Judgment

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 rent and has also failed to make any representation within the terms of R. 5 of O. XV, civil P. C.? That question is raised in this defendants 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.

2. 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 that the appellants defence be struck off in view of R. 5. of O. XV, Civil P. C. inasmuch as the appellant had committed 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 deposited in accordance with the relevant provision of sub-rule (1) of R. 5 of O. 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 had failed to make any representation permitted him by sub-rule (2) of R. 5 of O. XV within the time prescribed in that provision. Following a ruling of the Allahabad High Court that in those circumstances the court was obliged to strike off the defence, the 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, Civil Revision No. 356 of 1978 decided on October 30, 1980 : (reported in 1981 All LJ 82) affirmed the order of the trial court.

3. Rule 5 of Order XV, Civil P. C., 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 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 The Rule was repealed by U. P. Act No. 57 of 1976 and was re-enacted as follows :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 off defence on failure to deposit admitted rent, etc. (1) In any suit by a lessor for the eviction of a lessee after the 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 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 the court may subject to the provisions of sub-rule (2) strike off his defence.

Explanations 1 to 3 x x x x

(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 ten days of the first hearing or of the expiry of the week referred to in sub-section (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 ded