The power to strike off the defence under Order XV, Rule 5, C. P. C. is not to be exercised in a mechanical or perfunctory manner. The court must apply its mind to all the facts and circumstances appearing in the case and if it finds good reasons, it may decline to order the striking off defence.

( 1 ) THIS is tenants writ petition for issuing a writ of certiorari quashing the orders dated 25. 9. 1981 and 16. 9. 1980 passed by respondent Nos. 1 and 2 respectively.

( 2 ) THE predecessor of respondent Nos. 3 to 11 filed suit for eviction of the petitioner in the Court of Judge. Small Causes, Dehradun-respondent No. 2 on the ground of default in payment of arrears of rent alleging that rent from 1. 8. 1969 to 31. 1. 1972 amounting to Rs. 210 remained unpaid despite service of notice of demand on the petitioner. The tenancy of the petitioner was also terminated by the same notice. The defence of the petitioner was lhat he has been paying rent to the plaintiff regularly and after the receipt of notice the entire arrears of rent were tendered on three different occasions in the presence of three different witnesses but the landlord refused to accept the same. Ultimately a sum of Rs. 224 (rent for 32 months) was sent on 4. 4. 1972 through money order but the same was also not accepted by the plaintiff. Thereafter the tenant remitted again a sum of Rs. 231 through another money order but that too was received back on refusal by the landlord. It was further alleged that the notice of termination of tenancy was illegal.

( 3 ) IT appears that in the trial court after when both the parties had adduced their evidence, an application purporting to be under Order XV, Rule 5, C. P. C. was moved by the plaintiff for striking off the defence of the petitioner on the ground that he had not deposited the monthly rent in time as contemplated under the said provisions. It further appears that no representation in writing was made on behalf of the petitioner explaining the delay which had occurred in making some of the monthly deposits but it was contended on his behalf that since the parties have already adduced evidence, the matter should be decided on merits and there has been no wilful default in making monthly deposits. The trial court struck off the defence of the petitioner holding that on account of the default committed in making monthly deposits in time, the defence of the defendant-petitioner was liable to be struck off and thereafter ignoring the evidence of the defendant altogether, the trial court on the basis of the plaintiffs evidence decreed the suit for eviction by the judgment dated 16,9. 1980. The revision filed against the said judgment has also been dismissed by the respondent No. 1 by the order dated 25. 9. 1981.

( 4 ) PARTIES counsel have been heard at length and record has also been perused.

( 5 ) LEARNED counsel for the petitioner. Sri A. D. Prabhakar, argued before the Court that non-consideration of defendants evidence on account of the order of the trial Court striking off the defence of the petitioner has resulted in gross mis-carriage of justice. He attacked the order of striking off the defence mainly on two grounds : firstly, by contending that the application of the landlord for striking off the defence under Order XV. Rule 5. C. P. C. was not maintainable after when the parties had adduced evidence. The second ground of attack is that the trial court was not Justified in striking off the defence merely on the ground of absence of a representation in writing by the petitioner. He argued that the facts and circumstances appearing in the case did not call for exercise of discretion by the trial court in favour of the landlord. On the other hand learned counsel for the respondents-landlord argued that the matter of striking off the defence was within the discretion of the Courts below and once that discretion has been exercised in a proper and legal manner, this Court in exercise of its writ jurisdiction should not interfere.

( 6 ) IT is an undisputed fact that while decreeing the suit for eviction on the ground of default in payment of rent, both the Courts below have not taken into consideration the defence and the evidence adduced in support thereof as the defence had been struck off by a sep