The court has discretion in striking off the defense under Order 15 Rule 5 of CPC and should consider the facts and circumstances of each case.

JUDGMENT :

1. This is tenants’ petition against the judgment and order dated 11.11.2016 passed by 5th Additional District Judge, Haridwar in SSC Revision No. 35 of 2015. By the said judgment, order passed in S.C.C. Suit No. 4 of 2009 by learned Judge, Small Cause Court/Civil Judge (J.D.), Haridwar was set aside and the matter was remanded back to reconsider on landlord’s application filed under Order 15 Rule 5 CPC.

2. The order passed by learned Judge Small Cause Court on 15.07.2015, which was set aside by Revisional Court is on record as Annexure 5 to the writ petition. Perusal of the said order reveals that landlord/plaintiff had filed an application under Order 15 Rule 5 CPC with the contention that the tenant has not complied the provision contained in Order 15 Rule 5 CPC, therefore, his defence deserves to be struck off. Petitioners filed objection to the said application stating that they had given admitted rent between 01.02.2009 to 31.08.2009 to learned counsel for the plaintiff, and thereafter, the admitted rent is being deposited in court. Learned Judge, Small Cause Court rejected the application filed by landlord on the ground that the lis should be decided after hearing both the parties and the defence of the tenant should not be struck off merely on the ground of slight delay in deposit of admitted rent by tenant. A categorical finding was recorded by learned Judge, Small Cause Court that defendant/tenant has deposited entire admitted rent upto 30.06.2015.

3. Landlord challenged the said order passed by learned Judge, Small Cause Court by filing revision under Section 25 of the Provincial Small Cause Courts Act. Learned 5th Additional District Judge, Haridwar has allowed the revision filed by landlord and set aside the order passed by Judge, Small Cause Court. Feeling aggrieved by the order passed by revisional court, tenant has approached this Court.

4. Before proceeding any further, the provision contained in Order 15 Rule 5 of CPC, as applicable in State of Uttar Pradesh and Uttarakhand, is reproduced below:-

“5. Striking off defence on failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.

Explanation 1. The expression ‘first hearing’ means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2. The expression ‘entire amount admitted by him to be due’ means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor’s account and the amount, if any, paid to a acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3. (1) The expression ‘monthly amount due’ means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lesso