Kailash Shukla vs Additional District Judge,Deoria & Ors.

S.P. Mehrotra, J.—This writ petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 982002 (Annexure No. 4 to the writ petition) and the order dated 3092002 (Annexure No. 5 to the writ petition).

By amendment in the writ petition, the petitioner has, inter alia, sought quashing of the order dated 1372001(Annexure No. 1 to the affidavit accompanying the amendment application) and the order dated 2782001 (Annexure No. 2 to the affidavit accompanying the amendment application).

The dispute relates to an accommodation in the house in question situated on Kasia Road, Deoria, the details whereof have been given in the plaint of the suit referred to herein after. The said accommodation has hereinafter been referred as �the disputed accommodation�.

The petitioner has, inter alia, filed in the writ petition the following:

(1) Supplementary affidavit sworn on 3012003. The said supplementary affidavit has hereinafter been referred to as � The First Supplementary Affidavit�.

(2) Amendment application supported by an affidavit sworn on 301 2003. The said amendment application was allowed on 2422003.

(3) Second Supplementary Affidavit sworn on 2322003.

(4) Third Supplementary Affidavit sworn on 2622003 filed which is taken on record.

From the allegations made in the writ petition and the affidavits filed on behalf of the petitioner, it appears that the respondent No. 3 filed a Suit against the petitioner for ejectment, arrears of rent etc., in respect of the disputed accommodation. It was, inter alia, alleged by the respondent No. 3 that the respondent No. 3 was the owner and landlord of the house in question; and that the respondent No. 3 had purchased the said house in question from its previous owner Smt. Kishori Devi by sale deed dated 1541974; and that the petitioner was the tenant of the disputed accommodation in the house in question at a monthly rent of Rs. 27.50; and that the petitioner paid rent up to April 1983; and that the petitioner did not pay rent after April, 1983 despite demand; and that the respondent No. 3 through his counsel sent notice on 2891989 to the petitioner under Section 20 of the U.P. Act No. XIII of 1972 (In short �the Act�) and Section 106 of the Transfer of Property Act which was received by the petitioner; and that the petitioner gave incorrect reply of the said notice. The said Suit was registered as S.C.C. Suit No. 88 of 1989. Copy of the plaint of the said Suit has been filed as Annexure No. 1 to the Writ Petition.

The petitioner contested the said Suit and filed written statement, copy whereof has been filed as Annexure No. 2 to the Writ Petition.

It further appears that during the pendency of the said Suit, the respondent No. 3 filed an application No. 14Ga under Order XV Rule 5 of the Code of Civil Procedure, inter alia, praying for striking off the defence of the petitioner on the ground that the rent for the period from August, 1989 to January 1990, admitted by the petitioner to be due, had not been deposited by the petitioner.

The said application No. 14Ga filed on behalf of the respondent No. 3 was rejected by the order dated 3071991 mainly on the ground that the petitioner had already deposited rent for the period from August, 1989 to August, 1991 in Misc. Case No. 60 of 1990. Copy of the said order dated 3071991 has been filed as Annexure No. 1 to the Second Supplementary Affidavit.

Thereafter, it appears that the respondent No. 3 again filed an application No. 62Ga/2 under Order XV Rule 5 of the Code of Civil Procedure, inter alia, praying for striking off the defence of the petitioner on the ground that the petitioner was required to deposit rent month to month but the petitioner failed to make the said deposit.

It further appears that the petitioner filed objection No. 63Ga/2 against the said application No. 62Ga/2 filed by the respondent No. 3.

It further appears that the said application No. 62Ga/2 filed by the respondent No. 3 was allowed, and the defence of the petitioner in the said Suit was struck off by the order dated 1372001 passed by the learned Civil Judge(Junior Division), Court No. 10, Deoria. Copy of the said order dated 1372001 has been filed as Annexure No. 1 to the affidavit accompanying the amendment application.

Thereupon, the petitioner filed a Revision under Section 25 of the Provincial Small Cause Courts Act. By the order dated 2782001, the learned District Judge, Deoria dismissed the said Revision at the admission stage itself. Copy of the said order dated 2782001 has been filed as Annexure No. 2 to the affidavit accompanying the amendment application.

Thereafter, it appears, the statement of the respondent No. 3 was recorded in the said Suit. The respondent No. 3 was also crossexamined on behalf of the petitioner. Copy of the said statement of the respondent No. 3 in the said Suit has been filed as Annexure No. 1 to the First Supplementary Affidavit.

By the judgment and order dated 982002 passed by the Prescribed Authority, Judgeship, Court No. 10, Deoria, the said SCC Suit No. 88 of 1989 was decreed. Copy of the said judgment and order dated 982002 has been filed as Annexure No. 4 to the Writ Petition.

Thereupon, the petitioner filed a Revision under Section 25 of the Provincial Small Cause Courts Act which was registered as SCC Revision No. 3 of 2002.

By the judgment and order dated 3092002, the learned Additional District Judge, Court No. 4, Deoria dismissed the said Revision filed by the petitioner.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Sri R.C. Dwivedi, learned counsel for the petitioner and Sri H.P. Mishra, learned counsel for the respondent No. 3.

Sri R.C. Dwivedi, learned counsel for the petitioner submits that the order dated 1372001 passed by the learned Civil Judge (J.D.), Court No. 10, Deoria striking off the defence of the petitioner was illegal. It is further submitted by Sri Dwivedi that the earlier application No. 14Ga filed on behalf of the respondent No. 3 under Order XV Rule 5 of the Code of Civil Procedure having been rejected by the order dated 3071991, it was not open to the learned Civil Judge (J.D.), Court No. 10, Deoria to pass the said order dated 1372001 striking off the defence of the petitioner on the said application No. 62Ga/2 filed on behalf of the respondent No. 3. It is also submitted by Sri Dwivedi that the said application No. 62Ga/2 filed under Order XV Rule 5 of the Code of Civil Procedure was on the same ground on which the earlier application No. 14Ga/2 had been filed on behalf of the respondent No. 3. It is further submitted by Sri Dwivedi that as per the provisions of Order XV Rule 5 of the Code of Civil Procedure, the Court should normally exercise discretion in favour of not striking off the defence of the defendant (petitioner herein). Sri Dwivedi has relied upon the following decisions:

(1) Laxmi Narain v. Ramanand and others, 1994(2) ARC 112 : 1994 AWC 1169.

(2) Shiv Prasad v. Special Judge, Allahabad, 1996(1) JCLR 398 (All) : 1996 (1) Allahabad Civil Journal 160.

(3) Bhawani Vastrya Bhandar, Ballia and another v. Smt. Sahodra Devi (Since deceased) and others, 1996(2) JCLR 513 (All) : 1996(2) A.R.C. 406.

(4) Devendra Pandey v. Additional District Judge II, Civil Court, Varanasi and others, 1997(1) ARC 223.

(5) Radha Kishan v. VIIth Addl. District Judge, Kanpur Nagar and others, 2000(1) JCLR 655 (All) : 2000(1) ARC 345.

In reply, Sri H.P. Mishra, learned counsel for the respondent No. 3 submits that the order dated 3071991 passed on the application No. 14Ga had been passed on the ground that the rent for the period from August 1989 to August 1991 had been deposited in Misc. Case 60 of 1990 under Section 30(1) of the Act, while application No. 62Ga/2 was filed on behalf of the respondent No. 3 on the ground of failure on the part of the petitioner to comply with the requirements of monthly deposits as contained in Order XV Rule 5 of the Code of Civil Procedure. Two applications, it is submitted, were thus, on different grounds. Hence, the submission proceeds, the rejection of the said application No. 14Ga by the order dated 3071991 was not relevant for deciding the said application No. 62Ga/2 filed on behalf of the respondent No. 3.

In order to appreciate the submissions made by the learned counsel for the parties, it is necessary to refer to the provision of Order XV Rule 5 of the Code of Civil Procedure, 1908, which provides as follows:

�5. Striking off defence for failure to deposit admitted rent, etc.(1) In any suit by a lessor for the eviction of a lessee from any immovable property after determination of his lease, and for the 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 percent per annum and whether or not he admits any amount to be due, he shall throughout the continuance of the suit regularly 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 may, subject to the provisions of the subrule (2) strike off his defence.

Explanation 1.The expression �first hearing� means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the date mentioned.

Explanation 2.The expression �entire amount admitted by him to be due� means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor''s account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3.(1) The expression �monthly amount due� means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor''s account.

(2) Before making 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 10 days of the first hearing or, of the expiry of the week referred to in subsection (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:

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 deductible on any amount, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same�.

The provision of Order XV Rule 5 of the Code of Civil Procedure quoted above was considered by this Court in Ram Kumar Singh v. IIIrd Addl. District Judge, Ghaziabad and others, 2003(1) JCLR 767 (All) : 2003(1) ARC 294. It was laid down as follows (paragraph Nos. 13, 14, 16 and 41 of the said ARC):

�(13) A perusal of the aforesaid provision of Order XV Rule 5 of the Code of Civil Procedure shows that the said provision is applicable to any suit filed by a lessor for eviction of a lessee from an immovable property after determination of his lease, and for the recovery'' from him of rent in respect of the period of occupation thereof during continuance of the lease or of compensation for the use and occupation thereof after the determination of the lease.

�(14) The aforesaid provision of Order XV, Rule 5(1) of the Code of Civil Procedure shows that there are two parts in the said provision:

(A) On or before the first hearing of the suit, the defendant shall deposit the entire amount admitted by him to be due together with interest at the rate of 9% per month.

The meaning of the expression �first hearing� has been given in Explanation 1 to subrule (1) of Order XV, Rule 5 of the Code of Civil Procedure. Accordingly, the �first hearing� means the date for filing of the written statement or for hearing mentioned in the summons. In case, more than one of such dates are mentioned, �first hearing� will be the last of the dates mentioned.

The meaning of the expression �entire amount admitted by him to be due� has been given in Explanation 2 to subrule (1) of Order XV, Rule 5 of the Code of Civil Procedure. Accordingly, the �entire amount admitted by him to be due� means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the following:

(i) The taxes, if any, paid to a local authority in respect of the building on lessor''s account.

(ii) The amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him.

(iii) The amount, if any, deposited in any Court under Section 30 of the U.P. Act No. XIII of 1972.

(B) Whether or not the defendant admits any amount to be due, he shall throughout the continuance of the suit deposit regularly the monthly amount due within a week from the date of its accrual.

The meaning of the expression �monthly amount due� has been given in Explanation 3 to subrule (1) of Order XV, Rule 5 of the Code of Civil Procedure. Accordingly, �monthly amount due� means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor''s account.

It will, thus, be seen that the first part of Order XV, Rule 5(1) of the Code of the Civil Procedure, namely, the head (A) above deals with the deposit of arrears of rent/compensation due from the defendant with interest thereon provided such arrears are admitted by the defendant to be due from him. On the other hand, the second part of the said provision, namely, head (B) above deals with the monthly deposit of rent/compensation at the admitted rate of rent to be made by the defendant throughout the continuance of the suit irrespective of the fact whether the defendant admits any amount to be due from him or not.

In case, the defendant fails to comply with any of the aforesaid two parts of Order XV, Rule 5 (1) of the Code of Civil Procedure, the Court may strike off the defence of the defendant. However, the provision for striking off the defence under subrule (1) of Order XV Rule 5 of the Code of the Civil Procedure is subject to subrule (2) of the said provision. According to subrule (2) of Order XV, Rule 5 of the Code of Civil Procedure, before making an order for striking off the defence, the Court may consider any representation made by the defendant in that behalf. Such representation is required to be made within 10 days of the first hearing where the aforesaid first part, namely head (A) is applicable. In case the aforesaid second part namely, head (B) above is applicable, such representation is required to be made within 10 days of the expiry of a week referred to in subrule (1) of Order XV Rule 5 of the Code of Civil Procedure, that is, within 10 days of the expiry of a week from the date of accrual of the �monthly amount due�.

�(16) I have considered the submission made by the learned counsel for the petitioner, and I find myself unable to accept the same. As noted above, the second part of Order XV Rule 5 (1) of the Code of Civil Procedure provides that whether or not the defendant admits any amount to be due, he must regularly deposit throughout the continuance of the suit the monthly amount due within a period of one week from the date of its accrual. Therefore, this provision shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus, evident that the defendant is bound to ensure compliance of the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure throughout the continuance of the suit. In the event of any default by the defendant in compliance with the provisions of Order XV, Rule 5(1) of the Code of Civil Procedure, the defence of the defendant may be struck off by the Court as the monthly deposit is required to be made throughout the continuance of the suit. It is open to the Court to strike off the defence of the defendant at any stage during the continuance of the suit, in case, there is failure on the part of the defendant in compliance with the provisions of Order XV, Rule 5(1) of the Code of Civil Procedure. The defence of the defendant can, therefore, be struck off at any stage during the continuance of the suit. Secondly, it is for the Court to decide as to at what point of time it would consider the question as to whether the defence of the defendant is to be struck off on account of noncompliance with the provisions of Order XV, Rule 5(1) of the Code of Civil Procedure. Even though an application is filed by the plaintiff for striking off the defence of the defendant on account of noncompliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure, it is for the Court to decide as to at what point of time such application of the plaintiff would be considered. The Court may in its discretion decide that the question or issue regarding the striking off the defence of the defendant on account of noncompliance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, would be decided along with other issues framed in the suit after the evidence of the parties is recorded. In case, the Court adopts such procedure, it cannot, in my opinion, be said that the Court has acted in any illegal manner.

�(41) As noted above, the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure, namely head (B) above provides that whether or not the defendant admits any amount to be due, he shall throughout the continuance of the suit deposit regularly monthly amount due within a period of one week from the date of its accrual. The expression �monthly amount due� means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor''s account. Thus, the deposit under the second part of Order XV Rule 5 (1) of the Code of Civil Procedure is mandatory whether or not the defendant admits any amount to be due. However, �monthly amount due� required to be deposited under the second part of Order XV Rule 5 (1) of the Code of Civil Procedure is required to be deposited at the admitted rate of rent.�

Keeping in view the aforesaid legal position, let us examine the facts of the present case.

In the said order dated 1372001, it was observed by the learned Civil Judge (J.D.), Court No. 10, Deoria that no evidence or challan was brought on record showing any deposit of rent after August, 1991. However, alongwith the Third Supplementary Affidavit sworn on 26th February, 2003, the petitioner has filed Photostat copies of certain challans showing deposits of rent upto May, 1993 in Misc. Case No. 60 of 1990 under Section 30(1) of the Act.

It is submitted by Sri Dwivedi, learned counsel for the petitioner that the said challans were brought to the notice of the Court below but the same were not considered.

In reply, Sri Mishra, learned counsel for the caveator respondent No. 3 submits that the said deposits, as is evident from the said challans, were made in Misc. Case No. 60 of 1990 under Section 30(1) of the Act, and not in the said S.C.C. Suit No. 88 of 1989 which was pending at the relevant time. It is further submitted by Sri Mishra that as the said S.C.C. Suit No. 88 of 1989 was pending at the relevant time, it was not open to the petitioner to make the said deposits under Section 30(1) of the Act.

I have considered the submissions made by the learned counsel for the parties, and perused the record.

Without going into the question as to whether the deposits made by the petitioner in Misc. Case No. 60 of 1990 under Section 30(1) of the Act were valid or not, and as to whether the said deposits could be considered for the purpose of Order XV Rule 5 of the Code of Civil Procedure or not, it is evident on record that no deposit was made by the petitioner after May 1993. Thus, the petitioner, in any case, did not make any monthly deposit after May, 1993 as per the requirements of Order XV Rule 5 of the Code of Civil Procedure. Hence, the defence of the petitioner was rightly struck off by the said order dated 1372001.

The question which next arises is as to whether any representation was made by the petitioner as contemplated in SubRule (2) of Order XV Rule 5 of the Code of Civil Procedure in order to absolve the petitioner from consequence of striking off of his defence.

It is submitted by Sri Dwivedi, learned counsel for the petitioner that the petitioner failed to make monthly deposits on account of absence of legal advice. Sri Dwivedi, learned counsel for the petitioner refers to Ground No. 3 of Memorandum of Revision filed against the said order dated 1372001, copy whereof has been filed as Annexure No. 2 to the Second Supplementary Affidavit.

In reply, Sri Mishra, learned counsel for the caveator respondent No. 3 submits that no such ground was taken by the petitioner in his objection No. 63Ga/2 filed against the said application No. 62Ga/2. It is further submitted that Ground No. 3 of the Memorandum of Revision is totally vague and lacking in material particulars. No valid reason has been given in the said Ground No. 3 for not complying with the requirements of Order XV Rule 5 of the Code of Civil Procedure.

I have considered the submissions made by the learned counsel for the parties. Nothing has been brought before me to show that any representation was made by the petitioner within 10 days of the expiry of period of one week as required under subrule (2) of Order XV Rule 5 of the Code of Civil Procedure. Only material which have been pointed out by the learned counsel for the petitioner before me are Ground No. 3 of the Memorandum of Revision filed against the said order dated 1372001, and the objection (No. 63Ga 2) filed by the petitioner against the said application No. 62Ga/2 filed on behalf of the respondent No. 3.

I have perused the said Ground No. 3 of the Memorandum of Revision. Only assertion made in the said Ground No. 3 is that the petitioner could not comply with the requirements of Order XV, Rule 5 of the Code of Civil Procedure as he did not get proper legal advice. The said Ground No. 3 is totally vague. No material particulars have been given in the said Ground No. 3 of the Memorandum of Revision. There is no disclosure of the names of the learned counsel for the petitioner who were appearing before the trial Court. Moreover, it is not alleged in the said Ground No. 3 that wrong legal advice was given to the petitioner on account of which the petitioner did not comply with the requirements of Order XV Rule 5 of the Code of Civil Procedure. What is being alleged is that the petitioner did not get proper legal advice. In the circumstances, in my opinion, no proper or valid explanation or reason has been brought on record to show as to why the petitioner failed to comply with the requirements of Order XV Rule 5 of the Code of Civil Procedure.

Even otherwise, the reason shown in the said Ground No. 3 that the petitioner did not get proper legal advice, does not appear to be correct.

It is noteworthy that the respondent No. 3 had filed an earlier application No. 14Ga under Order XV Rule 5 of the Code of Civil Procedure which was rejected by the order dated 3071991. It is thus, evident that the petitioner was aware of the requirements of making deposits during the pendency of the Suit, still the petitioner did not make any deposit after May, 1993. Therefore, the reason shown in the said Ground No. 3 that the petitioner did not get proper legal advice, cannot be believed.

As regards objection No. 63Ga/2 filed by the petitioner before the trial Court against the said application No. 62Ga/2 filed on behalf of the respondent No. 3, it is evident from a perusal of the said order dated 1372001 that the explanation given in the said objection by the petitioner was that there was dispute amongst several landlords in respect of the house in question, as such, the petitioner did not make any deposit. The said explanation given by the petitioner was disbelieved in the said order dated 1372001 giving cogent reasons. It was, inter alia, pointed out that in the written statement filed by the petitioner in the said S.C.C. Suit No. 88 of 1989, it was admitted by the petitioner that the respondent No. 3 was the landlord of the disputed accommodation; and that neither the petitioner gave any evidence of there being several landlords of the disputed accommodation, nor did the petitioner give any detail regarding the alleged several colandlords; and that there was no application on record by the petitioner wherein the petitioner had sought relief on the ground that there were several landlords and the petitioner was facing difficulty in depositing the rent.

As noted above, the Revision filed by the petitioner against the said order dated 1372001 was dismissed by the learned District Judge, Bareilly by the order dated 2782001.

In my opinion, the explanation given by the petitioner in his objection No. 63GA/2 for not making deposit under the provisions of Order XV Rule 5 of the Code of Civil Procedure has been rightly disbelieved in the said order dated 1372001.

Excepting the aforesaid Ground No. 3 of the Memorandum of Revision and the said objection No. 63Ga/2 filed by the petitioner against the said application No. 62Ga/2, no other material has been brought on record to show as to whether any explanation or reason was given by the petitioner before the Courts below for not complying with the requirements of Order XV Rule 5 of the Code of Civil Procedure, nor has any other material been pointed out which was placed before the Courts below wherefrom any explanation or reason could be culled out for not complying with the requirements of Order XV Rule 5 of the Code of Civil Procedure by the petitioner.

There was, thus, no fact or circumstance on the record which showed any good reason for default committed by the petitioner in complying with the requirements of the second part of Order XV Rule 5 (1) of the Code of Civil Procedure.

In the circumstances, I am of the opinion that the defence of the petitioner was rightly struck off by the order dated 1372001, and the same was rightly upheld by the order dated 2782001.

Coming now to the decisions relied upon by Sri Dwivedi, learned counsel for the petitioner.

In Laxmi Narain case (supra), there was deposit of five months'' rent at one stretch and three months'' rent at another, and thus, there was delay in making deposit of monthly rent as per the requirements of the second part of Order XV Rule 5 (1) of the Code of Civil Procedure. However, before the application for striking off the defence filed on behalf of the plaintiffs/landlords on 20111987 could be considered, an application was filed on behalf of the tenant/defendant on 1541988 wherein the tenant/defendant stated that he had acted on the instruction of his counsel in the matter of deposit of rent, and the delay, if any, in depositing some of the amounts being unintentional, be condoned. Considering the said circumstances, it was held by a learned Single Judge of this Court as follows (paragraph Nos. 7 and 8 of the said A.R.C.):

�(7).........In other words, his explanation was that the delay was unintentional and was occasioned on account of the Counsel not advising him in due time to make the deposit. Neither the learned J.S.C.C. nor the Revisional Court has doubted this contention of the petitioner. The only ground which weighed was that the representation was not made within ten days from the date of default.�

�(8) The law in this regard, however, is not that in each and every case of delay, or lack of a formal representation, the defence should necessarily be struck off. The intention of the legislature in enacting this provision was to ensure the payment of rent or equivalent amount as damages each month to the landlord without the necessity of his having recourse to any formal process, by fastening the responsibility on the tenant to keep on depositing the amount. It has been laid down by the Supreme Court in Vimal Chandra v. Gopal Agarwal, 1981 AWC 529 : 1981 ARC 463, that even if no representation has been made in writing, the Court was not obliged to strike off the defence and it will be a matter for the judgment of the Court in every case to decide whether on the material before it, notwithstanding absence of a representation, the defence should be struck off or not. This Court also in a catena of decisions held that whether the delay was inadvertent or unintentional and amount has ultimately been deposited, strikingoff the defence would not be appropriate. See Smt. Kaniz Fatma and others v. Mahesh Chand, 1986(2) ARC 117 and Kailash Chandra and others v. Lalta Prasad and others, 1986(2) ARC 342. No different view has been taken by this Court with regard to these principles in Uma Kant Mukerji v. IInd Additional District Judge, Varanasi and others, 1983(1) ARC 276. In the said case the order striking off the defence was upheld in view of a clear finding of fact that the grounds shown in the representation for the 9, defaults in depositing the monthly rent, were not established. In the instant case, as already pointed out above, the plea of the petitioner about delay in deposit having inadvertently occurred on account of lack of suitable advice from the Counsel has not been repelled by the Court below. In this view of the matter, there was no justification in law to strike off the defence of the petitioner. Both the impugned orders, thus, suffer from a manifest error of law and deserve to be set aside�.

The said decision in Laxmi Narain case (supra) is evidently distinguishable on facts. As noted above, in the said case, an application for condonation of delay had already been filed on behalf of the tenant/defendant before defence could be struck off. The tenant/defendant had stated in the application that he had acted on the instructions of his Counsel in the lower Court in the matter of deposit of rent. Considering the said circumstances, it was held that the delay on the part of the tenant/defendant in making the said deposits was unintentional and was occasioned on account of the counsel who was conducting his case in the lower Court, not advising him to make the said deposits. In the present case, as noted above, the ground taken in the objection filed before the trial Court against the application under Order XV Rule 5 of the Code of Civil Procedure was that there were various landlords, therefore, rent could not be deposited. The said explanation given by the petitioner was not believed by the trial Court in the said order dated 1372001. In revision, only a ground was taken, namely, Ground No. 3 in the Memorandum of Revision that the petitioner could not comply with the requirements of Order XV Rule 5 of the Code of Civil Procedure as he did not get proper legal advice. The said ground, as discussed above, was totally vague and lacking in material particulars. Hence, the facts of the present case are clearly distinguishable from those of Laxmi Narain case. The decision in Laxmi Narain case is, therefore, not applicable to the present case.

It is, further, noteworthy that in Laxmi Narain case, there was delay in making the monthly deposits as per the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure in respect of rent for five months and rent for three months. On the other hand, in the instant case, the petitioner did not make any monthly deposits after May, 1993, and the default on the part of the petitioner continued since then.

In Shiv Prasad case (supra), it was laid down as follows (paragraph No. 7 of the said Allahabad Civil Journal):

�(7) The purpose of enacting the provisions of Rule 5 in Order XV was not to give lever to the landlord to get a tenant punished for insignificant lapses. The purpose was merely to ensure that the dues of the landlord are properly secured and he can get his rent regularly even though the litigation may continue. The details of the deposits made by the petitioner, in this case indicate that he was substantially compelled with the provisions of the aforesaid rule and when it struck to him that there was a little deficiency and delay he even deposited the amount of interest though there is no provision in the aforesaid rule for payment of interest on delayed deposits in respect of the rent falling due after the institution of the suit. It is also clear that though the tenant had been depositing the amounts over a number of year, no one, not even the Court pointed it out to him that the deposits are not in order. Even the landlord in his application did not pin point the default and wrongly alleged that no deposit has been made. The said application was not taken up for hearing immediately and was allowed to remain pending for about 10 months. Therefore, this was not a case in which the Courts `reserve of discretion'' could have been exercised to strike off the defence and it was undoubtedly a case in which the Court should have exercised that `reserve of discretion'' by declining to strike off the defence. As held by the Hon''ble Supreme Court the striking off of defence is of a penal nature. In Hindustan Steel Limited v. State of Orissa, (1972) 83 ITR 26, the Hon''ble Supreme Court held that an order imposing penalty for failure to carry out a statutory obligation is the result of quasicriminal proceedings and penalty will not ordinarily be imposed unless the parties obliged either acted deliberately in definance of law or was guilty of conduct, contumacious or dishonest or acted in conscious disregard of its obligation. Penalty will also not be imposed merely because it is lawful to do so. Whether a penalty should be imposed for failure to perform statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all relevant circumstances. The circumstances of the present case, as discussed above, show that the tenantpetitioner is not guilty of any dishonest or contumacious conduct. Nor it is shown that he acted deliberately in definance of law. He has almost fully complied with the requirements of law and the default was so insignificant and trifling that judicial discretion required the same to be ignored.�

A perusal of the above paragraph of the judgment in Shiv Prasad case shows that the facts of Shiv Prasad case (supra) are clearly distinguishable. In Shiv Prasad case (supra), as is evident from the above paragraph, there was substantial compliance of the second part of Order XV Rule 5(1) of the Code of Civil Procedure by the tenant/defendant over a number of years, and there was little deficiency and delay. In the present case, as noted above, no deposit was made by the petitioner after May, 1993, and there was thus no compliance by the petitioner of the second part of Order XV Rule 5 (1) of the Code of Civil Procedure since then. Hence the decision in Shiv Prasad case (supra) is not applicable to the present case.

In Bhawani Vastrya Bhandar case (supra), the Suit was adjourned from 5101983 to 28101983 for final hearing. The defendants deposited rent in accordance with the provisions of Order XV Rule 5 of the Code of Civil Procedure on 28101983 which was to be deposited before 5101983. In the circumstances, a learned Single Judge of this Court laid down as follows (paragraph No. 5 of the said ARC):

�(5) I have heard the learned Counsel for the parties and perused the entire record of the case. After going through the material on record, I am of the view that the Court below took technical and harsh view in striking off the defence. The provision of Order XV, Rule 5, C.P.C. should not be interpreted in such a way that they should be trapped to evict the tenants. In the present case, the conduct of the tenant is not obdurate and mala fide regarding the payment of rent, under Order XV, Rule 5, CPC, it is the discretion to the Court to strike off the defence. The striking off defence entails serious consequence of eviction and the tenants may not be able to find out the accommodation. As the same time, the Court is also to see that the interest of the landlord is not jeopardized regarding the payment of rent and the tenant walks out without the payment of money. In this case, the act of the defendanttenants is not mala fide. The learned Counsel for the applicants has relied on so many rulings on first hearing. A decision dated 3rd May, 1982 tendered by Hon''ble K.M. Dayal, J. in Civil Misc. Writ No. 6764 of 1980, Vishwanath v. Ist Additional District Judge and others, was cited. It relates of proving bona fide regarding the deposit of rent. The trial Court should not have struck off the defence. Mere absence of representation or delay in depositing rent or dues could not entitle trial Court to strike off defence�.

The decision in Bhawani Vastrya Bhandar case (supra ) is, thus, distinguishable. In the said case, there was short delay in making deposit under the provision of Order XV Rule 5 of the Code of Civil Procedure. In the present case, as noted above, the petitioner did not comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure after May, 1993, and the said default on the part of the petitioner continued since then.

In Davendra Pandey case (supra), the explanation given by the tenant was that he had been regularly paying rent to his Counsel for the purpose of depositing the same in the Court and the Counsel had been assuring that the rent was being deposited in the Court, and the tenant believed the statement of his Counsel in good faith. This explanation was given before the lower Courts but no categorical finding on the said explanation had been returned by either the learned Judge, Small Cause Court, Varanasi or the learned Addl. District Judge, Varanasi in their orders dated 641999 and 1491995 respectively. This Court allowed the writ petition and remanded matter to the Judge, Small Cause Court, Varanasi for reexamining the matter afresh in the light of observations made in the judgment. It was held by this Court as follows(paragraph No. 3 of the said ARC):

�(3) An order under subrule (1) of Rule 5 striking off the defence is in the nature of penalty. Power is, therefore, not supposed to be exercised mechanically and a serious responsibility rests on the Court in the matter. It cannot be gainsaid that the discretion of striking off the defence has to be exercised reasonably and not capriciously or arbitrarily. In other words, it is �to be exercised not arbitrarily but on sound and reasonable basis guided by judicial principle�. For a proper exercise of discretion it is necessary that the Court must direct itself to all the relevant questions including explanation, if any, given by the defendant for nondeposit of the rent, etc., as per requirement of subrule (1) of Rule 5 of Order XV of the Code of Civil Procedure. Principle in this regard is fairly well stated in the following words:

�If the exercise of a discretionary power has been influenced by consideration that cannot lawfully be taken into account, or by the disregard of relevant consideration, a Court will normally hold that the power has not been validly exercised.................�

�If the ground of challenge is that relevant considerations have not been taken into account, the Court will normally try to assess the actual or practical importance of the factor that was overlooked even though this may entail a degree of speculation. It will often be absurd for a Court to hold that a discretion had been invalidly exercised because a trivial factor had been overlooked.�

It will thus, be seen that the facts of Devendra Pandey case are clearly distinguishable from those of the present case. In Devendra Pandey case, the explanation given by the tenant was that he had been depositing monthly rent with his Counsel for the same being deposited in the Court. In the instant case, there is no such explanation by the petitioner. In fact, as is evident from the facts narrated above, the petitioner in the instant case did not make any effort to make monthly deposit after May, 1993. The explanation given by the petitioner in the objection against the application filed under Order XV, Rule 5 of the Code of Civil Procedure and in the Ground No. 3 of the Memorandum of Revision, as already discussed, cannot be accepted. The decision in Devendra Pandey case (supra) is not applicable to the facts of the present case.

In Radha Kishan case (supra ), questions to be considered were as to whether requisite deposit in accordance with the first part of Order XV Rule 5 (1) of the Code of Civil Procedure was made or not, and further, as to whether monthly deposit as per the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure were made or not. With regard to the second question, which is relevant in the instant case, it was laid down as follows (paragraph No. 9 of the said ARC):

�(9) The Courts below have further found that the petitioner had not deposited monthly rent within the time as prescribed under Order XV, Rule 5 C.P.C. The petitioner had submitted explanation firstly, that he was under financial difficulty due to expenses being incurred by him on the treatment of his daughterinlaw and secondly, the Counsel had not advised him to deposit the amount, within certain specified time. The Court took the view that there was no ample evidence to prove this fact. The Court has to consider the explanation in totality of all the circumstances. The provision of Order XV, Rule 5 of the Code of Civil Procedure has not been engrafted to penalize the defendant but it is in order to ensure that the tenant deposits monthly rent and not unnecessarily prolong the hearing of the suit. If there is any reasonable explanation offered by the tenant, the Court can accept such explanation and condone the delay in depositing such rent. The tenant had deposited monthly rent but there was some delay in depositing the rent. It was his case that it was due to his financial difficulty and secondly, he did not receive any advice from the Counsel that the amount has to be paid in the specified time. The Court was to consider whether in such circumstances the discretion should be exercised to strike off the defence. The Court did not examine this aspect of the matter. It is settled principle that the Court is not bound to strike off the defence and the discretion is to be exercised considering the various aspects of the matter Vide Sudhir Kumar Gupta v. Dr. S.K. Rajan and others, 1988(1) ARC 545; Prem Nath v. Dr. Chandra Prakash Saxena, 1999(1) ARC 301; Ashok Kumar Baranwal and another v. Ist A.D.J. Gorakhpur and others, 1999(1) JCLR 650 (All) : 1999 (2) ARC 465�.

It is evident from the paragraph quoted above that in Radha Kishan case (supra), the petitioner had deposited monthly rent but there was some delay in depositing the rent. The explanation given for delay was firstly, that the petitioner did not deposit the rent due to financial difficulty and secondly, that the petitioner did not receive any advice from his Counsel that the amount was to be paid within the specified time. Thus, the facts of Radha Kishan case are distinguishable from those of the present case. In the present case, the petitioner did not make any deposit after May, 1993.

Now let us now consider the judgment and order dated 982002 passed by the Prescribed Authority, Judgeship, Court No. 10, Deoria and the judgment and order dated 3092002 passed by the learned Additional District Judge, Court No. 4, Deoria. As noted above, by the said judgment and order dated 982002, the said S.C.C. Suit No. 88 of 1989 was decreed, and by the judgment and order dated 3092002, S.C.C. Revision No. 3 of 2002 filed against the said judgment and order dated 982002 was dismissed.

It is submitted by Sri Dwivedi, learned counsel for the petitioner that the said judgments and orders passed by the Courts below are illegal.

In reply, Sri H.P. Mishra, learned counsel for the respondent No. 3 submits that no illegality has been committed by the Courts below in passing the said judgments and orders.

I have considered the submissions made by the learned counsel for the parties. A perusal of the said judgment and order dated 982002 shows that the plaintiff (respondent No. 3), inter alia, examined himself as P.W. 1. It was, inter alia, held in the said judgment and order dated 982002 that the notice given to the petitioner by the respondent No. 3 was proved by the respondent No. 3; and that the petitioner failed to pay the rent within the prescribed period; and that the respondent No. 3 by his evidence had proved the case set up by him in the plaint; and that the petitioner was defaulter in payment of rent.

In view of the aforesaid findings recorded in the said judgment and order dated 982002, the said Suit filed by the respondent No. 3 was decreed.

Further, in the said judgment and order dated 3092002, the learned Additional District Judge, Court No. 4, Deoria considered the material on record, and inter alia, held in the said judgment and order dated 3092002 that no good ground was made out for interference with the judgment and order dated 982002.

Having perused the judgments and orders passed by the Courts below, I am of the opinion that the findings of fact have been recorded by the Courts below on the question of service of notice and default in payment of rent. No illegality or perversity has been shown in the said findings recorded by the Courts below. No interference is, therefore, called for with the said judgments and orders passed by the Courts below.

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is dismissed accordingly.

W.P. dismissed.