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2013 DIGILAW 3012 (ALL)

Mukesh v. Malati Rani Agarwal

2013-12-11

MANOJ MISRA

body2013
JUDGMENT Manoj Misra, J. Heard learned counsel for the revisionist and Sri Diwakar Rai Sharma for the respondent no.1. 2. The instant revision application has been filed against the order dated 8th November, 2013, passed by Small Cause Judge/Additional District Judge, Court No.1, Hathras in SCC suit no.8 of 2004, by which the application 104 Ga filed by the plaintiff-respondent seeking to strike off the defence of the defendant-revisionist, under Order XV, Rule 5 of the Code of Civil Procedure, has been allowed and the defence of the defendant-revisionist has been struck off. 3. A perusal of the record reveals that the defence has been struck off by noticing that the defendant deposited the monthly rent payable from December, 2006 up to March, 2007 in lump sum on 22nd March, 2007, thereafter from September, 2007 up to January, 2008 on 30th January, 2008 and thereafter from April, 2008 up to September, 2008 on 4th September, 2008. The Court below found that the defendant-revisionist was guilty of not depositing the monthly rent within time and has also not given any explanation for the delay in making the deposit of the aforesaid amount. The Court below placing reliance of Apex Court decision in the case of Bal Gopal Maheshwari and others Vs. Sanjeev Kumar Gupta : 2013 (100) ALR 652, held that as there was no explanation for the delay in making the monthly deposit of the rent, the defence of the defendant-revisionist was liable to be struck off. 4. Assailing the order of the Court below, learned counsel for the revisionist submitted that it is not obligatory for the Court below to strike off defence under Order XV, Rule 5 of the Code of Civil Procedure, and since the defendant-revisionist has already deposited the rent payable up to the end of October, 2013, though with delay in certain deposits, the Court below ought to have exercised its discretion in favour of the defendant-revisionist. 5. I have given thoughtful consideration to the submission of the learned counsel for the revisionist. No doubt, an order striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure is at the discretion of the trial Court and it is open to the trial Court to consider various facts and circumstances so as to conclude whether the defence should be struck off or not. No doubt, an order striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure is at the discretion of the trial Court and it is open to the trial Court to consider various facts and circumstances so as to conclude whether the defence should be struck off or not. But where the Court after taking notice of the facts and circumstances exercises its power to strike off defence under Order XV, Rule 5 of the Code of Civil Procedure, then such exercise of power is within the jurisdiction of the Court and the revisional Court can interfere with the same only if it has been exercised against settled legal principles or is against the material available on record. 6. In the instant case, it is not disputed by the revisionist that instead of making monthly deposits as required under the provisions of Order XV, Rule 5 of the Code of Civil Procedure by the 7th of each month, the deposits were being made on quarterly basis. Even no explanation has been given for making such quarterly deposits as also with regard to the delay in making the said quarterly deposits. It is not the case of the revisionist that in terms of the tenancy agreement, rent was payable on quarterly basis. In such circumstances, there has been a flagrant violation of the provisions of Order XV, Rule 5 of the Code of Civil Procedure (as amended in the State of U.P., by U.P. Act No.57 of 1976) by the revisionist. Therefore, the order passed by the Court below cannot be said to be illegal or un-justified, particularly in view of the decision of the Apex Court Court in the case of Bal Gopal Maheshwari (supra). 7. The revision, therefore, lacks merit and is, accordingly, dismissed.