order as contemplated by sub-section (6) thereof. As such, if eviction of a tenant is applied for under section 21, determination of his tenancy would certainly not be needed. Sub-Section (2) of Section 20 of U.P. Act No. XIII of 1972, on the other hand, reads; “A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds namely; ............” (Emphasis supplied) Sub-section (1) of Section 20 of this Act inter alia contemplates : Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner; .................” Sub-sections (1) and (2) of Section 20 read together make it clear that a suit for eviction of a tenant cannot be filed unless (1) the tenancy has been determined and (2) any of the grounds mentioned in sub-section (2) is available. 6. I am not inclined to accept the aforesaid submission for another reason. In order to find out whether Order XV, Rule 5, C.P.C. is applicable or not, what is, in my opinion, necessary to find out is as to whether the suit has actually been filed after the determination of the lease of the tenant and for this purpose it is the allegation made in the plaint which alone would be relevant. It has not been disputed that in the instant case the suit had actually been instituted by respondent No. 2. against the petitioner “after the determination of his lease.” 18. Here in the present case from the own showing of the petitioner notice was given terminating tenancy on the expiry of period mentioned in the notice and said notice was duly replied by the petitioner on 9.12.2003 and thereafter suit for eviction was filed on 9.3.2004. Thus suit in question has been filed in compliance of the provision as contained in Section 20 of U.P. Act No. 13 of 1972. Thus suit in question has been filed in compliance of the provision as contained in Section 20 of U.P. Act No. 13 of 1972. Consequently in the facts of the present case the arguments advanced on behalf of the petitioner that Order XV Rule 5 are not applicable to the case of the petitioner is of no consequence and said judgment cited by petitioner will not at all come to the rescue of the petitioner for the simple reason that in the said judgment itself mention has been made that said provision would not be applicable and would not cover the case where simple prayer for arrears of rent and damages for use and occupation of premises. Clear cut distinction has been made, in the said judgment itself in para-6 that without there being a prayer for relief of eviction of the lessee from the suit premises, simple suit for arrears and rent will not fall within the scope and ambit of Rule. Here suit is for ejectment and rent both as such provision of Order XV Rule 5 are fully attracted. 19. The next question to be adverted to, is as to whether order striking off defence of petitioner is justifiable order, or totally unjustifiable order and arbitrary exercise of discretion conferred on Court under the provisions of Order XV Rule 5. 20. Provision of Order XV Rule 5, referred to above has been subject matter of judicial interpretation before Apex Court and this Court, and view has been taken that serious responsibility rests on Court in deciding the said matter and power is not to be exercised mechanically. 21. Hon’ble Apex Court in the case of Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 has taken the view that even in the matter wherein admitted rent has not been deposited and further representation has not been made Court still has discretion not to strike off defence if on facts and circumstances already existing on record there is good reason for not doing so. Relevant paragraph-6 of the aforesaid judgment is being extracted below : “6. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Relevant paragraph-6 of the aforesaid judgment is being extracted below : “6. 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 per cent 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 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. 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 the 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 (1981 All LJ 82) (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.” 22. Hon’ble Apex Court in the case of Kunwar Baldevji v. XIth Additional District Judge, Bulandshahr and others, 2003 (3) AWC 2504 has taken the view that language of Order XV Rule 5 is clear and unambiguous and there is no scope for doing violence to it and stretch it to mean rent found by Court to be due. Present case falls within the second category, whether or not he admits any amount to be due to deposit regularly throughout the continuation of suit, the monthly amount due. Relevant paragraphs 11, 12 and 17 are being extracted below : “11. Having considered the aforesaid decisions, we find that the language of Order XV, Rule 5 Code of Civil Procedure is unambiguous, clear and there is no scope of doing violence with it and stretch it to mean that expression “rent admitted by the tenant to be due” should mean rent found by the Court to be due ………..” Question of interpretation of a statutory provision arises only when it is ambiguous or admits two interpretations or it is required to save the provision from being declared void. No such contingency exist in the present case. 12. If amount of rent is admitted then it is not required to be adjudicated by the Court. No such contingency exist in the present case. 12. If amount of rent is admitted then it is not required to be adjudicated by the Court. In case tenant denies any rent to be due Court shall be required to decide the same. It is obvious that in such contingency, Court will have to adjudicate its finding will come subsequent to the first date of hearing contemplated under Order XV Rule 5, Code of Civil Procedure. It is therefore, evident that by the time the Court will render its finding, first date of hearing- which is cut off date for depositing rent shall be over. It also requires no comment that such an issue is first to be framed and thereafter adjudicated after parties have led evidence in accordance with law. 17. Our answer to the question referred to us is that Order XV Rule 5 Code of Civil Procedure does not contemplate that when Court decides the question of liability or payment of rent in future, the same should be treated as the admitted rent due within the meaning of the expression contained under Order XV, Rule 5 Code of Civil Procedure.” 23. This Court in the case of Ram Kumar Singh v. IInd Additional District Judge, 2003 ALJ 1472, has taken the view that compliance of Order XV Rule 5 is to be ensured by the defendant throughout the continuance of suit. Paragraphs 16 and 17 are being extracted below : "16. I have considered the submission made by the learned Counsel for the petitioner, and I find myself unable to accept the same. As noted above, the second part of Order XV Rule 5 (1) of the Code of Civil Procedure provides that whether or not the defendant admits any amount to be due, he must regularly deposit throughout the continuance of the suit the monthly amount due within a period of one week from the date of its accrual. Therefore, this provision shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus, evident that the defendant is bound to ensure compliance of the provision of Order XV, Rule 5(1) of the Code of Civil Procedure throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus, evident that the defendant is bound to ensure compliance of the provision of Order XV, Rule 5(1) of the Code of Civil Procedure throughout the continuance of the suit. In the event of any default by the defendant in compliance with the provisions of Order XV Rule 5(1) of the Code of Civil Procedure, the defence of the defendant may be struck off by the Court as the monthly deposit is required to be made throughout the continuance of suit. It is open to the Court to strike off the defence of the defendant at any stage during the continuance of suit, in case there is failure on the part of the defendant in compliance with the provisions of Order XV Rule 5 (1) of the Code of Civil Procedure. The defence of the defendant can therefore, be struck-off at any stage during the continuance of the suit. Secondly, it is for the Court to decide as to at what point of time it would consider the question as to whether the defence of the defendant is to be struck-off on account of non-compliance with the provision of Order XV Rule 5 (1) of the Code of Civil Procedure. Even though an application is filed by the plaintiff for striking-off the defence of the defendant on account of non-compliance with the provisions of Order XV Rule 5 (1) of the Code of Civil Procedure, it is for the Court to decide as to at what point of time such application of the plaintiff would be considered. The Court may in its discretion decide that the question or issue regarding the striking off the defence of the defendant on account of non-compliance with the provision of Order XV Rule 5 of the Code of Civil Procedure, would be decided alongwith other issues framed in the suit after the evidence of the parties is recorded. In case, the Court adopts such procedure, it cannot, in my opinion be said that the Court has acted in any illegal manner. 17. In case, the Court adopts such procedure, it cannot, in my opinion be said that the Court has acted in any illegal manner. 17. Once, it is accepted that the compliance with Order XV, Rule 5 of the Code of Civil Procedure is to be ensured by the defendant throughout the continuance of suit and the defence of the defendant can be struck off even after the closure of the evidence, it evidently shows that the Court may in its discretion decide as to at what stage or what point of time, it would consider the question regarding the striking-off the defence of the defendant on account of non-compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure.” 24. On the touchstone of provisions and parameters as set out by judicial pronouncement, it is clearly reflected that the provisions of Order XV Rule 5, CPC would show that it consists of two parts. The first part deals with the requirement of deposit of rent on or before the first date of hearing. Under this part the tenant is liable to deposit the entire arrears of rent admitted to be due on the date of first hearing alongwith nine percent interest thereon. If the tenant makes compliance of this, he is exonerated from the penalty of striking off his defence is liable to be struck off subject to the provisions of sub-rule (2). The second part postulates that whether or not the tenant admits any amount to be due he shall throughout the continuation of the suit regularly deposit the monthly amount within a week from the dates of its accrual and in the event of any default in making such deposit, the Court may, subject to the provisions of sub-rule (2), strike off his defence. It is thus clear that under the first part the tenant is obliged only to deposit that much of arrears of rent alongwith interest which is admitted by him to be due whereas under the later part the tenant is required to deposit the monthly amount regularly within a week from the date of its accrual, irrespective of the fact whether or not he admits the said amount to be due. The power to strike off defence under sub-rule (1) is however subject to sub-rule (2) which requires the Court, before making an order of striking off defence, to consider representation, if any, made by the defendant in that behalf within ten days of the first hearing or of the expiry of one week referred to in sub-rule (1), as the case may be. In other words if a representation is made by the tenant within ten days of the date of first hearing in respect of the deposit of arrears of rent and interest thereon, the Court shall not make an order of striking off the defence without considering the said representation. Similarly the expression ‘within ten days of the expiry of the week referred to in sub-rule (2)’ pertains to the second part of sub-rule (1) of Rule 5 Order XV, CPC and the Court is under a statutory obligation to consider the representation if any made by the tenant in that behalf. Decision has to be taken objectively on the basis of material on record already in existence, and the explanation set out in the representation if any. 25. Now facts of the present case are being adverted to, as to whether in the present case defence has rightly been struck off or not and view which has been taken is reasonable view or not. 26. Factual position which has emerged in the present case is that suit for eviction was filed on 9.3.2004 as per own case of the petitioner he had paid rent for June 2004 by money order on 19.7.2004 for July 2004, on 10.8.2008, August, 2004 on 10.9.2004; September 2004 on 9.10.2004; October, 2004 on 10.11.2004; November, 2004 on 9.12.2004; December, 2004 on 6.10.2005, January, 2005 on 11.2.2005; February, 2005 on 16.3.2005; March, 2005 on 13.4.2004; April, 2005 on 11.5.2005, May, 2005 on 13.6.2005; June 2005 on 11.7.2005; July, 2005 on 11.8.2005; August, 2005 on 13.9.2005 September, 2005 on 13.10.2005 and thereafter from the own showing of the petitioner, petitioners case is that he has paid rent for the month of October, 2005 to the landlord by cash on 8.11.2005 up to December 2007 on 2.1.2008 and thereafter for the period from January, 2008 to May 2008 after the orders were passed on 3.5.2008 he has paid Rs. 10,000/- and thereafter for June 2008 and July 2008 by way of Challan. 27. 10,000/- and thereafter for June 2008 and July 2008 by way of Challan. 27. Much emphasis has been laid by the petitioner on the fact that said amount was accepted by cash and during said period compromise talks was on going and for this purpose applications were moved on behalf of landlord w.e.f. 8.11.2005. It is true that record in question reflects that talks were on going for compromise but it is also equally true that for the period starting w.e.f. 8.11.2005 up till December, 2007 except for bald statement of fact made by the tenant, there is nothing to show and substantiate that said amount in question has been paid at any point of time to the landlord. Once mandate of law is that tenant is required to deposit monthly rent during continuance of suit and here in the present case landlord has categorically denied having received any rent whatsoever then provisions of Order XV Rule 5 would come into play, and this is what exactly Court below has done while passing order after taking into account the explanation submitted by petitioner. Case which has been set up by the petitioner for regular deposit of monthly rent has been found to be totally untruthful and without any foundation and basis as there is no material on record to suggest that by way of cash rent has been paid by the petitioner for said period. On earlier dates payments have been made by money order and thereafter deposit has been made in the Court and it is practically impossible to conceive that rent was being paid by cash, but receipt was not being insisted upon. 28. Petitioner is an advocate, well aware with the technicalities and niceties of the law and record reflects that he is perfectionist in maintaining record, page 24 pages 53 to 57 and other records and how he failed to obtain receipt in lieu of making payment in cash, cannot be conceived of in the facts of present case from the point of view of a reasonable and prudent man. Theory set up by petitioner does not stand to any logic. Theory set up by petitioner does not stand to any logic. Facts and circumstances which are existing on record clearly shows that provisions of Order XV Rule 5 of Code of Civil Procedure has not at all been complied with and as petitioner has been insisting that he had made deposit and there was no material in support of the same except for his statement of fact as such Court below has rightly proceeded to pass order of striking off defence in view of such attitude of the petitioner. It is true that provisions of Order XV Rule 5 of Code of Civil Procedure is directory in nature and attempt and endeavour of Court below should not be shut of the defence of tenant but in case plea which has been set up by tenant is found to be totally untruthful and without there being any material in support of the same, no reprieve can be accorded to petitioner and in such a case discretion could not have been exercised in favour of petitioner. Order striking off defence warrants no interference. 29. Qua the other relief which has been claimed by the petitioner, it is hereby directed that trial Court shall proceed to deal with the matter in accordance with law and also decide the application moved on behalf of the petitioner under Section 340, Cr.P.C. and under Section 30 of Code of Civil Procedure preferably within next three months from the date of presentation of certified copy of this order. 30. Subject of aforementioned directions writ petition is dismissed. ————