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2011 DIGILAW 261 (UTT)

RAMESH CHAND v. GOPAL DAS TANEJA

2011-04-25

B.S.VERMA

body2011
JUDGMENT Hon’ble B.S. Verma Heard learned counsel for the parties. 2. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 13.09.2006, passed by Judge Small Causes Court/Civil Judge (Sr. Div.), Udham Singh Nagar, passed in J.S.C.C. suit No. 03 of 2002 and also for quashing order dated 07.03.2007, passed by Judge Small Cause Court/District Judge, Udham Singh Nagar, in J.S.C.C. revision No. 25 of 2006 and further it is prayed to give direction to Judge Small Causes Court, Udham Singh Nagar to permit the petitioner to adduce evidence of the petitioners and to decide the case in accordance with law. 3. Learned counsel for the petitioner has informed to the Court that in terms of the interim order, passed by this Court, the petitioner was allowed to adduce evidence in defence and evidence has been filed by the petitioner/defendant by filing affidavits, concluded by the court. Now the case is fixed for cross examination of witnesses of petitioner/defendant by plaintiff/respondent. It is further submitted that the tenant has made delayed payment of the rent before the trial court. But this fact is not disputed that no representation for condoning the delay in payment of rent has been moved on behalf of the petitioner before Judge Small Causes Court. 4. Mr. M.S. Pal, Senior Advocate, assisted by Mr. Sarvesh Agarwal, counsel for petitioner, has contended that learned trial court while passing the order dated 13.09.2006, had strike off the defence of the petitioner since there was default in payment of rent. The trial court had considered the documents lists – 44C, 70C, 83C and 88C, whereby challans for payment of rent were filed. After perusal of the above documents, the trial court came to the conclusion that rent of October 2003 was paid on 11.02.2005, rent of November 2003 was paid on 16.03.2005, rent of December 2003 was paid on 11.02.2005 and rent for five months (01.01.2004 to 31.05.2005) was paid on 27.10.2004, rent for seven months (01.10.2004 to 30.04.2005) was paid on 24.05.2005, rent for two months (01.05.2005 to 30.06.2005) was paid on 13.07.2005, rent for two months (01.11.2005 to 31.12.2005) was paid on 17.03.2006, rent for three months (01.03.2006 to 31.05.2006) was paid on 22.08.2006 and rent for three months (01.06.2006 to 31.08.2006) was paid on 25.07.2006. The trial court further observed that after perusal of the challans, it reveals that the rent deposited was not paid within the stipulated period. 5. Learned Senior Advocate, Mr. M.S. Pal has further contended that no such representation for condoning the delay was made before Judge, Small Cause Court, therefore, the petitioner was not entitled to get benefit of Order 15 Rule 5 of C.P.C. and defence of the petitioner was rightly struck off and the revisional court has not committed error of law in rejecting the revision of the petitioner. 6. Learned counsel for the petitioner has submitted that explanation for delay in depositing the rent was given by way of filing an affidavit. He further contended that trial court following the ratio of judgment of Allahabad High Court, allowed application 81-C. It is further contended that the revisional court has rejected the application on the sole ground that no representation was made to condone the delay before the Judge Small Cause Court. 7. Learned counsel for the petitioner, in support of his arguments, has relied upon the judgment of the Apex Court, reported in Allahabad Rent Cases, 1981, Bimal Chand Jain Vs. Sri Gopal Agarwal. Para 6 of the said judgment is reproduced as under :- “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 interests thereon at the rate of nine per cent per annum and further, whether or not he admits 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 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 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 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 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 (supra). We are of the opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.” 8. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of the opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.” 8. Considering the facts of the case of Bimal Chand Jain (supra), in the facts of the present case, according to the petitioner he had deposited the rent admitted to him, before the court, up to 11.03.2011, therefore, the impugned orders are liable to be set aside. 9. As per version of learned counsel for the petitioner, petitioner has also filed affidavit of evidence of witnesses in terms of the interim order passed by this Court and cross-examination by the plaintiff is to be made. 10. In the facts and circumstances of the case, the impugned orders are set aside. The petitioner is directed to appear before the Judge, Small Causes Court, Udham Singh Nagar on 04.05.2011, along with the witnesses and since the suit is of the year 2002, therefore, it is directed that proceedings of the suit shall expedite, preferably within a period of six months from 04.05.2011. The parties shall co-operate in the proceedings and unnecessary adjournment shall be avoided. It is hereby clarified that so far as question regarding default in payment of rent, is concerned, trial court shall decide the suit on merit. Accordingly the writ petition is allowed.