Bhawani Vastra Bhandar And Another v. Smt. Sahodra Devi (Deceasedthrough L.Rs) And Others

R.K Mahajan, J.:— This is a revision under Section 25 of the Provincial Small Cause Courts Act against the order dated 9.3.1994 of Additional District Judge, Ballia striking off the defence of the applicants in S.C.C Suit No. 306 of 1982 between Smt. Sahodra Devi and others and Bhawani Vastra Bhandar.

2. Admittedly, the plaintiff-respondents are landlords and the defendant-applicants are tenants of the premises in dispute.

3. The plaintiffs filed a suit for recovery of arrears of rent and eviction.

4. The only question which arises for consideration in this revision is as to whether the striking off the defence under Order XV Rule 5 of the Code of Civil Procedure by the court below was legally valid and justified. It appears that the defendants were served for 4.8.1983 for filing written statement and hearing. The defendants filed written statement on that date admitting that Rs. 3,778.75p were due and the rate of rent is Rs. 425/- per month. The defendants applied for time to deposit the aforesaid amount on 6.9.1983 and 5.10.1983 was fixed for final hearing. The defendants deposited the rent on 28.10.1983 which was to be deposited before 5.10.1983 The court below observed that no application was filed for condonation of delay.

5. The learned counsel for the defendant-applicants has submitted that the court below has not applied its mind on first hearing and there was no question of depositing the rent. He further submitted that even issues were not framed and no date was fixed for evidence. It was further contended that Order XV Rule 5, C.P.C should not be interpreted technically to deprive the tenants of the residential premises. He further submitted that the tenants had paid all arrears of rent upto February, 1996. On the other hand, the learned counsel for the plaintiff-respondents has submitted that the order of the court below striking off the defence is a valid and perfect order and calls for no interference.

6. I have heard the learned counsel for the parties and perused the entire record of the case. After going through the material on record, I am of the view that the court below took technical and harsh view in striking off the defence. The provision of Order XV Rule 5, CPC should not be interpreted in such a way that they should be trapped to evict the tenants. In the present case, the conduct of the tenant is not obdurate and malafide regarding the payment of rent. Under Order XV Rule 5, CPC, it is the discretion of the court to strike off the defence. The striking off defence entails serious consequence of eviction and the tenants may not be able to find out the accommodation. At the same time, the court is also to see that the interests of the landlord is not jeopardised regarding the payment of rent and the tenant walks out without the payment of money. In this case, the act of the defendant-tenants is not malafide, The learned counsel for the applicants has relied on so many rulings on first hearing. A decision dated 3rd May, 1982 rendered by Hon'ble K.M Dayal, J. in Civil Misc. Writ No. 6764 of 1980, Vishwanath v. 1st Additional District Judge was cited. It relates of proving bonafide regarding the deposit of rent. The trial court should not have struck off the defence. Mere absence of representation or delay in depositing rent or dues could not entitle trial court to strike off defence.

7. The learned counsel for the applicant has cited a ruling reported in Advaita Nand v. Judge, Small Causes Court Meerut. It relates to the interpretation of first hearing. The Hon'ble Supreme Court while interpreting Section 20(4) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, has observed as under:—

“Section 20(4)—Interpretation of the expression “first hearing”. Following Siraj Ahmad Siddiqui's case held that “first hearing of the suit” means the date on which court proposes to apply its mind to determine the points in controversy and frame issues. Even for decision before Small Causes Court it would mean the date fixed for final hearing of the suit and it cannot be the date for filing of the written statement. Since first date of hearing was 24.7.1990 and rent arrears were deposited on 2nd May, 1990, the court below erred in holding that protection of Section 20(4) was not available.”

8. Following the ratio of this ruling, the first heating means when the court apply its mind to determine the points in controversy between the parties to the suit. It may be mentioned in small cause suit, procedure of summary proceedings is followed and only findings are given on the points for determination. Even though, reasons are not required to be given but the practice is that brief reasons are given. In this case, the suit was adjourned from 5.10.1983 to 28.10.1983 for final hearing. The tenant deposited the rent on 28.10.1983 In my view, the tenant can deposit the rent on the date of final hearing when the court applies its mind also. This ratio is quoted by the Supreme Court in the decision mentioned above. Under these circumstances, I am of the view that first hearing has not taken place in this case. So on both the scores, the revision is liable to succeed.

9. In the result, the revision succeeds and is allowed. The impugned order is set aside. The court below shall proceed with the case and decide the same on merits expeditiously after affording opportunity to the parties to adduce evidence.

10. Revision Allowed.