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  • provision of clause (1) of Rule 5 of Order XV.7.
  • S. 20 of U.P Act No. XIII of 72
  • sub-rule (2),
  • sub-rule (1)
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Citation Codes
Equivalent Citations
citation codes
Case Number
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  • provision of clause (1) of Rule 5 of Order XV.7.
  • S. 20 of U.P Act No. XIII of 72
  • sub-rule (2),
  • sub-rule (1)
Smart Summary

Factual and Procedural Background

Respondent No. 3, Harendra Dutt Tripathi (the landlord), filed Suit No. 28 of 1977 under S. 20 of U.P. Act No. XIII of 1972 seeking eviction of the tenant, the present petitioner Bharat Bhushan Misra, on the ground that the tenant was in arrears of rent from August 1976. The landlord claimed a rate of rent of Rs. 70 per month; the tenant contested the suit inter alia on the ground that the rate of rent was Rs. 30 per month.

Evidence in the suit concluded on 18-1-1980. The suit was fixed for arguments for 7-2-1980 and was later adjourned to 21-2-1980. The plaintiff-landlord moved an application under Order XV Rule 5, C.P.C., seeking to strike off the defence of the tenant on the ground that the tenant failed to make deposits as required by that provision. The defendant (tenant) filed objections, asserting that the entire rent up to February 1980 had been deposited, although rent for several intermediary months had been deposited after the time specified (one week from accrual).

The trial court (learned Munsif exercising Small Causes powers) found as a matter of fact that the tenant deposited rent for certain months beyond the permitted time and, on that basis, held that the defendant had committed default in complying with Order XV Rule 5 and struck off the defence. A revision against the trial court's judgment and order was dismissed by the District Judge, Gonda, on 18-12-1980.

The writ petition challenged the impugned orders; this court allowed the writ petition, quashed the orders of the learned Munsif dated 5-4-1980 and the order of the District Judge dated 18-12-1980, and directed the trial court to consider the defence and decide the suit on merits. The parties were directed to bear their own costs. The tenant had admittedly deposited all rent due up to February 1980, though some deposits were delayed for particular months.

Legal Issues Presented

  1. Whether the trial court and revisional court were correct in striking off the tenant's defence under Order XV Rule 5, C.P.C., on the basis of delayed deposits of rent when the suit had reached the stage of arguments and evidence had concluded.
  2. Whether the tenant's explanation/representation for delayed payment of rent was duly considered as required by Order XV Rule 5, C.P.C., and whether failure to consider that representation vitiates the order striking off the defence.
  3. Whether the provisions of Order XV Rule 5, C.P.C. are to be construed strictly (so that striking off is mandatory upon non-compliance) or liberally/discretionarily (so that the court may decline to strike off defence in appropriate circumstances).

Arguments of the Parties

Petitioner's (Defendant-Tenant's) Arguments

  • The tenant submitted explanations for delays in depositing rent for certain months and maintained that the entire rent up to February 1980 had been deposited; these explanations were not controverted by affidavit or objection.
  • The tenant argued that the representation required under sub-rule (2) of Rule 5 should have been considered and that the courts erred by not considering his representation before striking off the defence.
  • The tenant contended that the application to strike off the defence was moved only at the stage of arguments (after evidence was closed) and that raising such an application at that late stage was improper and prejudicial.
  • The tenant urged that Order XV Rule 5 should be interpreted liberally and not mechanically or literally to penalize delayed payments that were explained and where deposit of all outstanding rent was ultimately made up to February 1980.

Respondent's (Plaintiff-Landlord's) Arguments

  • The landlord relied on the decision in Sohan Lal v. Hodal Singh (AIR 1979 All 230 / Summary of Cases 1979 (5) All LR 78), which had been interpreted to mean that the word "may" in Rule 5 is to be read as "must" or "shall" so that courts are obliged to strike off defence where the conditions of Order XV Rule 5 are not complied with.
  • The respondent also submitted that for months not mentioned by the trial court as delayed, rent was actually not deposited; the court rejected this submission on the basis that the trial court had only listed months for which there was delay, implying other months were paid within time.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sohan Lal v. Hodal Singh, Civil Misc. Writ Petn. No. 1947 of 1977; Summary of Cases 1979 (5) All LR 78 : AIR 1979 All 230 Held that the word "may" in Order XV Rule 5 should be interpreted as "must" or "shall" so that a court is obliged to strike off defence if the conditions of Rule 5 are not complied with; observed that while a court can allow further time after considering representation, striking off is not discretionary. The court noted this decision was relied on by the respondent but concluded that Sohan Lal's case "is no more good law" in light of later authorities and Supreme Court interpretations; the court did not follow the rigid rule suggested there.
Rajendra Pal Garg v. Additional District Judge, Dehradun, (1987) 2 All Rent Cas 289 Addressed the propriety of moving an application under Order XV Rule 5 after evidence has been recorded; observed it was "not proper to decide the preliminary issue at this stage" where plaintiff had closed evidence and defendants had examined witnesses. The present court treated this later decision as binding and agreed with its view that an application to strike off defence should not be entertained at the stage when evidence is closed and the matter is at arguments; applied this principle to set aside the trial and revisional courts' orders.
Bimal Chand Jain v. Sri Gopal Agarwal, 1981 All Rent Cas 463 : 1981 All LJ 908 Supreme Court interpretation: Order XV Rule 5 vests a power ("may") to strike off defence but does not make it obligatory; the power should not be exercised mechanically; courts retain discretion not to strike off defence even in the absence of representation under sub-rule (2), depending on material on record. The court relied on these observations to reject a literal or mandatory construction of Rule 5 and to emphasize that striking off defence is discretionary and must be exercised responsibly; used this reasoning to vindicate the tenant's position.
Sultan Ahmad v. Gobardhan Das, (1983) 1 All Rent Cas 161 Explained the purpose of Rule 5, Order XV: not intended to be a basis for eviction except in cases of deliberate/default in payment; the provision should be interpreted narrowly to apply only where there is deliberate default. The court followed and agreed with this interpretation, applying it to hold that the facts did not justify striking off the defence and that the trial and revisional courts had taken an unduly literal approach.
Jugmandar Das v. Ram Phal, 1982 All Rent Cas 2 : AIR 1982 All 102 Cited in conjunction with Bimal Chand Jain and Sultan Ahmad as authority supporting a non-mechanical, purposive interpretation of Order XV Rule 5. The court referenced this case as part of the jurisprudential backdrop supporting the view that Rule 5 should not be applied to penalize tenants except in cases of deliberate default; used as supportive authority for refusing to strike off defence in present facts.
Puran Chand (High Court decision referenced) Referenced as a decision where the High Court placed a narrow (mandatory) construction on Rule 5 (referred to in Bimal Chand Jain discussion). The court explicitly disagreed with the high court's view in Puran Chand as being unduly narrow, aligning instead with the Supreme Court's broader, discretionary interpretation.

Court's Reasoning and Analysis

The court's analysis proceeds along the following lines, strictly following the materials and reasoning contained in the opinion:

  1. Assessment of timing: The court emphasized that the application under Order XV Rule 5 was moved when the suit had reached the stage of arguments and after evidence had closed. It relied on the later decision in Rajendra Pal Garg (1987) to hold that it is improper to decide a preliminary issue to strike off defence at such a late stage where plaintiff had closed evidence and defendant had already examined witnesses. The court considered itself bound by that later authority and agreed with its reasoning.
  2. Requirement to consider representation: The court reiterated that Rule 5 conditions the power to strike off defence on consideration of any representation made by the defendant (sub-rule (2)). The court found that the defendant had submitted an explanation for delayed payments which was not controverted and that neither the trial court nor the revisional court had adequately considered that representation before striking off the defence. The court held that an order striking off defence can be passed only after due consideration of such representation.
  3. Interpretation of "may" in Rule 5: The court reviewed conflicting authorities. It explained that the earlier decision in Sohan Lal had read "may" as "must," making striking off obligatory upon non-compliance. However, the court found that subsequent Supreme Court authority in Bimal Chand Jain established that "may" vests a power, not an obligation; the power must not be exercised mechanically and courts retain discretion to refuse to strike off defence where facts and circumstances warrant. The court agreed with this purposive and discretionary interpretation.
  4. Nature and effect of delayed payments: The court noted the factual position that all rent due up to February 1980 had been deposited by the tenant, though with delays in respect of certain months (and the trial court's order listed specific months with delayed deposits). The court rejected the respondent's submission that some months not mentioned by the trial court were not paid; it interpreted the trial court's omissions to indicate those other months were paid within time. In these facts, there was no justification for striking off the defence for delays after institution of the suit.
  5. Policy and purpose of Rule 5: The court referred to Sultan Ahmad (1983), which explained that Rule 5 is not intended as a device to effect eviction except where there is deliberate default. The court accepted that principle and applied it here, concluding that the defaults were not of the type to warrant striking off defence.
  6. Conclusion of analysis: Combining the binding authority that discourages deciding Rule 5 applications at the arguments stage (Rajendra Pal Garg), the Supreme Court's discretionary approach (Bimal Chand Jain), and the purposive approach (Sultan Ahmad and Jugmandar Das), the court concluded that it was improper for the trial court and revisional court to have struck off the defence without considering the tenant's representation and that the strike-out orders should be quashed.

Holding and Implications

Holding: The writ petition is allowed; the impugned orders of the learned Munsif, Gonda dated 5-4-1980 and the order of the District Judge, Gonda dated 18-12-1980 are quashed. The trial court is directed to consider the defence of the defendant-petitioner and proceed to decide the suit on merits. Parties shall bear their own costs. A copy of the judgment is to be issued to the parties within one week on payment of requisite charges.

Implications:

  • Direct effect: The immediate consequence is that the defendant's struck-off defence is to be restored for consideration by the trial court and the suit is to be decided on merits; the prior strike-off orders have been quashed.
  • On the interpretation of Order XV Rule 5, C.P.C.: The court adopts and applies the line of authority that Order XV Rule 5 confers a discretionary power ("may") rather than an absolute obligation to strike off a defence; the court must consider any representation and exercise its discretion; striking off is not a mechanical penalty for every default. This follows the Supreme Court reasoning in Bimal Chand Jain and the purposive approach in Sultan Ahmad and related authorities.
  • Limitation on timing: The decision underscores that seeking to strike off defence after evidence is closed and at the arguments stage is improper in the circumstances described and may be resisted, referencing Rajendra Pal Garg as authoritative on that point.
  • Broader precedent: The opinion does not purport to establish a new rule of law beyond applying and following the cited authorities; it declines to follow the earlier, stricter reading in Sohan Lal and aligns with later authoritative pronouncements emphasizing discretion and consideration of representations.

Note: This summary is confined to and faithful to the information contained in the provided opinion. No additional facts or inferences beyond the text have been added.

    Bharat Bhushan Misra v. District Judge

    1. Respondent No. 3 Harendra Dutt Tripathi who is the landlord of the house in question filed suit No. 28 of 1977, under S. 20 of U.P Act No. XIII of 72 seeking eviction of the tenant-present petitioner Bharat Bhushan Misraon the ground that he was in arrears of rent from August, 1976. The rate of rent was claimed to be Rs. 70/- per month. The suit was contested, inter alia, on the ground that the rate of rent was Rs. 30/- and not Rs. 70/- per month. The evidence in the suit concluded on 18-1-80 and the suit was fixed for arguments for 7-2-80 from date it was adjourned to 21-2-80. The plaintiff-landlord moved application under O. 15 R. 5 C.P.C, seeking striking off the defence of the tenant on the ground that he failed make the deposits as required under the said provisions. The defendant-tenpnt filed objections raising the plea that the entire rent up to Feb. 1980 had been deposited though rent for certain intermediary months was not deposited strictly within the requisite time of one week from the date of accrual of the rent. Learned Munsif exercising Small Causes powers recorded findings of fact that the defendant-tenant deposited rent for certain months beyond (he permitted time. The details of the default in the form of delayed deposits were given as follows:

    Period for which rent was due deposited on May, 1977 5-7-1977 June, 1977 8-8-1977 August, September & October, 1977 1-12-1977 November, December, 1977 & January, 1978 22-2-1978 February & March, 1978 4-5-1978 May, June & July, 1978 7-9-1978 August, September and October, 1978 16-12-1978. November & December, 1978 8-2-1979 February, Search and April, 1979 7-7-1979 May and June, 1971 August, 1979 September & October, 1979 December, 1979 December, 1979 22-1-1980

    2. The learned trial court on the basis of the delayed payments as above held that the defendant-tenant committed default and failed to comply with the requirements of O. 15, R. 5, C.P.C and this rendered his defence to be struck off. The revision against the judgment and order of the trial court was dismissed by the District Judge, Gonda, on 18-12-1980.

    3. The validity of the impugned orders have been challenged mainly on two grounds, firstly that the explanation offered by the defendant-tenant (present petitioner) for delay in making the deposits of the rent for certain months was not duly considered and secondly that the question for consideration of the application under O. 15, R. 5 C.P.C did not arise at the stage when the suit was listed for arguments. It is also submitted that the provisions of 0. 15. R. 5 C.P.C required to be considered liberally and not literally and strictly as has been done by the two courts in this case.

    4. This is the uncontroverted position that the prayer for striking off the defence under 0. 15, R. 5 C.P.C was made when the suit had reached the stage of arguments. Learned connsel for the respondent had relied on a decision of this Court in Sohan Lal v. Hodal Singh, in Civil Misc. Writ Petn. No. 1947 of 1977, decided on 31-1-1979 as reported in Summary of Cases 1979 (5) All LR 78 : (AIR 1979 All 230). The defence in that case was struck off by the revisional authority. This order was upheld by this Court with the observation that the word ‘may’ even it was prima facie enabling, the legislature used it in the sense of must or shall and a court is obliged to pass an order striking out the defence if the conditions of O. 15, R. 5 C.P.C have not been complied with. It was, however, further observed that under R. 5 a court can after considering any representation made by a tenent allow him further time for Jepositing the rent but this cannot be interpreted as meaning that the striking off the defence is discretionary. The fact that the Legislature has conferred power on a court to extend time that cannot be interpreted to mean that the court left it optional to obey or not.

    5. As against this, there is a recent decision of this court in Rajendra Pal Yarg v. Additional District Judge, Dehradun, (1987) 2 All Rent Cas 289. In that case application under O. 15, R. 5 C.P.C was moved after evidence had been recorded. The trial court rejected this application. The Revisionai court remanded the matter with the direction to the trial court to decide the application as a preliminary issue for striking off the defence under the said provision. The writ petition was allowed with the observation that:

    “Since the plaintiff has already closed his evidence and three witnesses have been examined on behalf of the petitioner, in my opinion, it is not proper to decide the preliminary issue at this stage.”

    The decision in Rajendra Pal Garg's case (1987 2 All Rent Cas 289) being latter, I am bound by it. Even otherwise 1 respectfully agree with the view adopted in Rajendra Pal Garg's case. The power to strike out the defence is conditioned by the fact thai the court is to consider any representation as may be made by the defendant, Such representation made by the defendant as to the default for payment of arrears month after month rent Such representation as is provided in sub-rule (2), is to be made within ten days of the first hearing or, of the expiry of the week referred to in sub-rule (1) as the case may be. Appropriate course for a defaulting tenant obviously is to make representation within the time permitted under sub-rule (2). In the present case however, there was no prayer for striking off the defence and in away that could have become a contributory factor for delayed deposit in respect of certain months. The suit was filed on 30-5-77 and as would appear from the order of the trial court there was no default in payment of arrears of rent for the period prior to April, 1977 and for that reason there was no case to seek striking off the defence. Had any application been moved under O. 15, R. 5 C.P.C at the stage of first hearing of the suit, that would have alerted the defendant and the deposit could have been made month after month as per the requirement of the said provision the plaintiff respondent chose not to seek the striking out of the defence of the defendant-petitioner land delay occurred in payment of rent for Icertian months. The fact, however, remains that admittedly the entire rent due up to February, 1980 had been deposited by the defendant-petitioner. Learned counsel for the respondent submits that rent for the months regarding which there is no reference in the order of the trial court was actually not deposited. This submission cannot be accepted because the position which transpires is that the learned trial court had only mentioned months for which there was delay in payment. As for the other months the payments would obviously have been made within the specified time. In the facts of the present case there was no jusification I for striking off the defence when the evidence had been concluded and the suit was at the largumenl stage.

    6. The defendant-petitioner had submitted his explanation for the delayed payment. It is submitted that the plea of the defedant raised by way of explanation for the delay was not controverted by any objection or affidavit and that the learned trial court or the Revisional Court did not consider the explanation submitted by the defendant-petitioner. As has already been observed order for striking off defence can be passed only after the representation by the defedant has been duly considered. The representation of the defendant-petitioner was, however, not considered in the present case and the impugned orders have been passed mainly on the ground that if there is default in compliance with the conditions of O. 15, R. 5 C.P.C the defence is necessarily to be struck out. The law laid down in Sohan Lal v. Hodal Singh's Case (AIR 1979 All 230) (supra) is no more good law. The provision of 0. 15, R. 5 C.P.C was subjected to interpretation by Hon'ble Surpeme Court in Bimal Chand Jain v. Sri Gopal Agarwal, 1981 All Rent Cas 463: (1981 All LJ 908). Following observations made in that decision may usefully be reproduced:

    “We must remember that no order under sub-rule (i) 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 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 reasons for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, not with standing the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely vests 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 Chand (supra). We are of the opinion that the High Court has placed an unduly narrow construction on the provision of clause (1) of Rule 5 of Order XV”.

    7. This question came up for consideration before this court in Sultan Ahmad v. Gobardhan Das, (1983) 1 All Rent Cas 161). Purpose of R. 5 O. 15 was explained in this case with the observation that it was not intended that this provision may be made basis for eviction of the tenants and should be interpreted to cover only those cases where there was deliberate default in payment of arrears of rent. This decision was given following the observation of the Supreme Court in Bimal Chand Jain's case (1981 4 All LJ 908) (supra) and also in Jugmandar Das v. Ram Phal, 1982 All Rent Cas 2 : (AIR 1982 All 102). I respectfully agree with the view expressed and the interpretation laid down in Sultan Ahmad's case and I am of the view that in the facts of the present case the learned trial and the revisional court ought not to have taken literal and narrow interpretation of the provisions of O. 15, R. 5 C.P.C The explanation submitted by the defendant in the suit merited acceptance. This is not a fit case for exercising discretion in directing defence to be struck off for the default reflected in the delayed deposits of rent for certain months after the institution of the suit. Moreover, this request for striking off the defence ought not to have been considered after the evidence had been closed and the suit was listed for arguments.

    8. For the reasons as above, the writ petition merits to be allowed and the impugned orders requiring to be quashed. The writ petition is allowed and the impugned orders of the learned Munsif Gonda dated 5-4-1980 and also the order of the District Judge, Gonda, dated 18-12-1980 are quashed. The learned trial court shall be required to consider the defence of the defendant-petitioner and proceed to decide the suit on merits. Parties shall bear their own costs. Copy of this judgment be issued to the parties, within one week, on payment of requisite charges.

    9. Petition allowed.

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    Comments

    Bharat Bhushan Misra v. District Judge
    (Jul 25, 1989)