Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 30 of 2011 Vipin Kumar Verma S/O Late Raja Ram Verma, Resident of Mohalla-Chahashiri, District Bijnor (U.P.) present resident of Badarinath Road, Main Bazar, Rudraprayag. … Defendant-Revisionist. Versus Shri Ramesh Prasad Kala, S/O Late Ram Prasad Kala, Resident of Appar Bazar, Rudraprayag, District Rudraprayag. … Plaintiff-Respondent. Mr. Pankaj Purohit, Advocate learned counsel for the revisionist. Mr. R.P.Nautiyal, Advocate, learned counsel for the respondent. Date July 14, 2011. Hon’ble B.S.Verma, J. (Stay Application No. 4643of 2011) This revision under Section 25 of the Provincial Small Cause Courts Act is directed against the order dated 26-4-2011 passed by the Judge Small Causes Court/District Judge Rudraprayag (for short the J.S.C.C.) in S.C.C. Suit No. 01 of 2010 whereby the application of the plaintiff (paper no. 19 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. 1 of 2010 has been filed by the plaintiff-respondent against the revisionist-defendant for eviction and for recovery of arrears of rent and damages. An application (19-C) was moved by the plaintiff under Order 15, Rule 5 of the C.P.C. for striking off the defence of the defendant on the ground that the defendant has defaulted in depositing the entire dues as provided under Order 15, Rule 5 C.P.C. It appears that the suit was filed on 21-9-2010 and 13- 10-2010 was fixed in the suit. On that date, the defendant sought adjournment for filing written statement and 9-11-2010 was fixed. The defendant again sought adjournment by filing adjournment application on 9-11-2010. learned J.S.C.C. fixed 30-11-2010. On that date, the application 19-C with a prayer to strike off the defence was filed by the plaintiff-respondent. 2 I have heard learned counsel for the parties and perused the material placed before this Court. A perusal of the record shows that the defendant deposited an amount of Rs. 25,000/- on 9-2-2011. The learned J.S.C.C. after hearing both the parties has held that the defendant has not deposited the arrears of rent, etc. on the date of first hearing but the same has been deposited after the arguments were heard on the application for striking off the defence. Ultimately, the learned J.S.C.C. has held that the 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 26-4-2011. Learned counsel for the revisionist 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 revisionist 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 3 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 that the defendant has deposited an amount of Rs. 25,000/- on 9-2-2011. In the impugned order the learned J.S.C.C. has not recorded a finding that the deposit made by the defendant is quite insufficient. Learned counsel for the revisionist has urged that although in the notice issued by the J.S.C.C. it was mentioned that the date fixed for final disposal is 13-10-2010, but mentioning of the date for final disposal as 13-10-2010 is not a proof that the learned J.S.C.C. had applied its mind to the suit on 13-10-2010. Learned counsel also pointed out that in his objection against the application under Order 15, Rule 5 C.P.C., the defendant in paragraph no. 3 has clearly stated that the defendant had been sending the amounts of monthly rent regularly through Money Order but the same are being refused by the plaintiff. Learned counsel for the defendant-revisionist further argued that since points for determination/issues have not yet framed in the suit, therefore, it cannot be said that the date of first hearing had already gone. Learned counsel for the plaintiff-respondent has not disputed that points for determination had not been framed till the impugned order dated 26-4-2011 in the suit has been passed by the learned J.S.C.C. This submission of the learned counsel for the revisionist has some force. The learned J.S.C.C. appears to have lost sight of this fact that the revisionist-defendant has no intention to be a defaulter in payment of rent and undisputedly an amount of Rs. 25000/- has been deposited in the court, when the money orders sent by the defendant to the plaintiff were refused to be accepted. Moreover, the learned J.S.C.C. has nowhere pointed out as to on which date the J.S.C.C. had applied its mind in the plaint allegations/suit. In my considered view, under sub-rule (2) of Rule 5 of Order 15 C.P.C. the intention of the tenant to pay the rent 4 and other dues have to be taken into account. In the case at hand, it can very safely be held that the defendant-revisionist has no intention to commit default in payment of rent, etc. Following the ratio of the Apex Court verdict in the case of Bimal Chand (supra), the defence of the revisionist-defendant ought not to have been struck off by the learned J.S.C.C. On the other hand, the learned counsel for the respondent-plaintiff has submitted that the impugned order has been rightly passed by the learned J.S.C.C. and also contended that the provision of Rule 5 of Order 15 C.P.C. is mandatory and since there is non-compliance of Rule 5 by the defendant-revisionist, the revisionist is not entitled to the discretion of the Court. In support of his arguments, the learned counsel for the respondent-plaintiff has placed reliance in the case of S.K.Masood alias Zafar and others Vs. Wahid Ahmad Ansari and others [1997(30), A.L.R., Page 682], wherein the Allahabad High Court in paragraph No. 23 has held as under:- “23. Admittedly, rule 5 is mandatory because of the nature of the expression used therein. The Court while striking out defence has to exercise its discretion judiciously. In case the provision is not complied with evil consequences would visit the defendants-applicants. The court has no alternative in case of non- compliance of rule 5 by the defendants-applicants but to strike off the defence.” Learned counsel for the plaintiff-respondent further placed reliance upon the case of Shyam Sunder Vs. Ravindra Kumar Verma and another [2005 (1) U.D., 685], wherein this Court has held that if the requirements of Section 20(4) of the U.P. Act No. 13 of 1972 were not fulfilled, the defendant cannot be saved from decree of eviction against him. The ratio of the judgment cannot be disputed. In the case at hand, as mentioned earlier, the defendant-revisionist has not intended to be a defaulter in payment of rent and other expenses etc. 5 Besides above, it is also pertinent to mention that in the impugned order the learned J.S.C.C. has mentioned that the defendant had not filed his written statement till the date of impugned order i.e. 26-4-2011. On the other hand, the learned counsel for the defendant-revisionist has annexed copy of written statement as Annexure No.4 to the affidavit filed in support of stay application. A perusal of Annexure No. 4 goes to show that on 7-2- 2011, the defendant had filed his written statement. This affidavit of the revisionist has not been controverted by the plaintiff- respondent, therefore, the averments made in the affidavit cannot be ignored and thrown out. In the above facts and circumstances of the case, I am of the considered view that the revisionist is 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. is liable to be set aside and the revision deserves to be allowed outright. The revision is allowed. Costs easy. The impugned order dated 26-4-2011 striking off the defence is set aside. The written statement already filed by the revisionist on 7-2-2011 before J.S.C.C. (copy Annexure No.4 to the affidavit) be taken on record. The learned J.S.C.C. shall proceed further to decide the suit on merits in accordance with law, expeditiously as far as possible. (B.S.Verma, J.) RCP