JUDGMENT :

1. Heard Sri Atul Dayal, learned Senior Counsel, assisted by Sri Prakhar Tandon, learned counsel for the petitioners-defendants and Sri. Sumit Srivastava, learned counsel for the respondents-plaintiffs.

2. Present petition has been filed seeking the following relief:

“i. Set aside the impugned order dated 16.08.2018 passed by learned trial court in SCC Suit No. 266 of 2007.

ii. Set aside the impugned order dated 15.12.2022 passed by the learned revision court in SCC Revision No. 120 of 2018.”

3. Since, only legal question is involved in this matter, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.

4. Brief facts of the case are as follows:

5. The original landlord Late Sudha Mehra filed SCC Suit No. 266 of 2007 against the original tenant Late Munnu Lal seeking ejectment and recovery of arrears of rent upon which, defendant-original tenant has filed written statement in the year 2010. During the pendency of the suit, original plaintiff and defendant died and substitution applications had also been allowed.

6. Plaintiff-respondent filed application 58-Ga dated 09.07.2015 under Order XV Rule 5, CPC to srtike off the defence of the petitioner-defendant upon which, objection paper No. 59-Ga was filed by the petitioner-defendant. Application 58-Ga was allowed vide first impugned order dated 16.08.2018 upon which, petitioner-defendant preferred SCC Revision No. 120 of 2018 on 27.09.2018. During the pendency of the revision, petitioner-defendant has also filed application 24-Ga dated 28.09.2018 seeking permission of the Revisional Court to deposit the entire amount of rent due on the ground that due to incorrect advice of counsel, he has not deposited the rent as required under Order XV Rule 5 CPC. The Revisional Court vide judgment and order dated 15.12.2022 has dismissed the SCC Revision No. 120 of 2018, hence present petition.

7. Aforesaid facts are undisputed between the parties.

8. Learned Senior Counsel appearing for petitioners-defendants submitted that there is no dispute on the point that from the date of first hearing to the dismissal of the revision vide order dated 15.12.2022, petitioner-defendant has deposited the rent before the court under Section 30 of the Act No. 13 of 1972(hereinafter referred to as, 'Act of 1972').

9. He next submitted that under incorrect advice of the counsel, petitioner-defendant could not deposit the rent before the SCC Court and the mistake so committed by the petitioner-defendant is bonafide due to ill advice of the counsel. Therefore, it is required on the part of the Revisional Court to allow Application 24-Ga and permit the petitioner-defendant to deposit the rent before the SCC Court. He firmly submitted that any order passed under the provision of Order XV Rule 5 CPC is penal in nature, therefore, while passing such order, Court must consider the factum of the bonafide. In the present case, there is no dispute on the point that rent was deposited before the Court under Section 30 of Act of 1972, therefore, same must have been considered while deciding the Revisions along with Application 24-Ga by the Revisional Court. Any order passed by the Revisional Court ignoring the bonafide is bad and liable to be set aside.

10. He further submitted that in Order XV Rule 5 CPC, word 'may' has been used, which indicates that the provision is discretionary in nature and not mandatory. Therefore, it is required on the part of the Revisional Court to consider each and every aspect including the bonafide, i.e. default made due to willful failure or deliberate default or volitional performance. In case it is bonafide, it is required on the part of the Court not to strike off the defence.

11. In support of his contention, Sri Atul Dayal, learned Senior Counsel has placed reliance on the judgment of Apex Court in the matter of Bimal Chand Jain Vs. Gopal Agarwal: 1981 0 Supreme(SC) 347, Asha Rani Gupta Vs. Vineet Kumar: 2022 0 S