SATISH CHANDRA, C. J.

A learned Single Judge has referred this case to a Division Bench because he found conflict of opinion in this Court amongst single Judges. The question is whether the Court has discretion not to strike off the defense in case the tenant has made default in depositing the rent and has failed to make any representation within the prescribed time. In Mathura Prasad v. Vikramajit Singh (1978 A. W. C. 523), a learned Singh Judge held that the Court has discretion to strike off the defense if the circumstances so demand. On the other hand, in Mrs. S. Abel v. District Judge and others (A. I. R. 1980 Alld. 302.) another learned Single Judge held that under order XV, Rule 5 C. P. C. if the tenant has defaulted and has made no representation the Court has no option but to pass an order striking off the defense.

In the present case, the defendant tenant admittedly committed default in depositing the rent at least for the month of September, 1977 which should have been deposited within time, that is to say by October 7,1977. It is further undisputed that the tenant did not make any representation for con doning the delay.

Order XV, Rule 5 C. P. C. was first enacted by the U. P. Civil Laws (Amendment) Act, 1972. It, in substance provided that the tenant should deposit the admitted amount of rent or compensation at or before the first hearing of the suit and also deposit the monthly rent regularly, else his defense was liable to be struck off. It further provided that the tenant who has committed default may make a representation and the Court, after considering it, could allow him further time to make the deposit.

Order XV, Rule 5 was repealed and re-enacted by U. P. Act No. 57 of 1976 which came into force on January 1, 1979. The provisions as re-enacted is as follows :

"5. Striking off defense on failure on deposit of admitted rent, etc. (1) in any suit by a lessor for the eviction of a lessee after 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 regularly deposit 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 sub-rule (2) strike off his defence.

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

Explanation 2-The expression entire amount admitted by him to be due means the entire gross amount whether as rent of 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 lessors account and the amount, if any, deposited in any Court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3-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 deductions except the taxes if any, paid to a local authority in respect of the build ing on lessors account.

(2) Before making an order for striking off defense, 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 (i) as the case may be.

(3) The amount deposited under this rule may at any time be with drawn by the plaintiff;

Provi

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