Nathi Lal vs District Judge, Jhansi and Others

Sudhir Agarwal, J.—All these four petitions involve common questions of law and facts and, therefore, as agreed by learned counsel for the parties they are being decided by this common judgment under the Rules of the Court at this stage.

In all these cases the defence of petitionerdefendants has been struck off in purported exercise of power under Order XV Rule 5 C.P.C. (inserted by U.P. Act No. 37 of 1972 and substituted by U.P. Act No. 57 of 1976 w.e.f. 04.01.1977) since the petitionerdefendants were found to have breached the second requirement of Order XV Rule 5 C.P.C. and have not deposited monthly rent during pendency of proceedings for certain periods.

I have heard Sri Gulrez Khan and Sri J.H. Khan, Advocates for the petitioners and Sri K.K. Tiwari, learned counsel for respondent no. 3.

Learned counsel for the petitioner submitted that the first condition to attract Order XV Rule 5 is that there must be an existing relationship of landlord and tenant between parties before the court but when the very relationship is an issue, Order XV Rule 5 cannot be resorted. He further submitted that the date of first hearing would be the date on which court applied its mind to the case which ordinarily would be the time when either issues are determined or evidence is taken, as held in Ved Prakash Wadhwa Vs. Vishwa Mohan, 1981(3) SCC 667; Sham Lal Vs. Atme Nand Jain Sabha, 1987(1) SCC 222; Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor, 1993(4) SCC 406; Mangat Singh Trilochan Singh Vs. Satpal, 2003(8) SCC 357; Kanwar Singh Saini Vs. High Court of Delhi, 2012(4) SCC 307; and, Smt. Badami Vs. Bhali, 2012(5) SCALE 715. In the present case he submitted that all these aspects have been misappreciated, vitiating the impugned orders which are liable to be set aside.

Sri K.K. Tiwari, learned counsel appearing for respondent no. 3, on the contrary, submitted that it is not the mere factum of denial but it is the substance in challenge which would determine application of Order XV Rule 5. A bogus or frivolous challenge by a tenant about his relationship would not exclude application of Order XV Rule 5 in a particular case, as has been found in the present case by courts below. He further contended that the date of first hearing which has been taken in the case was the date on which the court was to apply its mind and the mere fact that petitionerdefendants filed written statement after a long time would not change the date of first hearing.

Having gone through the rival contentions, I find that this matter can be decided/disposed without entering into all the aforesaid issues and for this approach learned counsel for the parties have also agreed.

It cannot be disputed that the consequences of striking off defence are extremely serious. It prevents adjudication of a matter on merits after due opportunity to both sides. It is well established that step to strike off defence must be taken as a last resort and as far as possible such a consequence should be avoided (See Ashwini Kumar Bahl Vs. Sardar Harbhajan Singh Chowla, 2003(10) SCC 293).

Considering the peculiar facts and circumstances of the case and as agreed by learned counsel for the parties, I dispose of all these writ petitions with the directions as below:

(i) Within one month from today the petitionerdefendants in respective suits shall deposit entire rent and damages etc., as due till the date of this judgment, with court below.

(ii) In case of such deposit, the orders impugned in these writ petitions, to the extent of striking off defence of petitionerdefendants, shall stand set aside/modified. The Trial Court shall proceed with suit by restoring the defence of petitionerdefendants and in accordance with law.

(iii) The subsequent rent/damages shall be continued to be paid by petitionerdefendants as and when the same become due.

(iv) The plaintiffrespondent shall have the liberty to move an application before the Trial Court, if it finds that amount deposited by petitionerdefendants, is less than the actual due amount, and in case any such application is filed, the same would be considered by Trial Court after giving due opportunity of hearing to both sides. If it finds that any further amount is due or less deposited, the deficit, if any, shall be paid by petitionerdefendants within fifteen days thereafter.

(v) In case of failure of deposit of amount, if any, as directed above in (i),(iii) and (iv), these writ petitions shall be deemed to have been dismissed automatically without any further reference to this Court and the court below shall be at liberty to decide the suit accordingly.

No costs.