IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 38 of 2011 Ashok Kumar Jauhari S/O Sri Krishna Kant Jauhari 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. 5830 of 2011) Learned counsel for the revisionist files supplementary affidavit. The same is taken on record. 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. 59 C) moved under Order 15, Rule 5 C.P.C. has been allowed and the objections filed by the defendant (paper no. 61-C) have been rejected. A perusal of the record shows that S.C.C. Suit No. 1 of 2007 has been filed by the plaintiff-respondent against the revisionist-defendant for eviction and for recovery of arrears of rent and damages. An application (59-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 complied with the provisions of Order 15, Rule 5 C.P.C. and has not at all deposited any amount on the first date of hearing and thereafter before the J.S.C.C. The defendant filed objection (paper no. 64-C) and asserted that the defendant has already deposited the entire rent and expenses etc. in the court on 21-12-2010. 2 A perusal of the record shows that on 21-12-2010, the defendant had moved an application before the J.S.C.C. stating therein that the defendant is ready to deposit the entire amount due in compliance of the application of the plaintiff moved under Order 15, Rule 5 C.P.C. The learned J.S.C.C. after perusal of the record has found that the revisionist was obliged to deposit the entire amount due along with cost and interest on the first date of hearing, i.e. 11- 4-2007. 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 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 3 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 any amount on the first date of hearing or till the date when the order striking off the defence of the defendant has been passed by the J.S.C.C. Moreover in his objection filed against the application under Order 5, Rule 15 C.P.C. (Annexure 4 to the revision petition), the defendant alleged to have deposited the entire rent along with expenses and interest in the Court by way of Challan and he intends to deposit the same, but the defendant had taken time to file objection. However, the defendant had not deposited any amount before the J.S.C.C. No such representation irrespective of the time frame as envisaged by sub-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 entire amount due on the first date of hearing or thereafter. Learned counsel for the revisionist has further relied upon the case of Siraj Ahmad Siddiqui Vs. Prem Nath Kapoor [ 1993 (2) Allahabad Rent Cases, Page 451 (Supreme Court)], wherein the Apex Court has held in paragraph 16 as under:- “16. The date of first hearing in the instant case is not, therefore, 24th February, 1984 when the trial Court passed orders, on the application of the appellant for time to file a written statement and permission to deposit the full amount of the arrears. The contention of learned Counsel for the respondents to this effect must be rejected. Now, 24th February, 1984 was a date earlier than the date of hearing mentioned in the summons, namely, 28th February, 1984. The trial Court gave to the appellant time until 24th 4 March, 1984 to file his written statement and deferred the date of final hearing to 12th April, 1984, expressly cancelling the date 28th February, 1984 given in the summons. In our view, whether or not the provisions of Section 20(4) of the said Act were complied with by the appellant must be judged by the date of hearing so fixed. The full amount of the arrears were deposited on 5th March, 1984; there was, therefore, compliance by the appellant with the provisions of Section 20(4) of the said Act prior to the earliest date fixed by the Court for the defendant to take the first step in the suit.” The ratio of the Apex Court judgment cannot be disputed as to what would be the first date of hearing. But from a perusal of the application paper no. 61-C dated 21-12-2010 moved by the defendant-revisionist, it is obvious that this application has been made after the plaintiff had already applied for order to strike off the defence of the defendant by his application paper no. 59-C. Even on 21-12-2010, the defendant had not tendered the entire amount due before the J.S.C.C. In his application (paper no. 61-C) the defendant had not explained any thing as to why no deposit of entire rent due, expenses and interest had been made by him so far. The revisionist has also not disclosed the circumstances, which prevented him from making the deposit earlier. Learned counsel for the respondent has submitted that the points for determination had already been framed by the J.S.C.C. and the plaintiff has adduced his evidence but no deposit has been made by the defendant on the date of framing of points for determination, when the learned J.S.C.C. had applied his mind. Since the trial has commenced, therefore, the application under Section 20(4) of the Act has rightly been rejected. The case of Siraj Ahmad Siddiqui (supra) is not of any help to the petitioner because the application was not moved on the first date of hearing. 5 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) 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