BIMAL CHAND JAINversusSRI GOPAL AGARWAL

A    124

                                  BIMAL CHAND JAIN
                                             v.

B                               SRI GOPAL AGARWAL

                                        July 27, 1981

                      [R.S. PATHAK, 0.CHINNAPPA REDDY AND
                               BA '.IARUL !SLAM, JJ. l

c        Civil Procedure Code Rule 5 Order XV-D~fau/t in payment of arrears of rent
    during the pendency of suit-Court if competent to strike off defence.

          Rule 5 of Order XV C.P.C. was re-enacted by the U.P. Act 1976 and it pro-
    vided that the defendant shall deposit the entire amount of rent due from him
    together with interest at or before the first bearing of the suit for eviction and
    also continue to deposit the monthly amount regularly and that on failure to do
D   so, his defence was liable to be struck off. Another rule provided that before
    striking off the defence, the Court may consider any representation made in that
    behalf.

          The respondent filed a suit against the appellant for ejectment and recovery
    of arrears of rent. The appellant filed written statement and resisted the suit.
    The appellant during the pendency of the suit committed default in depositing
E   the rent regularly and the respondent filed application under Rule 5 Order XV
    C.P.C. for striking off the appellant's defence. The appellant attempted to show
    that he had been depositing th1:; rent as required by law. The trial court accepted
    the application and held that the appellant had failed to make any representation
    permitted by him under sub-rule (2) of Rule 5 of Order XV within time. The trial
    court accordingly struck off the defence and the High Court affirmed the order of
    the trial court on the ground that where no representation was made or if made
F   was filed beyod time, the Court was bound to strike off the defence and enjoyed
    no discretion in the matter.

           Allowing the Special Leave Petition,

           HELD : An order under sub-rule (1) striking off the defence is in the nature
    of a penalty. A serious responsibi1ity rests on the court in the matter and the
G   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 circum-
    stances already existing on the record, it finds good reason for not doing so. It
    will always be a matter for the judgn1ent 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
H   (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. L128 C-D]
                     BIMAL CHAND v. SRI GOPAL (Pathak, J.)                  125

            Puran Cha.ndv. Prav;n Gupta, Civi1 Revision No. 356of1978 decided on   A
        October 30, 1980 All. H.C. overruled.
    i
              CIVIL APPELLATE      JURISDICTION : Civil Appeal      No.    1759
        of 1981

             Appeal by special leave from the judgment and order dated
        3rd December, 1980 of the Allahabad High Court in Civil Revision           B
        No. 525 of 1980

              F.S. Nariman and K.K. Mohan, for the Appellant.



-             R. K. Garg, Pramod Swarup and Sunil Kumar Jain, for the
         Respondent.

              The Judgment of the Court was delivered by
                                                                                   c

               PATHAK, J. In a suit for ejectment of a lessee and for recovery
         of arrears of rent, does the court enjoy any discretion not to strike
         off the defence in case the defendant has defaulted in depositing the     D
         rent and has also failed to make any representation within the terms
         of Rule 5 of Order XV, Code of Civil Procedure? That question is
         raised in this defendant's appeal by special leave against an order
         of the Allahabad High Court maintaining in revision that the trial
         court has no discretion in the circumstances but must strike off the
         defence.                                                                  E

                The respondent as lessor filed a suit against the appellant as
         lessee for his ejectment and for recovery of arrears of rent. The
         appellant filed a written statement and resisted the suit. During
         the pendency of the suit the respondent filed an application praying
                                                                                   F
          that the appellant's defence be struck off in view of Rule 5 of Order
         XV, Code of Civil Procedure, inasmuch as the appellant had com-
          mitted default in depositing the rent regularly. The appellant
         opposed the application and attempted to show that he had been
         depositing the rent as required by the law. The trial court held that
          while the rental arrears admitted by the appellant to be due had been
                                                                                   G
          deposited in accordance with the relevant provision of sub-rule (!)
          of Rule 5 of Order XV, he had failed to make regular deposits of
          the monthly rent accruing during the pendency of the suit as required
          by the other provision of the said Rule. The trial court also noted
          that the appellant bad failed to make any representation permitted
                                                                                   H
          him by sub-rule (2) of Rule 5 of Order XV within the time prescribed
          in that provision. Following a ruling of the Allahabad High Court
    126                       SUPREME COURT REPORTS                  [1982) 1 S.C.R.

A   that in those circumstances the court was obliged to strike off the
    defence, that trial court did exactly that. The appellant applied in
    revision to the High Court, and the High Court, in view of the view
    taken by a Division Bench in Puran Chand v. Pravin Gupta,(') affir-
    med the order of the trial court.

B         Rule 5 of Order XV, Code of Civil Procedure, was enacted by
    the U.P. Civil Laws (Amendment) Act 1972. It provided that unless
    the defendant deposited the admitted rent or compensation at or
    before the first hearing of the suit and also deposited the monthly
    rent regularly, his defence was liable to be struck off. There was a
    further provision entitling a defendant to make a representation and
c   obtain further time to make the deposit. The Rule was repealed by
    U.P. Act No. 57 of 1976 and was re-enacted as follows :                            -
                "Striking of} defence an failure to deposit admitted
           rent, etc. -( l) In any suit by a lessor for the eviction of
           a lessee after the 'determination of his lease and for the
D          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 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 maysubject to the provisions of sub-rule (2)
            strike off his defence.
F
           Explanation I

           Explanation 2

            Explanation 3
G
            (2) Before ma king 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 ten days of the first hearing or of the
H
          (I)   Civil Revision No. 356 of 1978 decided on October 30, 1980.
                (Allahabad High Court)
                BIMAL CHAND v. SRI GOPAL (Pathak, J.)                  127

              expiry of the week referred to in sub-section ( l) as           A
              the case may be.

         (J) The amount deposited under this rule may at any
             time be withdrawn by the plaintiff;
                                                                              B
              Provided that such withdrawal shall not have the
         effect of 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 deductable on                c
         any account the court may require the plaintiff to furnish
         security for such sum before he is allowed to withdraw
         the same".

          The High Court held in Puran Chand (supra) that if the
    representation contemplated by sub-rule (2) was not made within the       D
    time prescribed therein the court had no jurisdiction to entertain a
    representation made beyond time and to condone the delay in
    making it. It held further that where no represe.1tation was made,
    or if made was filed beyond time, the court was bound to strike off
    the defence and enjoyed no discretion in the matter.
                                                                              E
          It appears on the facts in this case that no representation under
"   sub-rule (2) was made by the appellant. The only question raised
    before us is whether, in the absence of such representation, the court
    was obliged to strike off the defence of the appellant.
                                                                              F
          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            G
    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 whaf this means. Sub-rule (2) obliges the court,        H
    before making an order for striking off the defence to consider any
    representation made by the defendant in that behalf. In other words,
     128                      SUPREME COURT REPORTS            ( 1982] I S.C.R.

A     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
B   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 (I)
     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
c    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. 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
D   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 Pu·an Chand (supra). We are of opinion
    that the High Court has placed an unduly narrow construction on
E   the provisions of clause (1) of Rule 5 of Order XV.

         In the circumstances, the appeal is allowed, the order dated
    December 3, 1980 of the High Court is set aside and the case is
    remanded to the High Court for fresh consideration. In the
    circumstances, there is no order as to costs.
F
    N.K.A.                                                  Appeal allowed.