In cases of delay in depositing rent under Order 15, Rule 5 CPC, the court has the discretion to consider whether the delay was unintentional and whether a representation was made by the tenant explaining the delay. Striking off the defense is not mandatory in every case of delay or lack of a formal representation.

A.B. Srivastava

1. BY means of this writ petition under Article 226 of the Constitution the petitioner tenant has assailed an order dated 17-8-1992 of the J.S.C.C. Jhansi allowing an application under Order 15, Rule 5 CPC of the respondents no. 1 and 2, the landlords, and striking of the petitioner's defence, and an order dated 1-2-1994 of the District Judge, Jhansi confirming the same in revision.

2. THIS writ petition is being disposed of finally at the admission stage as requested by both the parties, the learned counsel for the caveator, respondents no. 1 and 2 stating that he; does not propose to file any counter affidavit in view of the relevant material of being available on record.

Learned counsel for both sidles have been heard.

3. THE SCC Suit for ejectment, arrears of rent from 1-2-1986 and damages was filed by the respondeat against the petitioner. THE petitioner deposited amount under section 20 (4) of the Act 13 of 1972 which he claimed to be the full amount required to be deposited by him. Besides, he also started depositing the monthly amount due in respect of the premises in question as required under Order 15, Rule 5 CPC On 20-11-1987 an application was moved by the respondents to strike of the defence alleging that the monthly' amount has not been deposited regularly. THE petitioner contested this application and on 15-4-1988 also made an application to the effect that he had been depositing monthly rent in accordance with the instructions of his counsel and the delay, if any, in depositing some of the amounts being unintetional, it may be condoned.

4. BEFORE the learned J.S.CC the defendent also pressed for deciding his prayer for being relieved against the liability for eviction in view of the deposit under section 20 (4). The learned J.S.C.C. directed both the questions under section 20 (4) of Act 13 of 1972 and Order 15, Rule 5 CPC to be considered at the stage of final hearing. On revision preferred by the petitioner, however, the District Judge setting aside the said order directed the matter relating to striking of defence under Order 15, Rule 5 CPC to be disposed of first. The J.S.C.C. by his order dated 17-8-1992 rejected the application dated 15-4-1988 of the petitioner holding that the rent from June. 1987 to October, 1987 was deposited on 24-2-1988 and from November, 1987 to January, 1988 was deposited on 24-7-1988. no application for condonation of delay at the time of there deposits was made. As per Rule 5 of Order 15 the rent is required to be deposited within a week from the date it became due and any representation for the due date of deposit. In revision the District Judge by his order dated 1-2-1994 affirmed the said order.

A perusal of the order dated 10-2-1994 of the District Judge would go to show that all alone in his judgment he tried to dilate upon the ingredient relating to the application or otherwise of the provision of section 20 (4) of Act 13 1972 although he was mot seized of the said question, the same not having been decided by the trial Court. On the other hand, he only made a passing reference to the question relating to the validity or otherwise of the order striking of the defence under Rule 5 of Order 15 CPC. The impugned order of the learned District Judge thus is unsustainable being based on no reasons.

5. AS far as the fact of delay tin deposit is concerned, there is no dispute at this stage and it is also apparent from the order of the J.S.CC. that the rent for 5 months at one stretch and three months at another was not deposited within one week from the date of accrual and thus there was a delay. It is also, however, clear from Annexure 'S.A.l to the supplementary affidavit of the petitioner that be made a representation on 15-4-1988 regarding the delay, before the application for striking off the defence was considered. The ground stated therein was that the petitioner acted on the Instructions of his counsel in the lower court in the matter of deposit of ren