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2011 Supreme(UK) 240
2011 (2) UAD 51
UTTARAKHAND HIGH COURT
B.S. Verma
Writ Petition No. 252 of 2007 (M/S)
RAMESH CHAND & ORS. – Petitioner
Versus
GOPAL DAS TANEJA – Respondent
Decided on : 25.04.2011
For the Petitioner:Mr. Gopal Krishan, Advocate
For the Respondent: Mr. M.S. Pal, Sr. Adv., assisted by Mr. Sarvesh Agarwal, counsel
Headnote:Civil Procedure Code, 1908, Or. 15, R. 5 — Failure to deposit admitted rent within stipulated period in suit for eviction of lessee after determination of his lease — Striking of defence for — Order for — Requirements for — Court has to consider the representation made by the defendant on merits before making an order striking his defence and decide whether the defence should or should not be struck off — Court is vested with discretion entitling it not to strike off the defence even in absence of any representation having been made in that regard if on facts and circumstances already existing on record it finds good reason for not doing so. (Paras 6, 7)
nhokuh izfØ;k lafgrk] 1908] vkns'k 15] fu;e 5 & fdjk,nkjh lekIr dh tkus ij csn[kyh ds okn esa izkf/kÑr le; ij fdjk,nkj }kjk LohÑr fdjk;k tek uk djus ij mldh fMQSUl dkV nh tkus ¼strike off dh tkus½ ds fy, vkns'k ikfjr djus ds fy;s 'krs± & U;k;ky; dks mlds igys izfroknh ds vH;kosnu ij fopkj djuk rFkk mls xq.k nks"k ds vk/kkj ij fu.khZr djuk fd mldh fMQSUl dkVh tkuh pkfg, vFkok ugha] vfuok;Z gS & ,sls vH;kosnu ds vHkko esa Hkh U;k;ky; esa foosdkf/kdkj fufgr gS fd og i=koyh ij igys ls miyC/k rF;ksa o ifjfLFkfr;ksa ds vk/kkj ij mfpr dkj.k ikrk gS rks izfroknh dh fMQSUl LVªkbd vkQ uk djsA ¼izLrj 6] 7½
Hon’ble B.S. Verma
Heard learned counsel for the parties.
2. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 13.09.2006, passed by Judge Small Causes Court/Civil Judge (Sr. Div.), Udham Singh Nagar, passed in J.S.C.C. suit No. 03 of 2002 and also for quashing order dated 07.03.2007, passed by Judge Small Cause Court/District Judge, Udham Singh Nagar, in J.S.C.C. revision No. 25 of 2006 and further it is prayed to give direction to Judge Small Causes Court, Udham Singh Nagar to permit the petitioner to adduce evidence of the petitioners and to decide the case in accordance with law.
3. Learned counsel for the petitioner has informed to the Court that in terms of the interim order, passed by this Court, the petitioner was allowed to adduce evidence in defence and evidence has been filed by the petitioner/defendant by filing affidavits, concluded by the court. Now the case is fixed for cross examination of witnesses of petitioner/defendant by plaintiff/respondent. It is further submitted that the tenant has made delayed payment of the rent before the trial court. But this fact is not disputed that no representation for condoning the delay in payment of rent has been moved on behalf of the petitioner before Judge Small Causes Court.
4. Mr. M.S. Pal, Senior Advocate, assisted by Mr. Sarvesh Agarwal, counsel for petitioner, has contended that learned trial court while passing the order dated 13.09.2006, had strike off the defence of the petitioner since there was default in payment of rent. The trial court had considered the documents lists – 44C, 70C, 83C and 88C, whereby challans for payment of rent were filed. After perusal of the above documents, the trial court came to the conclusion that rent of October 2003 was paid on 11.02.2005, rent of November 2003 was paid on 16.03.2005, rent of December 2003 was paid on 11.02.2005 and rent for five months (01.01.2004 to 31.05.2005) was paid on 27.10.2004, rent for seven months (01.10.2004 to 30.04.2005) was paid on 24.05.2005, rent for two months (01.05.2005 to 30.06.2005) was paid on 13.07.2005, rent for two months (01.11.2005 to 31.12.2005) was paid on 17.03.2006, rent for three months (01.03.2006 to 31.05.2006) was paid on 22.08.2006 and rent for three months (01.06.2006 to 31.08.2006) was paid on 25.07.2006. The trial court further observed that after perusal of the challans, it reveals that the rent deposited was not paid within the stipulated period.
5. Learned Senior Advocate, Mr. M.S. Pal has further contended that no such representation for condoning the delay was made before Judge, Small Cause Court, therefore, the petitioner was not entitled to get benefit of Order 15 Rule 5 of C.P.C. and defence of the petitioner was rightly struck off and the revisional court has not committed error of law in rejecting the revision of the petitioner.
6. Learned counsel for the petitioner has submitted that explanation for delay in depositing the rent was given by way of filing an affidavit. He further contended that trial court following the ratio of judgment of Allahabad High Court, allowed application 81-C. It is further contended that the revisional court has rejected the application on the sole ground that no representation was made to condone the delay before the Judge Small Cause Court.
7. Learned counsel for the petitioner, in support of his arguments, has relied upon the judgment of the Apex Court, reported in Allahabad Rent Cases, 1981, Bimal Chand Jain Vs. Sri Gopal Agarwal. Para 6 of the said judgment is reproduced as under :-
“6. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interests thereon at the rate of nine per cent per annum and further, whether or not he admits the rate
