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  REPORTABLE    

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7279 OF 2013 (ARISING OUT OF SLP(C) NO.22265 OF 2007)

BAL GOPAL MAHESHWARI & ORS.      … APPELLANTS

VERUS

SANJEEV KUMAR GUPTA                     …  RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Leave granted.  This appeal is preferred  by  

the appellants against the judgment and order  

dated 17th  September, 2007 passed by the learned  

Single Judge, High Court of Judicature at  

Allahabad in Civil Miscellaneous Writ Petition  

No. 44387 of   2007.   By the impugned judgment,  

the High Court exercised its revisional  

jurisdiction under Article   227 of the  

Constitution of India and set aside the orders

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dated 31st May, 2007 and 9th January, 2006 passed  

by the District Judge, J.P. Nagar in S.C.C  

Revision No.1 of 2006 and Civil Judge, (S.D.),  

J.P. Nagar in Suit No. 17 of 1998 respectively.  

Thus, defence of the  respondent which was struck  

off by the Courts below was restored by the High  

Court.  

2. The appellants  filed  Suit No. 17 of 1998 on  

21st September, 1998 before Civil Judge (S.D.) for  

eviction of the respondent­defendant­tenant from  

the suit premises, the shop located at Mohalla  

Raju Sarai Kanth Road, Amroha Distt., J.P. Nagar  

on the ground of arrears of rent and default.

3. Inspite of receipt of notice, the respondent  

did not choose to file written statement within  

the specified period.   After long delay, the  

respondent filed his written objection on 3rd  

April, 1999 against which the appellant­

plaintiffs filed an application for striking off  

the defence on the ground that the respondent  

failed to deposit the rent, the damages due and  

the cost of the suit inspite of order dated 16th

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December, 1998, the first date of hearing and  

also failed to deposit water tax and house tax  

and thereby not complied with the provisions  

under Order XV Rule 5 of the Code of Civil  

Procedure (‘CPC’ for short).   

4. The learned Civil Judge (S.D), J.P. Nagar by  

order dated 9th  January, 2006 allowed the  

application of the appellant­plaintiffs and  

struck off the defence of the respondent.  

5. Against the said order, the respondent filed  

revision application in S.C.C R.No.1 of 2006  

before the District Judge, J.P. Nagar in  

February, 2006. The District Judge, J.P. Nagar by  

impugned order dated 31st May, 2007 dismissed the  

same and affirmed order dated 9th  January, 2006  

passed by the Trial Court.  

6. The respondent thereafter filed a petition  

under Article 227 of the Constitution of India  

before the High Court of Judicature at Allahabad  

registered as Civil Miscellaneous Writ Petition  

No. 44387 of 2007. The learned Single Judge  

passed the following order:

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“ Heard learned counsel for the  parties.

This is tenant’s writ petition directed  against the order striking off his defence.  The Trial Court/JSCC/Civil Judge (S.D.),  J.P. Nagar passed the order striking off  the defence on 9.1.2006 in SCC Suit No.17  of 1998.   Against the said order,  petitioner filed SCC Revision No.1 of 2006  before the District Judge, J.P. Nagar and  the same was dismissed on 31.5.2007.  

Defence has been struck off due to some  irregularity in deposit of the monthly  rent, under the provisions of Order 15 Rule  5 C.P.C. The provision of Order 8 Rule 1  C.P.C. is also mandatory in nature.  However, the Supreme Court   has held that  still the Court has got jurisdiction and  discretion to accept the written statement  even after expiry of 90 days from the date  of service of summon on payment heavy cost.  The same principle may apply to the cases  under Order 15 Rule 5 C.P.C.

Accordingly, the writ petition is  allowed, both the impugned orders dated  31.5.2007 and 9.1.2006 are set aside.  The  petitioner shall pay Rs.10,000/­ as costs  and the same shall be deposited by the  petitioner before the Trial Court within 6  weeks from today.  In case of default, this  order shall stand automatically vacated.  

It is further directed that the Civil  Judge (S.D.), J.P.Nagar shall make all  efforts to decide the aforesaid suit within  six months.”

7. Learned counsel for the appellants submitted  

that the High Court committed a mistake in  

exercising its jurisdiction under Article 227 to  

set aside concurrent findings of the two Courts  

below against the wilful, habitual, consistent,

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persistent, regular and stubborn defaulter­

tenant. The High Court exceeded its jurisdiction  

going beyond the pleadings and facts and erred by  

comparing Order XV Rule 5 CPC with Order VIII  

Rule 1 CPC and wrongly gave benefit to the  

respondent. It was further contended that the  

High Court completely ignored the well reasoned  

finding of the Courts below which struck off the  

written statement.   

8. Per contra, according to counsel for the  

respondent, the lower courts  wrongly interpreted  

Order XV Rule 5 CPC that it is mandatory in  

nature whereas the court has jurisdiction and  

discretion to accept the written statement even  

after expiry of  90 days from the date of service  

of summon on payment of heavy cost as per  

decision of this Court. It was further contended  

that by the impugned judgment the said mistake  

committed by the lower courts was corrected by  

the learned Single Judge of the High Court.

9. We have heard  the learned  counsel  for the  

parties and perused the record. Both the parties

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relied upon one or the other decision of this  

Court which will be referred at an appropriate  

stage.

10. In the present case, we find that both the  

courts below noticed several defaults committed  

by the respondent in depositing the monthly rent.  

The aforesaid fact was noticed by the District  

Judge, J.P. Nagar,  as mentioned in paragraph 11  

of the order dated 31st May, 2007 and the same is  

reproduced below:

“11. In the present case there are  several defaults committed by the  revisionist in depositing the monthly rent  as under.

The rent of April 1999 must be  deposited upto 7th  May 1999, it has been  deposited by delay of 20 days on  27/05/1999.   No representation in this  behalf has been given by the tenant  explaining the delay.  Further the rent of  June 1999 has not been deposited upto 7th of  July 1999 nor the rent of month of July 99  was deposited upto 07/08/99, on the  contrary rent of both the months i.e. June  & July 99 has been deposited after a  considerable delay on 23/08/99, although  including the rent of August 99, as well,  but no explanation/representation regarding  the delay in deposit of the month of June  and July 99 has been furnished.   In the  same way, the rent of the month of  September, October­99 has been deposited  after considerable delay on 08/12/1999  although the rent of November and December­ 99 has been included therein but no  explanation of such delay in deposit of

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rent of September and October 99, has been  furnished, similarly the rent of Jan, 2000  was deposited on 07/03/2000, and no  explanation/representation was furnished  explaining the delay in deposit, although  the rent of February, March and April 2000  has been included therein similarly, the  rent of May and June – 2000 has been  deposited on 27/07/2000 including the rent  of Month of July and August 2000 but no  explanation/representation regarding the  delay deposit of the month of May and June­ 2000 was given by the tenant.  Further the  rent of Sep.2000 was deposited on  06/11/2000 in which the rent of October,  November and December­2000, was included.  The delay deposit of rent of the month of  September has not been explained.  The rent  of January,2001 was deposited after a  considerable delay on 22/03/2001 in which  the rent up to April 2001 has been  deposited the rent of May, June, July,  August, September, October and November  2001, total 7 months of rent was deposit on  5/12/2001 including the month of December  2001, there is no  explanation/representation regarding this  huge delay of deposit of the rent of month  May, June, July, August, September and  October, 2001.   The rent of January and  February was deposited on 11/03/2002 no  representation/explanation of this delay,  too has been given, the rent of September,  October, November and December 2002 was  deposited for the first time on 11/12/2005  by tender 122/C after moving the  application for striking off the defence.  In this deposit as well there is no  representation/explanation of this delay of  more than two years.  The rent of Jan 2003  was deposited on 18/02/03, rent of  September, October, November and December  2003 and Jan 2004 was deposited on  04/03/2004 in this deposit as well no  representation/explanation of any kind has  been given by the tenant. The rent of May,  June, July 2004 has been deposited on  25/08/2004 in this deposit as well no delay

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has been explained.........................  The tenant in this case only made  representation that he had deposited the  correct money rent but he did not file any  application for extension of time.  In the  circumstances, therefore, the courts below  were right in holding that there was a  default in payment of the monthly rent and  since there was also no application for  extension of time under sub rule (2) of  Rule 5 of Order XV C.P.C. the defence was  liable to be struck off. The order of the  High Court in the writ petition is  therefore not sustainable.”   

11. Rule 5 of Order XV, Code of Civil Procedure,  

was enacted by the U.P. Civil Laws (Amendment)  

Act, 1972 and the said Rule reads as follows:

“5.  Striking off defence for failure to  deposit admitted rent.—(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  cent 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 sub­rule (2) strike off his  defence.

Explanation 1­3 * * * * (2) Before making an order for striking  

off defence, the court may consider any  representation made by the defendant in

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that behalf provided such representation is  made within ten days of the first hearing  or, of the expiry of the week referred to  in sub­section (1), as the case may be.

(3) The amount deposited under this rule  may at any time be withdrawn by the  plaintiff:

Provided that such withdrawal shall not  have the effect of prejudicing any claim by  the plaintiff disputing the correctness of  the amount deposited:

Provided further that if the amount  deposited includes any sums claimed by the  depositor to be deductible on any account,  the Court may require the plaintiff to  furnish the security for such sum before he  is allowed to withdraw the same.”

12. In   Bimal Chand Jain v. Sri Gopal Agarwal  

(1981) 3 SCC 486,  this Court having noticed the  

aforesaid provision held as follows:

“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. Sub­rule (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 interest thereon at  the rate of nine per cent per annum and  further, whether or not he admits any  amount to be due, to deposit regularly  throughout the continuation of the suit the  monthly amount due within a week from the  date of its accrual. In the event of any  default in making any deposit, “the court  may subject to the provisions of sub­rule  (2) strike off his defence”. We shall  presently come to what this means. Sub­rule  (2) obliges the court, before making an  order for striking off the defence to  consider any representation made by the  defendant in that behalf. In other words,  the defendant has been vested with a  statutory right to make a representation to

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the court against his defence being struck  off. If a representation is made the court  must consider it on its merits, and then  decide whether the defence should or should  not be struck off. This is a right  expressly vested in the defendant and  enables him to show by bringing material on  the record that he has not been guilty of  the default alleged or if the default has  occurred there is good reason for it. Now,  it is not impossible that the record may  contain such material already. In that  event, can it be said that sub­rule (1)  obliges the court to strike off the  defence? We must remember that an order  under sub­rule (1) striking off the defence  is in the nature of a penalty. A serious  responsibility rests on the court in the  matter and the power is not to be exercised  mechanically. There is a reserve of  discretion vested in the court entitling it  not to strike off the defence if on the  facts and circumstances already existing on  the record it finds good reason for not  doing so. It will always be a matter for  the judgment of the court to decide whether  on the material before it, notwithstanding  the absence of a representation under sub­ rule (2), the defence should or should not  be struck off. The word “may” in sub­rule  (1) merely vested power in the court to  strike off the defence. It does not oblige  it to do so in every case of default. To  that extent, we are unable to agree with  the view taken by the High Court in  Puran  Chand1. 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.”

13. The same very provision of Rule 5 of Order XV  

fell for consideration before this Court in  Smt.  

Satya Kumari Kamthan v. Noor Ahmed and others  

1992 (2) Allahabad Rent Cases 82 (SC).   That was

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the case when the plaintiff filed an application  

for striking off, the tenant filed a written  

statement objecting to the striking off on the  

ground that there was no default in payment of  

the monthly rent as provided under Rule 5(1) of  

Order XV. The Courts below did not accept the  

said contention and found as a fact that there  

was a default in payment of  the  admitted  rent.  

The Courts below also noticed that though there  

was a default there was no “representation” by  

the tenant giving any excuse for not depositing  

the correct amount or praying for extension of  

time for deposit for valid reasons and that,  

therefore, the plaintiff of the said case was  

held to be entitled to get the defence struck  

off.   This Court referring to the provisions of  

Rule 5 of Order XV and relying on decision of  

this Court in  Bimal Chand Jain (supra) held that  

if the tenant has not made any representation  

under Rule 5 of Order XV and there is a default  

in payment of rent, it is open to the court to  

strike off the defence. The word “representation”

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may cover a “representation” in answer to an  

application for striking off or a  

“representation” praying for an extension of time  

for making the deposit on sufficient grounds.  

14. In   Mangat Singh Trilochan Singh  v. Satpal  

(2003) 8 SCC 357  this Court noticed the  

discretionary power of the Trial Court in the  

matter of striking off defence under Order XV of  

Rule 5 as in the said case Trial Court refused to  

strike off the defence of the tenant on the  

ground that a substantial question of  

jurisdiction was involved. The Trial Court also  

came to the conclusion that as arrears of rent  

having been deposited in Bank there were no mala  

fide on the part of the tenant and that the  

arrears were thereafter deposited in court with  

an application or representation made in  

accordance with sub­rule (2) of Rule 5.   This  

Court held that refusal to strike off defence and  

acceptance of deposit of arrears of rent was  

justified.

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15. In the present case, the Trial Court fully  

applied its mind while exercising its  

discretionary power to strike off the defence.  

The grounds were noticed, as mentioned at  

Paragraph 11 of the judgment passed by the  

District Judge and is quoted above. Learned  

District Judge exercising its revisional  

jurisdiction,   affirmed the order passed by the  

Trial Court. The aforesaid judgment(s)  cannot be  

said to be perverse nor can it be said that the  

courts below have exceeded or failed to exercise  

their jurisdiction. The power to strike off the  

written statement vested under Rule 5 of Order XV  

was exercised by the lower courts after going  

through the facts of the case.   

16. Inspite of the aforesaid fact, we find that  

the High Court failed to give any ground while  

exercising its inherent power under Article 227  

of the Constitution of India. Learned Single  

Judge by impugned judgment observed that the  

Supreme Court has held that the Court has  

jurisdiction and discretion to accept the written

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statement even after expiry of 90 days from the  

date of service of summons on payment of heavy  

cost. Defendant has neither cited any decision  

nor shown any ground for acceptance of written  

statement even after expiry of 90 days from the  

date of service of summons on payment of  heavy  

cost. The order passed by the Trial Court by  

exercising its discretionary power and the order  

passed by the Revisional Court affirming the  

Trial Court order were not perverse and both the  

courts below have not exceeded their  

jurisdiction. Hence, it was not open to the High  

Court to sit in appeal under Article 227 of the  

Constitution of India to alter such finding of  

facts and to accept the written statement without  

any ground.   

17. For the reasons aforesaid, we have no option  

but to set aside the impugned judgment dated 17th  

September, 2007 passed by the learned Single  

Judge, High Court of Judicature at Allahabad in  

Civil Miscellaneous Writ Petition No.44387 of  

2007 and allow the appeal. The Trial Court is

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expected to decide the Suit No.17 of 1998  

expeditiously as the matter is pending since  

long. No costs.

………………………………………………….J.        (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………….J.         (KURIAN JOSEPH)

NEW DELHI, AUGUST 30, 2013

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