Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2891 (ALL)

Nasruddin v. Manjoo Rani Agarwal and Others

2012-12-13

RAJES KUMAR

body2012
Rajes Kumar, J.— Heard Sri Shahid Masun, learned counsel for the petitioner and Sri Shubham Agarwal, learned counsel appearing on behalf of the respondents. 2. By means of the present writ petition, the petitioner is challenging the order dated 08.04.2011 passed by Judge Small Causes Court, by which he has struck off the defence of the petitioner under Order 15 Rule 5 C.P.C. and further the order dated 16.10.2012 passed by the revisional court rejecting the revision of the petitioner. 3. The petitioner is a tenant and was required to deposit the rent during the continuance of the suit within a week from the date of its accrual under Order 15 Rule 5. Order 15 Rule 5 provides that in case of any default in making the deposit, the Court may, subject to the provisions of sub-rule (2) strike off his defence. Sub-rule (2) says that before making an order for striking off defence, the Court may consider any representation by the defendant in that behalf provided such representation is made within ten days of the first hearing or, of the expiry of the week referred to in sub-section (1) as the case may be. Trial court found that the petitioner has not deposited the rent from the period of January, 2010 within the stipulated period and has struck off the defence of the petitioner. The revisional court observed that for the deposit of the rent for the month of January, 2010 an application was submitted on 15.02.2012. However, the order was not immediately passed and the same was passed on 12.07.2010 and the petitioner deposited the amount on the same date. Therefore, there was no default. Revisional court however, held that the rent for the period 01.04.2010 to 31.08.2010 has been deposited on 14.07.2010 and further for the month of September, tender was placed on 24.1.2010 and for the deposit of the rent for the period 01.01.2010 to 03.04.2011 it is not clear that when the tender was submitted and the deposit of rent from January 2011 is not clear. The petitioner pleaded that for the deposit of rent for the period 01.04.2010 to 31.08.2010 the petitioner has submitted the tender on 15.02.2010 along with application, 11-C but the petitioner failed to substantiate his case. Admittedly, the amount was deposited on 14.07.2010. Further there is clear default in depositing the rent from the month of September. The petitioner pleaded that for the deposit of rent for the period 01.04.2010 to 31.08.2010 the petitioner has submitted the tender on 15.02.2010 along with application, 11-C but the petitioner failed to substantiate his case. Admittedly, the amount was deposited on 14.07.2010. Further there is clear default in depositing the rent from the month of September. Admittedly, tender was placed on 24.11.2010. No explanation has been given before the revisional authority about the late deposit of the amount. 4. Learned counsel for the petitioner submitted that amount of rent has been deposited within time and further in future also the rent has been deposited in advance. He submitted that rent for the disputed period has been given to the local counsel but the same has not been deposited by him and for no fault of the petitioner, he should not be punished. Reliance is placed on decision of this Court in the case of Atma Ram Vs. District Judge, Dehradun & Ors., reported in 1999(1) JCLR, 736 (All) and Sudhir Kumar Gupta s. Dr. S.K.Raj and another, reported in 1998 (1) ARC, 545. 5. Learned counsel for the respondent submitted that Order 15 Rule 5 is mandatory and has to be strictly complied with as held by the Division Bench of this Court in the case of Haider Abbas Vs. Additional District Judge, Allahabad and others, reported in 2006 (62) ALR, 552, which has been followed by the learned Single Judge in the case of Smt. Saroj Tripathi and another Vs. Guru Prasad and others, reported in 2012(9)) ALR, 136. He further submitted that the petitioner in the chart given the details of the deposit, which is annexure-2 to the writ petition, has not given the details of the deposit. 6. I have considered the rival submissions. 7. The Division Bench of this Court in the case of Haider Abbas Vs. Additional District Judge, Allahabad and others, (Supra), which has been followed by the learned Single Judge in the case of Smt. Saroj Tripathi and another Vs. Guru Prasad and others, (Supra) has held that the provisions of Order XV Rule 5 is mandatory and has to be strictly complied with and for non-compliance, if defence has been strike off, the same can not be said to be unjustified. The rent for the month of 01.04.2010 to 31.08.2010 has admittedly been deposited on 14.07.2010. Guru Prasad and others, (Supra) has held that the provisions of Order XV Rule 5 is mandatory and has to be strictly complied with and for non-compliance, if defence has been strike off, the same can not be said to be unjustified. The rent for the month of 01.04.2010 to 31.08.2010 has admittedly been deposited on 14.07.2010. The petitioner is not able to establish by any evidence that the application for the tender has been submitted along with application, 11-C on 15.02.2010. Therefore, the submission of learned counsel for the petitioner that the application was submitted along with application, 11-C on 15.02.2010 can not be accepted. Further there was a default in deposit of rent for the month of September, admittedly for the deposit of rent for the month of September, tender was submitted on 14.11.2010. The revisional court further observed that there was no evidence on record to show that when the tender has been placed for the deposit of rent for the period 01.11.2010 to 03.04.2011. No explanation has been offered before the revisional court, inasmuch as for the explanation in accordance to sub-rule (2) of Order XV Rule 5, the representation has to be made within ten days. No representation was filed giving the explanation for such delay. 8. In the circumstances, I do not find any error in the impugned order passed by the courts below. 9. The writ petition fails and is, accordingly dismissed. _____________