Abdul Razak Gulam Nabi Mansuri vs Managing Trustees of Timba Masjid, Rasulmiya Allarakhamiya Malik and Others

R.A. Mehta, J.—This revision by the original defendant-tenant arises from orders striking off defence for not complying with the condition of depositing the amount of interim standard rent within the time fixed by the trial court. Subsequent application by the tenant to allow him to appear in and defend the suit was also rejected. The District Court has also confirmed that order. While confirming that order the District Court has found that "true that new tenant has deposited all the arrears in the court as per pursis filed on 7-2-83 along with receipt No. 889741 having paid Rs. 2460.00/-" yet it has confirmed the order of the trial court observing "law does not permit the lower court u/s 11(4) of the Bombay Rent Act to grant or not to grant permission". This order is challenged in this Revision Application.

Section 11(4) of the Rent Act, material part, reads as under:

...the court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the court which may be granted subject to such terms and conditions as the court may specify.

Thus even assuming that the court had validly directed the tenant to deposit in the court the amount of interim standard rent during the pendency of the suit and further that the trial court had validly directed that if the tenant fails to comply with such order within time granted by it, he shall not be entitled to appear in or defend the suit, such striking off the defence is further subject to the statutory provision "except with the leave of the court". Therefore the court has discretion to grant leave to appeal and defend the suit. Once the tenant has fully complied with the condition and made full deposits of all the arrears of interim standard rent ordinarily the tenant-must be allowed to appear and defend the suit and such leave cannot ordinarily be refused. In the present case mere is no dispute that the tenant has deposited all the arrears of interim standard rent. There does not appear to be any reason whatsoever in this case as to why he should not be allowed to appear in and defend the suit. The learned Extra Assistant Judge was clearly in legal error in observing that u/s 11(4) the trial court had no power to grant such permission. This is contrary to the bare reading of the section. The section expressly provides for leave of the court even after the defence is struck off. Therefore the judgment and orders of the lower courts are contrary to express statutory provision and the courts have illegally refused to exercise the jurisdiction vested in them by law.

In the result, the Revision Application succeeds and the impugned orders of the lower courts are quashed and set aside and leaves granted to the defendant to defend the suit. Rule made absolute with no order as to costs.