Sohan Lal v. Hodal Singh

K.C Agrawal, J.:— This is a defendant's revision filed under Sec. 115 Code of Civil Procedure against a judgment of the Second Additional District Judge, Aligarh dated 14-9-1977 accepting the revision perferred under Section 25 of the Provincial Small Cause Courts Act.

2. The plaintiffs are the opposite parties in this revision. They filed suit no. 457 of 1975 for ejectment, recovery of arrears of rent and damages for use and occupation. They alleged that the defendant was the tenant on a monthly rent of Rs. 80/- besides Rs. 3/- for electrical charges of a pucca shop situated in Mohalla Jwalapuri G.T Road, Aligarh. He did not pay the rent and the electricity charges amounting to Rs. 1245/- due from 1-10-1973 to 31-12-74, despite a notice dated 27-1-1975.

3. The suit was contested by the defendant claiming that the rate of rent initially agreed between the parties was Rs. 10/-. He asserted that he had been paying rent every month and that the plaintiff had been receiving the same. The defendant's case was that rent upto the end of December, 1974 stood fully paid up; that in the month of January, 1975, the plaintiff sent an illegal and wrong notice claiming the rent from 1-10-1973. Daring the pendency of the suit, an application dated 29-10-1975 for striking off the defence on the ground that as the defendant had neither deposited nor paid rent, the defence was liable to be struck out under Order 15 Rule 5 C.P.C The learned Judge Small Cause Court did not dispose off the said application after it was filed and instead observed in the judgment that in view of the deposits referred to by him, it would not be proper to strike off the defence. The Judge Small Cause Court held that the rate of rent had been at Rs. 15/- as alleged by the plaintiff. He further concluded that the defendant had not committed any default in the payment of the rent. On these findings, the suit was dismissed.

4. Against the judgment of the trial court, the plaintiff preferred a revision under Section 25 of the Provincial Small Cause Courts Act. In the revision the Additional District Judge found that the deposit of the arrears of rent and future rent having not been made, as required by Order 15 Rule 5 C.P.C, the defence was liable to be struck out. After ignoring the defence of the tenant, the learned Additional District Judge held that the plaintiff had established that the rate of rent of the shop in question was Rs. 80/- per month and since the defendant had committed a default he was liable to eviction. Consequently, the revision was allowed and the suit of the plaintiff was decreed for the ejectment of the defendant and for the recovery of Rs. 1736/- as arrears of rent and electric charges. Dissatisfied, the defendant filed the present revision.

5. The first question that is required to be considered in this case is whether the written statement filed by the defendant was liable to be struck out. By U.P Civil Laws (Amendment) Act No. 37 of 1972 Rule 5 was added to order XV of the Code of Civil Procedure. It provides for the striking off the defence at non-deposit of rent. It further requires a defendant to deposit regularly the amount of monthly rent throughout the continuance of the suit. In the instant case, there were two controversies. One of them was about the rate of rent and the other was about the adjustment of the amounts deposited in the proceedings under Section 30 of U.P Act No. 13 of 1972. As already stated above, the case of the defendant was that the rate of rent was Rs. 15/- whereas that which was of the plaintiff was that it was Rs. 80/- per month. The Judge found in the revision filed under Section 25 of the Provincial Small Cause Courts Act that the rent was Rs. 80/- per month and as the deposits had not been made at the rate of Rs. 80/- per month the defence was liable to be struck out. In this connection the Revising Authority had found that not only that the arrears of rent had not been deposited on the first day of hearing but also the defendant had not deposited monthly rent regularly. Although, the Judge Small Cause Court had not struck out the defence but even he held that the deposit of the monthly rent had not been regular. It, however, had refused to strike out the defence on the ground that the same was not proper to be done at the late stage when the parties had already adduced evidence and the case was being decided on the merits. This necessitates the consideration of the nature of the provision made under Order 15 Rule 5 C.P.C

6. Order 15 Rule 5 requires a tenant to make the deposit in the manner prescribed therein. It empowers the court to strike out the defence if the deposit has not been made. While conferring such a power the Legislature used the expression ‘may’. Relying on the aforesaid expression ‘may’, the contention raised on behalf of the tenant was that the striking out of the defence was directory and discretionary and as such, refusal to strike out the defence could not be a ground for interference under Section 25 of the Provincial Small Cause Courts Act. In other words, the submission was that the word ‘may’ cannot mean ‘must’ and thus it was not obligatory or mandatory on the learned Judge Small Causes to strike out the defence.

7. I am unable to accept the submission. The words ‘may’ even if was prima-facie enabling, the Legislature used it in the sense of ‘must’ or ‘shall’. A court is obliged to pass an order striking out the defence if the conditions of Order XV Rule 5 C.P.C for passing such an order has been made out. The settled rule appears to be that when a statute confers an authority to do a judicial act in a certain way, it is imperative on it so authorised to exercise the authority. In the context in which word ‘may’ has been used, it leaves no discretion to the court concerned to omit to pass an order striking out the defence.

8. In I. Hirday Narain v. Income Tax Officer, Bareilly† , Bareilly, (1970) 2 SCC 355 : AIR 1971 SC 33 (36) the Supreme Court in dealing with Section 35 of the Income-tax Act, 1922 which provided that the authorities may ‘rectify any mistake apparent on the face of the record’, held that the authorities were bound to exercise the power if conditions for its rectification were shown to exist by a person interested.

9. Similarly, interpreting the same word ‘may’ used in the Bombay Rents Hotel and Lodging House Rates (Control) Act, the Supreme Court observed in Pujalal v. Bhagwat Prasad, AIR 1963 SC 120 that the word used ‘may’ does not mean that the court has discretion to pass or not to pass a decree for eviction in case the other conditions mentioned in that clause are satisfied.

10. In this view of the matter, it appears to me that the court had no jurisdiction to refuse to strike out the defence when the rent had not been deposited in the manner prescribed by Order XV Rule 5 C.P.C It is not correct to say that the provision is directory. In my opinion, the provision is mandatory. A provision is said to be mandatory when it is necessary that it must be observed as distinguished from directory provision, which leaves the option and the observance of which is not necessary to the validity of the proceeding.

11. The learned counsel suggested that as Rule 5 empowers a court seized with a suit to extend time for depositing the money, the same should be interpreted as directory. I am unable to accept the submission. Under Rule 5, a Court can, after considering any representation made by a tenant, allow him further time for depositing the rent but this cannot be interpreted as meaning that the striking of the defence is discretionary. Simply because the Legislature has conferred power on a court to extend time that cannot be interpreted to mean that the Code leaves it optional with the Officer to obey or not. Reference was made to a decision of the Supreme Court reported in V.K Verma v. Radhey Shyam., AIR 1964 SC 1317 by the learned counsel for the defendant and it was urged that as it was held in that case that the power to strike out the defence was discretionary and optional, this court should also take the same view in the present case. In the said case, the phraseology of the provision was different. It appears that Section 13(5) of the Delhi and Ajmer Rent Control Act, 1962 used the words ‘the court shall order the defence against ejectment to be struck out.’ Subsequently, the Act was amended and those words were deleted. The amending Act used the words ‘the Controller may order the defence against eviction to be struck out.’ Interpreting this change the Supreme Court observed that under the old Code the Court had not option but to strike out the defence if the failure to pay or deposit the rent is proved. Now, under the new Act the Controller, who takes the place of the Court has a discretion in the matter so that in proper case he may refuse to strike out the defence. The view taken was on account of the deliberate modification in law in favour of the tenants. This case, therefore, is of no assistance.

12. Reverting to the facts of the present case, it would be found that the concurrent view of the two courts below was that the defendant had committed default. Both the courts found that the defendant did not deposit the future monthly rent regularly. As the defendant also had not made any representation, the consequence of non-compliance of Order XV Rule 5 was to strike off the defence.

13. Sri S.A Khan, counsel appearing for the defendant, however, contended that as the defence had not been struck off by the Judge Small Causes, the Revising Authority could not do so under Section 25 of the Act. He urged that the power to strike out the defence exists only upto the stage when the parties have not adduced evidence. But where, as here, the evidence had been adduced the court had no power to strike out the defence. I am unable to subscribe to this view. Under Order XV Rule 5 C.P.C the deposit had to be made on or before the date of final hearing and that such a deposit must continuously be made regularly throughout the pendency of the suit. If either of the two things happen, the defence would be liable to be struck off. If a trial court does not strike off the defence, it will always be open to the higher court to correct the mistake and to strike off the defence. A wrong order passed by a trial court is always liable to be rectified or corrected. It does not clothe a party with any right. Accordingly, a higher court hearing an appeal or revision against an order of the Judge Small Causes would have ample jurisdiction to correct the mistake and to strike out the defence.

14. For what I have said above, I find that the Revising Authority was right in striking out the defence.

15. The next question that arises is the consequence of the striking off the defence. Counsel for the defendant urged that even when a defence is struck out, a defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence adduced on behalf of the plaintiff a decree cannot be passed against him. See: Paradise Industrial Corporation v. Kalin Plastic Products, (1976) 1 SCC 91 : AIR 1976 SC 309. Accordingly, the proper course in such a matter is that the defendant should be permitted to participate in the proceedings despite the fact that his defence had been struck out. His participation would, however, be limited to the purposes indicated above.

16. In the instant case, since the written statement had not been struck out the defendant had not only participated in the proceedings and cross-examined the witnesses of the plaintiff but also adduced his own evidence. As in my opinion, the defence was liable to be struck out, the evidence led by the defendant could not be read. The case had to be decided without referring to that evidence. Having found that the defence was liable to be struck out, the Additional District Judge also confined himself to the evidence of the plaintiff and reversed the findings of the Judge Small Causes. He found that the rate of rent of the premises was Rs. 80/- per month. No error could be pointed out as against this finding. In the result, the revision fails and is dismissed. In the circumstances I direct the parties to bear their own costs. The applicant is granted three months' time to vacate the premises.

K.J.C

17. Revision dismissed.