The delay in rent deposit may be condoned if the landlord withdraws the amount, and the court has jurisdiction to interpret procedural rules in favor of the defendant.

Heard learned Counsel for the parties.

2. This is tenants writ petition directed against orders passed by Judge Small Causes Court and Additional District Judge, Saharanpur striking off the defence of the tenant-petitioner. Landlords- respondent Nos. 3 to 5 Suresh Chandra and another filed S. C. C. Suit No. 31 of 1983 against tenant- petitioner. In the said suit an application was given by the plaintiff for striking off the defence of the tenant-petitioner under Order XV, Rule 5, C. P. C. The default was that after depositing the rent within time until 31. 12. 1984, the rent for the whole year of 1985 was deposited on 16. 8. 1985. Tenant pleaded that suit was dismissed in default on 19. 7. 1984 and thereafter it was restored without intimation to the tenant on 28. 9. 1984 and thereafter the suit was transferred to Civil Judge, Saharanpur and petitioner came to know about the transfer on 3. 1. 1985. The Trial Court held that on 3. 1. 1985 and 9. 5. 1985 presence of both the parties was noted on the order sheet.

3. It was further contended by the tenant that even though he deposited the rent late but it had been withdrawn by the landlord.

4. Ultimately defence was struck off by the J,s. C. C. /iind Additional Civil Judge, Saharanpur through order dated 3. 3. 1986. Against the said order petitioner filed S. C. C. Revision No. 92 of 1986 which was dismissed by Illrd Additional District Judge, Saharanpur on 14. 10. 1985 hence this writ petition.

5. Learned Counsel for the respondent has vehemently supported the im pugned orders. Learned Counsel has further argued that release application under section 21 of the Act was also filed against the tenant which was al lowed, appeal was dismissed thereafter writ petition was dismissed. However, afterwards review application was filed in the writ petition and thereupon matter was remanded to the prescribed authority to consider some other aspects also. Learned Counsel has further stated that after remand in review by this Court tenant is delaying the proceedings.

6. However, proceedings under section 21 of the Act are quite distinct and they cannot have any bearing upon the instant writ petition which is directed against orders striking off the defence.

7. In my opinion as landlord withdrew the amount hence delay in making the deposit stood condoned or deserved to be condoned.

8. Moreover, the language of Order XV, Rule 5, C. P. C. is as per-emptory as language of Order VIII, Rule 1, C. P. C. However, interpreting the latter provision Supreme Court in Kailash v. Nanku, 2005 (4) SCC 480=2005 (29) AIC 95 (SC)=2005 SCFBRC 248 and in several other subsequent authorities has held that the Court has got jurisdiction to take written statement on record for sufficient reason but on heavy cost even after 90 days of service of summons upon the defendants. Same principle may be applied to Order XV, Rule 5, C. P. C.

9. Accordingly, writ petition is allowed. Delay in making the deposit is condoned on payment of Rs. 5,000/- as cost which shall be paid to the landlord or to his learned Counsel on the next date before the Trial Court.

10. It is further directed that entire arrears of rent at the admitted rate due till 31. 8. 2008 after adjusting any amount already deposited shall be de posited before the J. S. C. C. by the next date for immediate payment to the land lord-respondent.

11. In case of default in compliance with any of these conditions, this order shall stand automatically set aside and writ petition shall stand dismissed. .

12. Writ petition is accordingly allowed. Both the impugned orders are set aside. Both the parties are directed to appear before the Trial Court on 29. 9. 2008. The Trial Court shall decide the suit very expeditiously. Absolutely no unnecessary adjournment shall be granted to any of the parties. If the Court below is inclined to grant any adjournment in any form to any of the parties, then it shall be on very heavy cost, which shall not be less than Rs. 750/- p