Ashok Kumar Barnwal v. Ist Additional District Judge, Gorakhpur

Sudhir Narain, J.:— This writ petition is directed against the order dated 9.12.1980 striking off the defence and the order dated 8.9.1982 passed in revision by the court below.

2. I have heard Sri S.C Mandhyan, learned counsel for the petitioners, and Sri M.A Qadeer, learned counsel for the respondent.

3. It is not necessary to go in detail regarding various dates fixed by the courts below in regard to the suit.

4. The defendant-petitioners admittedly did not deposit monthly rent as contemplated under Order XV Rule 5 C.P.C and also on the date of first hearing.

5. In Siraj Ahmad Siddiqui v. Prem Nath Kapoor., 1 the Supreme Court held that the date of hearing will be taken as the date on which the court applies its mind to the controversy involved in the case.

6. Having heard learned counsel for the petitioners and considering the facts and circumstances of the case I find that the trial court has not considered as to whether the discretion is to be exercised not to strike off the defence. The amount is alleged to have been deposited.

7. The writ petition is allowed. The orders dated 9.12.1980 and 8.9.1992 are hereby quashed.

8. The suit was filed in the year 1971. The trial court is directed to decide the suit within three months from the date of production of a certified copy of this order. The case shall not be adjourned and if necessary, not for more than three days. The hearing shall go on day by day. Considering the past conduct of the petitioners, they shall deposit Rs. 5,000/- within three weeks from today for permitting their defence to be taken on the record.

9. Petition Allowed.