IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 37 of 2011 N.K. Vishwas S/O Nishi Kant Vishwas R/O Sadar Bazar, Lansdowne, District Pauri Garhwal. … Defendant-Revisionist. Versus Bhagwati Charan Agrawal, S/O Late Sri Dwarka Prasad Agrawal, R/O Maal Godam Kotdwar, District Pauri Garhwal. … Plaintiff-Respondent. Mr. D.C.S.Rawat, Advocate learned counsel for the revisionist. Mr. L.K.Tiwari, Advocate, learned counsel for the respondent. Date June 15, 2011. Hon’ble B.S.Verma, J. (Stay Application No. 5829 of 2011) Heard learned counsel for the parties. This revision under Section 25 of the Provincial Small Cause Courts Act is directed against the order dated 19-5-2011 passed by the Judge Small Causes Court/District Judge Pauri Garhwal (for short the J.S.C.C.) whereby the application of the plaintiff (paper no. 55 C) moved under Order 15, Rule 5 C.P.C. has been allowed and the objections filed by the defendant have been rejected. A perusal of the record shows that S.C.C.Suit NO. 3 of 2006 has been filed by the plaintiff-respondent against the revisionist-defendant for eviction and for recovery of arrears of rent and damages. An application (55-C) was moved by the plaintiff under Order 15, Rule 5 for striking off the defence of the defendant on the ground that the defendant has not deposited the monthly rent regularly by the 7th day of each month for the previous month before the J.S.C.C. The defendant filed objection and asserted that the provisions of Order 15, Rule 5 CPC are not applicable to the case at hand and the provisions of U.P. Act No. 13 of 1972 are applicable. The defendant has already deposited the entire rent under Section 20(4) of the U.P. Act No. 13 of 1972. The learned J.S.C.C. after perusal of the record has observed that the defendant deposited rent from May 2008 to September 2009 on 22-9-2008 and thereafter no rent has been deposited. Ultimately, the learned J.S.C.C. has held that the 2 defendant has not complied with the provisions of Order 15, Rule 5 C.P.C. Accordingly, the defence of the defendant has been struck off by order dated 19-5-2011. Learned counsel for the petitioner has vehemently argued that the court is obliged to consider the representation of the defendant and if good reason is shown by the defendant for default, the court should not strike off the defence. In support of his contention, the learned counsel for the revisonist has relied upon the Apex Court judgment in the case of Bimal Chand Jain Vs. Gopal Agarwal [AIR 1981 Supreme Court, 1657] wherein the Apex Court has observed that it must be remembered that an order under sub-rule (1) of Rule 5 of Order 15 C.P.C. striking off the defence is in the nature of penalty. A serious responsibility rest on the Court in the matter and the power is not to be exercised mechanically. In the case Puran Chand Vs. Pravin Gupta before the Allahabad High Court [1981, All. L.J., 82], a Division Bench of Allahabad High Court has held that if the representation contemplated by sub-rule (2) of Rule 5 of Order 15 C.P.C. was not made within the time prescribed therein the court had no jurisdiction to entertain a representation made beyond time and to condone the delay in making it. It was also held that where no representation was made, or if made was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter. The Apex Court did not agree with the view taken by the Division Bench of Allahabad High Court and held that “we are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.” The ratio of the Apex Court judgment cannot be disputed. In the case at hand, it is admitted case of the defendant that he did not deposit monthly rent after 22-9-2008. Moreover in his objection filed against the application under Order 5, Rule 15 C.P.C. (paper no. 56-C before the J.S.C.C.), the defendant had not shown his intention to deposit the entire monthly rent due. No such representation irrespective of the time frame as envisaged by sub- 3 rule (2) of Rule 5 of Order 15 C.P.C. was ever made either before the J.S.C.C. or even in revision before this Court, explaining why the defendant could not deposit the monthly rent regularly since after 22-9-2008. Moreover, under sub-rule (2) of Rule 5 of Order 15 C.P.C. the intention of the tenant to pay the rent and the circumstances, which prevented him from depositing the entire dues in time have to be taken into account. In the case at hand, it appears that the revisionist-defendant had no intention to pay the rent to the plaintiff-respondent and no explanation for non-payment has been furnished at all. Even no application has been filed in the revisional court showing readiness of the revisionist to deposit the entire dues. The revisionist has failed to make out a case in his favour. In this view of the matter, it cannot be said that defendant- revisionist was ready and willing to deposit/pay the entire dues right from the first date of hearing as mentioned by the revisionist in Ground (E) and Ground (F) of the revision petition. In any view of the matter, the defendant-revisionist cannot take any advantage of the Apex Court verdict in the case of Bimal Chand (supra). In the above facts and circumstances of the case, I am of the considered view that the revisionist is not entitled to the discretion of the Court not to strike off the defence and that the order striking off the defence passed by the learned J.S.C.C. does not call for any interference in revision by this Court and the revision has no force and is liable to be dismissed outright. The revision is dismissed. Costs easy. (B.S.Verma, J.) RCP