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2013 DIGILAW 1797 (ALL)

Kanhaya Lal v. Manohar Lal Gera

2013-07-08

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra,J. Heard Sri S.K. Nigam, learned counsel for the revisionists and Sri B.N. Rai, learned counsel for the sole plaintiff-respondent. 2. This revision under Section 25 of the Small Causes Courts Act has been filed against the order dated 29.07.2011 passed in S.C.C. Suit No.20 of 2009 (Manohar lal Gera Vs. Kanhaya Lal) by the Additional District Judge, Court No.9, Kanpur Nagar, whereby the defence of the revisionist-tenant has been struck of under Order 15 Rule 5 C.P.C. Learned counsel for the revisionist has argued that the revisionists had deposited 9 years rent in advance on 30.05.2009 @ Rs.25/- per month and, therefore, to say that the revisionists has committed default in depositing the amount for the years 2010-11 is incorrect. He further states that even then the revisionists deposited the rent @ Rs.300/- per month for the month of May, 2009 to December, 2009 on 25.10.2010. According to him, thereafter from January, 2011 to April, 2011 and May, 2011 to August 2011 the amount of rent was deposited by the tender dated 18.02.2011 and 27.05.1011. According to him, the revisionists was not in default and had no intention to commit default since he was in any event depositing the monthly rent. 3. Sri B.N. Rai, learned counsel for the plaintiff-respondent has disputed the submission of learned counsel for the revisionist and has submitted that the default was committed in deposit of monthly rent since it was not deposited in the first week of? every month when it was due. Such finding has been clearly recorded in the impugned order by the Courts below where it has been found that for the month of February, 2011 rent was not deposited in the first week. It has also been held that for the month of May, 2011 the amount was not deposited in the first week of the month when it was due as such the defence of the revisionist was rightly struck off under Order 15 Rule 5 C.P.C. 4. Having considered the submission of learned counsel for the parties and perused the record, it appears that the Court below was of the view that the tenant-revisionist has not given any application or representation to explain the delay that he had not intentionally defaulted. According to learned counsel in view of the decision of the Supreme Court in the case of 'Vimal Chandra Jain Vs. According to learned counsel in view of the decision of the Supreme Court in the case of 'Vimal Chandra Jain Vs. Sri Gopal', reported in AIR 1981 SC 1657 even if there is no representation explaining the delay in depositing the rent the Court below has a serious responsibility to see the record to find out if there is any material available on record to indicate a good reason to condone the delay in deposit of rent and hence for not striking off the defence of the tenant. Therefore, even if there is no representation made by the tenant with respect to explaining the delay in defaulting the deposit month to month it is the duty of the Court to look into the material on record to find out a good reason for condoning the delay. 5. Insofar as the above submission and decision of the Supreme Court is concerned, in the present case it is admitted that there was no representation made by the tenant-revisionist to explain the delay in making the monthly deposit, however, there was also no material available on record to explain that the delay in depositing the amount was bonafide and ought not to be treated as an intentional default on the part of the tenant. As such insofar as the representation required to be made by the tenant is concerned even in the absence of such representation if there is material available on record so as to not strike off his defence under Order 15 Rule 5 C.P.C. the said material has to be considered. However, in the present case when there is no material on record and no representation of the tenant, the said benefit cannot be granted to the revisionist-tenant. 6. A finding of fact has been recorded in the impugned order that the revisionist has committed default in depositing the rent for the month of February, 2011 and for the month of May, 2011. Clearly, the record indicates that the default has been committed in these two months and the rent was not deposited by the revisionist within time in these two months. In the absence of any explaination for delay and in the absence of any material available on record to justify the condonation of such delay, the said default has been committed by the tenant-revisionist. 7. In the absence of any explaination for delay and in the absence of any material available on record to justify the condonation of such delay, the said default has been committed by the tenant-revisionist. 7. Under such circumstances, when the default has been committed the Court below has rightly struck off the defence of the tenant-revisionist under Order 15 Rule 5 C.P.C. 8. The revision has no force. It is, accordingly, dismissed. 9. No order is passed as to costs.