S.D Agarwala, J. (for himself and on behalf of A.N Varma, J.):— One of the questions involved in this revision is as to whether a defence of a tenant can be struck off for non-compliance of Rule 5 of Order XV as added by the U.P Civil Laws (Reforms and Amendment) Act, 1976, (U.P Act No. 57 of 1976) hereinafter referred to as the U.P Act). Hon. B.N Sapru, J. by his order dated 29th April, 1987 when the revision came up for hearing before him, directed that the papers of the case be laid before Hon'ble the Chief Justice to constitute a larger Bench to consider the following questions:—

2. Whether in view of the decision of the Supreme Court in the Case of Ganpat Giri v. II Addl. District Judge, (1986) 1 SCC 615 : AIR 1986 SC 589 the provisions of Order XV, Rule 5 of the C.P.C stood repealed by virtue of the provisions of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) hereinafter referred to as the Central Act? Whether the Central Amendments having come into force w.e.f 1-2-1977 repealed the provisions of Order XV, Rule 5 of the Code of Civil Procedure introduced by U.P Act No. 57 of 1976?

3. In Smt. Chandra Rani v. Vikram Singh, (1979) 5 All LR 56 : (1979 All LJ 401) a Full Bench of this Court had already taken a view that Order XV, Rule 5 as added by the U.P Act was valid and did not stand repealed by virtue of the Central Act. Since the matter has already been decided by a Full Bench of this Court, in effect, the question which was referred by Hon'ble B.N Sapru, J. amounted to reconsideration of the decision in the case of Smt. Chandra Rani, (1979 All LJ 401) (FB) (supra) in view of certain observations made by Hon'ble Supreme Court in Ganpat Giri's case, ((1986) 1 SCC 615 : AIR 1986 SC 589) referred to above The Hon'ble Chief Justice has directed that the papers of this case be laid before us to consider as to whether the Full Bench decision in the case of Chandra Rani (supra) requires reconsideration or not.

4. We have heard learned counsel for the parties.

5. In Ganpat Giri's case (supra), the question which has been considered by Hon'ble Supreme Court was as to whether the amendment made in Order XXI, Rule 72 of the Code of Civil Procedure by the High Court in exercise of its powers under Section 122 of the Code of Civil Procedure (hereinafter referred to as the Code) which was in force in the State of Uttar Pradesh prior to the commencement of the Central Act was inconsistent or not with the provisions of the Central Act. The Hon'ble Supreme Court came to the conclusion that Order XXI, Rule 72 of the Code which was in force in the State of Uttar Pradesh prior to the Central Act, was directly inconsistent with the provisions of the Central Act and as such, it was held by the Hon'ble Supreme Court that the amended Order XXI, Rule 72 of the Code which was in force in the State of Uttar Pradesh prior to February 1, 1977, did not continue after 1st February, 1977.

6. While giving the above decision, certain observations were made by the Hon'ble Supreme Court. In this connection, paragraphs 4 and 11 have been relied upon while making the reference. Paragraphs 4 and 11 are quoted below:—

“Para 4. There are three sub-sections in S. 97 of the Amending Act. A reading of S. 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consisting of sections and the First Sch. to the Code which contains Orders and Rules. S. 97(1) of the amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the Commencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i.e on Feb. 1, 1977. The repealing provision in S. 97 is not confined in its operation to provisions of the Code including the Orders and Rules in the First Sch. which are actually amended by the Amending Act. The object of S. 97 of the Amending Act appears to be that on and after Feb. 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil Courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us.”

7. Now reverting to S. 97(1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to R. 72 by the Amending Act, S. 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the amending Act. As observed earlier, the effect of S. 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in sub-sec. (2) of S. 97. Sub-sec. (3) of S. 97 provides that save as otherwise provided in sub-sec. (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right of cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-sec. (3) of S. 97 sets at rest doubts if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to sub-sec. (2) of S. 97.”

8. Specific reliance has been placed on the following observations made in paragraph 4 quoted above, namely, ‘The object of S. 97 of the Amending Act appears to be that on and after Feb. 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil Courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil Courts which are governed by the Code’.

9. In view of these observations, it has been urged that all amendments made either by the High Court or by the State Legislature before 1st February, 1977 stood repealed and, consequently, since Order XV, Rule 5 was in existence prior to February 1, 1977, the same also stood repealed.

10. In our opinion when the judgment is read as a whole the contention raised that all amendments made by the High Court and by the State Legislature prior to 1st February, 1977 stood repealed whether consistent or inconsistent with the Central Act, does not appear to be correct. In paragraph 4 itself, a portion of which has been relied upon by the learned counsel, in the earlier part, it has been categorically stated that under Section 97, sub-clause (1) the local amendments made by the State Legislature and by the High Court shall if such provision is not consistent with the provisions of the Code, as amended by the Amending Act, stand repealed. It has been further stated in this very paragraph that the local amendment of the Code which is inconsistent with the Code, as amended by the Amending Act would cease to be operative on February 1, 1977. Similarly, in paragraph 11, which has been quoted above, it has been observed that the effect of Section 97, sub-clause (1) is that all provisions of the Code either by the State legislature or by the High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act. If the Supreme Court intended to hold that all amendments whether consistent or inconsistent made by the State and High Court prior to 1-2-1977 stood repealed then there would have been no occasion for the Supreme Court to consider the further question whether there was inconsistency between the provisions of Order XXI, Rule 72 as added by State and that contained in the Code as amended by the Central Act.

11. In the circumstances, we do not think that Hon'ble Supreme Court intended to hold that all local amendments made by the State Legislature or by the High Court whether they were inconsistent or not, would stand repealed by the Code as amended by the Central Act. The intention clearly was that the provisions of Section 97, sub-clause (1) of the Central Act be given full effect and that any prior amendment made by the High Court or by the State Legislature before 1st February, 1977 would stand repealed only if it was not consistent with the provisions of the Central Act.

12. Section 97, sub-clause (1) of the Central Act reads as follows:—

“97. Repeal and Savings.— (1) Any amendment made, or any provision inserted in the Principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the Principal Act as amended by this Act, stand repealed.”

13. The Central Act came into force with effect from 1st February, 1977. Article 254 of the Constitution of India deals with inconsistency between laws made by Parliament and laws made by the Legislatures of the State. Sub-clause (1) of this Article provides that if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact then the law made by Parliament whether passed before or after the law made by the Legislature of State shall prevail and the law made by the Legislature of the State, shall to the extent of the repugnancy, be void.

14. Sub-clause (2) of Article 254 however, saves the law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List if the provision is repugnant to the provisions of an earlier law made by Parliament provided such a law is reserved for the consideration of the president and has received assent shall prevail in that State.

15. In Chandra Rani's case, (1979 All LJ 401) (FB) (supra), it was held that the U.P Act was a subsequent Act and it received the assent of the president and as such, it would prevail. It is not necessary for us to go into the question as to which is the later Act. Even if for the sake of argument, it is taken that U.P Act is a prior Act then too, since Section 97, sub-clause (1) quoted above came into effect from 1st February, 1977, we have to examine as to whether Order XV, Rule 5 is consistent or not with the Code as amended by the Central Act. Section 97, sub-clause (1) of Central Act saves all provisions which are consistent with the provisions of the Principal Act, namely, the Code as amended by the Central Act.

16. In N. Karunanidhi v. Union of India, (1979) 3 SCC 431 : (AIR 1979 SC 898) the Hon'ble Supreme Court had an occasion to consider as to how the inconsistency between the Central and State Act has to be determined. In paragraph 35 of the above decision, the Hon'ble Supreme Court laid down the following propositions:—

“1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a partiular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field.”

17. The question of inconsistency was again considered in on another very recent decision of the Hon'ble Supreme Court in The Krishna District Co-operative Marketing Society Limited v. N.V.P Rao, (1987) 4 SCC 99 : AIR 1987 SC 1960. The Hon'ble Supreme Court relied on a passage from Maxwell's Interpretation of Statutes 12th Edition for determining the question whether the provisions under, consideration are inconsistent or not. The passage is as follows:—

“Now if anything be certain it is this “said the Earl of Selborne L.C in The Vera Cruz, (1884) 10 App Cas 59 at p. 68” that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so.” In a later case Viscount Haldane said; “We are bound……” to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough even though by its terms it is stated so widely that it would, taken by itself, cover speical cases of the kind I have referred to.”

18. From the above propositions laid down by the Hon'ble Supreme Court it is clear that there can be no repeal by implication unless the inconsistency appears on the face in the two statutes. It has been further held that if there is a possibility of both the statutes operating in the same field without coming into collision with each other, there would be no inconsistency.

19. In the light of the above propositions laid down by the Hon'ble Supreme Court we have to examine as to whether Order XV, Rule 5 inserted in the Code by the High Court, is inconsistent with the Code as amended by the Central Act or not.

20. Section 35B of the Code empowers the Court to strike down the defence if costs are not paid as directed by the Court. Order VI, Rule 16 empowers the Court to strike down an pleading on conditions mentioned in the said Rule. Order XL Rule 21 empowers the Court to strike out the defence in case the party fails to comply with any order to answer interrogatories or for discovery or for inspection of documents. These are a few instances mentioned in the Code where the Court can strike out the defence. This is not exhaustive. Order XV, Rule 5 was enacted specifically for suits between the lessor and the lessee. This was a provision made in order that the tenants do not delay the disposal of the suit and further in order that the landlords' rights be safeguarded at least to the extent of payment of rent in respect of the property in dispute. In Chandra Rani's case (1979 All LJ 401) (FB) (supra) in the light of the Rent Control Legislation in the State, it has been observed as follows:—

“This resulted in acute shortage of residential and non-residential accommodation in the cities taking advantage of this situation the landlords tended to indulge in rack-renting and resort to other evil practices which made it necessary to enact Rent Control and Urban Buildings Legislations in various States. These enactments by and large had the effect of restricting the rights of the landlord and affording protection and security to the tenants. This, however, brought in its wake another evil which could not be easily anticipated. The tenants were placed in a position of such evident advantage by the protective and beneficial legislation that the landlords' rights unjustly suffered. They could be easily dragged into interminable litigation by tenants who on their part could manage to remain indefinitely in occupation of the accommodation in their tenancy without even caring to pay the huge arrears of rent against them. In order to restore the equilibrium between landlords and tenants which had been upset by the Rent Control Legislations U.P Act No. 37 of 1972 introduced rules in Order XV.”

21. There is no provision contained in the Code for not striking out the defence in the case of suits between the lessor and lessee. Some examples, as we have already stated above, have been given where defence can be struck off but that it is not exhaustive. This provision can co-exist with the provisions contained in the Code regarding the striking out of the defence and this provision does not come in conflict with any other provision in the Code. There is, in fact, no inconsistency between the provision of O. XV, R. 5 as brought about by the State and the Code as amended by the Central Act. In the circumstances on the face of it, Order XV, Rule 5 is not inconsistent with any provision of the Code. Order XV, Rule 5 only deals with specific classes of suits, namely, between the lessors and lessees. The provision of Order XV, Rule 5 is an additional instance in which the power has been given to the Courts to strike out the defence. In view of the above, we are clearly of the opinion that O. XV, R. 5 as brought out by the State of U.P in the Code is not at all inconsistent with the provisions of the Principal Act as amended by the Central Act and consequently, it does not stand repealed.

22. The question of consistency was also considered in the case of Smt. Chandra Rani (1979 All LJ 401) (FB) (supra), Hon'ble M.N Shukla, J. as he then was, observed as follows:—

“There is surely no direct conflict between the provisions of Order XV, Rule 5 as inserted by U.P Act 37 of 1972 and the Central Act which does not contain Rule 5. Order XI, Rule 16 substituted by Central Act No. 104 of 1976 also contains a provision for striking out pleadings. Rule 5 of Order XV merely adds other cases in which the same power may be exercised. It, therefore, multiplies the situtations for the exercise of that power and does not make any innovation which may be regarded as inconsistent with the Central Act.”

23. In view of the above, we are of the opinion that in view of the decision of the Hon'ble Supreme Court in the case of Ganpat Giri ((1986) 1 SCC 615 : AIR 1986 SC 589) (supra) the Full Bench Decision of this Court in the case of Smt. Chandra Rani (1979 All LJ 401) (supra) does not require reconsideration. In the case of Ganpat Giri (supra) there was a direct conflict between the provisions of Order XXI, Rule 72 between the State Act and the Central Act, which is not the case here.

24. In view of what we have said above, we hold that the law laid down by the Full Bench in Chandra Rani's case (1979 All LJ 401) (supra) is, with respect, correct and that it still holds good notwithstanding the decision of the Supreme Court in Ganpat Giri's case ((1986) 1 SCC 615 : AIR 1986 SC 589) (supra).

25. We further hold that the fact that the central amendments came into force on 1-2-1977, would not effect the validity of Order XV, Rule 5 as inserted by U.P Act No. 57 of 1976. We accordingly answer both the questions referred to us in the negative. The papers are returned to Hon'ble the Chief Justice for directing the case to be listed before the single Judge for hearing on merits.

B.L Yadav, J.:— I agree.

26. Answer accordingly.