IMPORTANT POINT
It is not open to the High Court to sit in appeal under Article 227 of the Constitution of India to alter such finding of facts and to accept the written statement without any ground.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.

1. This appeal is preferred by the appellants against the judgment and order dated 17th September, 2007 passed by the learned Single Judge, High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 44387 of 2007. By the impugned judgment, the High Court exercised its revisional jurisdiction under Article 227 of the Constitution of India and set aside the orders dated 31st May, 2007 and 9thJanuary, 2006 passed by the District Judge, J.P. Nagar in S.C.C RevisionNo.1 of 2006 and Civil Judge, (S.D.), J.P. Nagar in Suit No. 17 of 1998respectively. Thus, defence of the respondent which was struck off by the Courts below was restored by the High Court.

2. The appellants filed Suit No. 17 of 1998 on 21st September, 1998before Civil Judge (S.D.) for eviction of the respondent-defendant-tenant from the suit premises, the shop located at Mohalla Raju Sarai Kanth Road, Amroha Distt., J.P. Nagar on the ground of arrears of rent and default.

3. Inspite of receipt of notice, the respondent did not choose to file written statement within the specified period. After long delay, the respondent filed his written objection on 3rd April, 1999 against which the appellant-plaintiffs filed an application for striking off the defence on the ground that the respondent failed to deposit the rent, the damages due and the cost of the suit inspite of order dated 16th December, 1998, the first date of hearing and also failed to deposit water tax and house tax and thereby not complied with the provisions under Order XV Rule 5 of the Code of Civil Procedure ('CPC' for short).

4. The learned Civil Judge (S.D), J.P. Nagar by order dated 9th January, 2006 allowed the application of the appellant-plaintiffs and struck off the defence of the respondent.

5. Against the said order, the respondent filed revision application in S.C.C R.No.1 of 2006 before the District Judge, J.P. Nagar in February,2006. The District Judge, J.P. Nagar by impugned order dated 31st May, 2007dismissed the same and affirmed order dated 9th January, 2006 passed by the Trial Court.

6. The respondent thereafter filed a petition under Article 227 of the Constitution of India before the High Court of Judicature at Allahabad registered as Civil Miscellaneous Writ Petition No. 44387 of 2007. The learned Single Judge passed the following order: "Heard learned counsel for the parties. This is tenant's writ petition directed against the order striking off his defence. The Trial Court/JSCC/Civil Judge (S.D.), J.P. Nagar passed the order striking off the defence on 9.1.2006 in SCC Suit No.17 of 1998. Against the said order, petitioner filed SCC Revision No.1 of 2006 before the District Judge, J.P. Nagar and the same was dismissed on 31.5.2007. Defence has been struck off due to some irregularity in deposit of the monthly rent, under the provisions of Order 15 Rule 5 C.P.C.

The provision of Order 8 Rule 1 C.P.C. is also mandatory in nature. However, the Supreme Court has held that still the Court has got jurisdiction and discretion to accept the written statement even after expiry of 90 days from the date of service of summon on payment heavy cost. The same principle may apply to the cases under Order 15 Rule 5 C.P.C. Accordingly, the writ petition is allowed, both the impugned orders dated 31.5.2007 and 9.1.2006 are set aside. The petitioner shall pay Rs.10,000/- as costs and the same shall be deposited by the petitioner before the Trial Court within 6 weeks from today. In case of default, this order shall stand automatically vacated. It is further directed that the Civil Judge (S.D.), J.P. Nagar shall make all efforts to decide the aforesaid suit within six months."

7. Learned counsel for the appellants submitted that the High Court committed a mistake in exercising its jurisdiction under Article 227 to set aside concurrent findings of the two Courts below against the wilful, habitual, consistent, persistent, regular and stubborn defa