Sibghat Ullah Khan, J.—

Heard learned counsel for both the parties.

This is landlord's writ petition arising out of S.C.C. Suit No.140 of 1997, Mahadeo Singh Vs. Smt. Sona Devi. The suit was filed for eviction of the tenant respondent No.3, Smt. Sona Devi for eviction from the tenanted accommodation consisting of a room, rent of which is Rs.40/- per month. The room was let out by Mahadeo, father of the petitioner to late Raja Ram, husband of defendant respondent No.3. The suit was filed for eviction on the ground of default and for recovery of arrears of rent. J.S.C.C., Lucknow through judgment and decree dated 10.05.2007 held that tenant was not defaulter as after receiving the notice she had sent the rent through money order, which was refused by the landlord, however the suit for recovery of arrears of rent was decreed. Against the said decree, landlord petitioner filed S.C.C. Revision No.26 of 2007. A.D.J., Court No.14, Lucknow through judgment and order dated 13.02.2009 dismissed the revision, hence this writ petition.

The main point argued by learned counsel for landlord petitioner is that the courts below wrongly refused to strike off the defence of the tenant.

In the plaint, it was asserted that rent was not paid since November, 1996. The defendant pleaded that as Mahadeo refused to accept the rent of November, 1996, hence it was sent through money order on 16.12.1996. Thereafter, rent of November and December, 1996 was sent through money order on 16.01.1997. Thereafter, rent from November 1996 to January, 1997 was sent through money order dated 17.02.1997. All these money orders were refused.

Notice of termination of tenancy and demand of rent was sent on 18.03.1997. It was also alleged by the tenant that on 02.04.1997, rent from November, 1996 was sent. From the perusal of the money order coupons and receipt containing refusal of Mahdeo, the courts below held that the rent was in fact sent but was refused to be accepted.

Issue No.5 related to Order XV Rule 5, C.P.C. The tenant defendant on 23.04.1999 sought permission to deposit the rent through tender, however the tender was accepted/passed on 26.08.2000 and thereafter the rent was deposited. Written statement was filed on 05.02.1998. The trial court held that tender was submitted when evidence was going on, hence deposit was not made on the first date of hearing. Thereafter, the trial court held that before filing of the suit tenant had sent the rent through money order, which was refused and tender was also submitted even though quite late, which showed that the intention of the tenant was to deposit the rent and after 26.08.2000, the rent was constantly deposited. On this point, lower revisional court in para-12 of its judgment held that no application was filed by the landlord for striking off the defence of the tenant. The lower revisional court fully agreed with the view of the trial court.

Provision of striking off the defence under Order XV Rule 5, C.P.C. (as added by U.P.) is discretionary as held by the Supreme Court in "Bimal Chand Jain v. Gopal Agarwal" AIR 1981 SC 1657. Similar view has been taken in respect of similar provision of West Bengal Act in Food Corporation Of India, Etc. ... vs State Of Kerala, AIR 2002 SC 1252. In this regard reference may also be made to Kamla Devi Vs. Vasdev AIR 1995 SC 985.

Even though technically at the time of arguments also, plea of Order XV Rule 5, C.P.C. could be raised, however in normal course such an application should have been filed (and is normally filed) before the start of the evidence.

In any case in exercise of writ jurisdiction it is not appropriate to interfere in the exercise of discretion by the courts below refusing to strike off the defence of the tenant. From the perusal of record, it is abundantly clear that rent was repeatedly (every month) sent by the tenant but refused by the landlord. In such situation, it would be quite unjust and harsh to brush aside the said evidence in the form of public documents (m

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