A.N Dikshita, J.:— By this petition under Article 226 of the Constitution the petitioner have claimed a writ of certiorari for questioning the judgment and order dated 19-7-1980 passed by respondent no. 3 decreeing the suit and the judgment and the order dated 24-1-81 passed by respondent no. 4.

2. Briefly stated the facts lie in a narrow compass; Respondent no. 1 being the landlord-owner of the suit premises filed a suit in the court of Munsif, Fatehpur for the eviction of the petitioners from the portion in the tenancy and occupation of the petitioners as well as respondent no. 2 who was impleaded as a proforma defendant. Besides claiming a deeree for eviction the respondent no. 1 had also claimed a decree for the racovery of Rs. 892.08 being the arrears of rent besides damages and interest together with pendente lite and future damages for wrongful use and occupation at the rate of Rs. 300.00 per month. A copy of the plaint has been annexed as Annexure-1 to the writ petition. This suit was apparently filed on the basis of a composite notice of demand within the meaning of Section 3(1)(a) of the U.P Temporary Control of Rent & Eviction Act (Act No. III of 1947) as well as under Section 106 of Transfer of Property Act. The respondent no. 1 had also claimed eviction of the petitioners on the grounds enumerated in Sections 3(1)(b) and 3(1)(c) for having caused damages to the tenanted premises as well as also effecting material alterations in it. On coming into force of the Civil Law Amendment Act this suit was transferred to the Court of Judge Small Causes and was proceeded as such. This suit was contested by the petitioners denying the allegations of the respondent no. 1. A written-statement was filed copy where of has been annexed as Annexure-3 to the writ petition. As certain amendments were incorporated in the plaint an additional written-statement which is annexed as Annexure-4 to the petition was filed by the petitioner.

3. In support of his case respondent no. 1 Lalta Prasad and landlord of the premises examined himself as P.W 1 on 28-7-77 while one Raj Bahadur was examined as P.W 2 on 25-8-77. Later on respondent no. 1 was recalled and his statement was recorded on 4-7-80. Their statements have been annexed as Annexures; 5, 6 and 7 respectively to the writ petition.

4. The petitioners while contesting the suit complied with the requirements as enjoined under Section 20(4) of Act XIII of 1972 as well as of the provisions as enshrined under Order XV Rule 5 of the Code of Civil Procedure. However, as rent for the month of January, 1979 which was to be deposited by 7-2-79 could not be deposited, the petitioners filed a tender for depositing the same as well as of the subsequent months. This tender having been allowed the amount was deposited on 1-3-1979.

5. Later on respondent no. 1 filed an application on 18-4-1979 praying for striking off the defence of the petitioners as contemplated under Order XV Rule 5 C.P.C on the allegation that the rent of the premises in dispute for the period January, 1979 which ought to have been deposited by 7-2-1979 was deposited only on 1-3-79. However, prior to the filing of such an application by respondent no. 1 for striking off the defence the petitioners had already deposited the rent as stated above. Opposing the application the petitioners filed objections supported by an affidavit of petitioner no. 2. It was stated on behalf of the petitioner that the rent for the month of January, 1979 which should have been deposited by 7th February, 1979 could not be deposited as the petitioner no. 2 who was doing necessary pairvi on behalf of the other petitioners fell ill on 5-2-79 and remained ill until 27-2-79. The petitioner no. 2 having recovered from the illness immediately rushed to the court, filed the requisite tender which was passed and the rent not only for the month of January, 1979 but also for the month of February, 1979 was deposited on 1-3-1979. The medical certificate in support of his illness issued by Dr. Ram Gopal Gupta was also filed. It was also stated by the petitioners that at no time they had committed any default in the deposit of the rent and it was only on account of the illness that he was prevented in depositing the rent. Significantly the respondent no. 1 did not file any counter-affidavit repudiating the allegations contained in the application which was supported by an affidavit. The statement on oath of petitioner no. 2 thus remained unrebutted on oath.

6. Respondent no. 3 rejected the representation by his order dated 11-9-79 which he construed to be one under sub-rule (2) of Rule 5 of Order IV C.P.C This representation was rejected primarily on the ground that if the petitioner no. 2 was ill the other petitioners could have complied with the formalities as per the provisions of law in depositing the rent for the month of January by 7th February, 1979. An application dated 18-4-79 for stiking off the defence was filed by respondent no. 1 within the meaning of Order XV Rule 5 C.P.C after the rent was deposited by the petitioners. This application was filed in view of the non-compliance of Order XV Rule 5 C.P.C claiming strike off the defence of the petitioners. Further the trial court found that no explanation is forthcoming in the representation in respect of the period from 1st February to 5th February when the petitioner no. 2 was admittedly not ill. It was further found by the respondent no. 3 that as there had been no compliance of the provisions of Order XV Rule 5 C.P.C in the non-deposit of rent by 7-2-79, the defence was liable to be struck off. The application filed by plaintiff-respondent no. 1 for striking off the defence was allowed and defence of the defendant-petitioners was struck off. It may be significant to mention here that the respondent no. 3 did not disbelieve the fact that petitioner no. 2 was solely doing pairvi of the case. Furthermore the respondent no. 3 did not disbelieve that the petitioner no. 2 was not ill and as such the rent could not be deposited in the court on account of his illness. The defence was struck off as stated above on the ground that the petitioner no. 2 was admittedly well during the period 1st February to 5th February, 1979 during which period the rent could have been deposited and the subsequent deposit being beyond the period would be of no avail to the petitioners so as to save them from the penalty of the striking off the defence.

7. The petitioners aggrievd by the order dated 11-9-79 passed by respondent no. 3 preferred a revision under Section 25 of Provincial Small Causes Courts Act which was dismissed by respondent no. 4 (District Judge, Fatehpur) vide his judgment and order dated 25-3-80. The respondent no. 4 based his findings on a different consideration that the affidavit bears the deponent as petitioner no. 1 instead of petitioner no. 2. As petitioner no. 2 was not available, the affidavit of petitioner no. 2 was filed. Anyhow such a controversy was never raised before the respondent no. 3. Finding the ghost story of illness of appellant Kailash Chandra as cooked up the averments of the affidavit were found to be less truthful. There is not even a whisper in the judgments and order of the respondent no. 3 striking off the defence that it had ever disbelieved the factum of illness. Such a finding of fact believed by the respondent no. 3 about the illness of the petitioner no. 2 was disbelieved by the respondent no. 4 thus interfering with the finding of fact and more so when respondent no. 1 had himself not ventured to file any counter affidavit repudiating the fact of illness of petitioner no. 2.

8. The petitioners on the dismissal of their revision application by the judgment and order of respondent no. 4 preferred a writ petition to this Court which however, was dismissed in limine by Hon. A.N Verma, J.

9. In view of the striking off the defence of the petitioners the trial court respondent no. 3 did not permit the petitioners to participate in the proceeding or to produce any oral evidence. The suit was ultimately decreed by the trial court per judgment and order dated 19-7-80. A copy of the judgment and order decreeing the suit is annexed as Annexure 10 to the writ petition.

10. The petitioners being aggrieved from the judgment and order decreeing the suit of respondent no. 3 preferred a revision under Section 25 of the Provincial Small Causes Court Act to the Court of District Judge, Fatehpur respondent no. 4. This revision was dismissed by respondent no. 4, vide judgment and order dated 24-1-81. A copy of the order dismissing the revision is annexed as Annexure: 11 to the writ petition.

11. Thus this petition under Article 226 of the Constitution has been filed for issuing a writ of certiorari quashing the judgment and order dated 19-7-80 passed by respondent no. 3 decreeing the suit and the judgment and order dated 24-1-1981 passed by respondent no. 4 dismissing the revision.

12. Counsel for the parties have been heard at great length.

13. Learned counsel for the petitioners has submitted that the court below erred in law in striking off the defence and as such the judgment and order decreeing the suit ex-parte is vitiated on account of an error apparent on the face of record and the manifest illegality committed by respondent nos. 3 and 4. It has been submitted that there was enough compliance of Order XV Rule 5 C.P.C and the cause for the delay, if any, was fully explained being reasonable. There is merit in the submission. The amount of rent of the month of January was liable to be deposited on 7-2-79 but was deposited on 1-3-79 after getting the tender passed by the trial court. It is from the date when the tender was passed that the petitioner was to explain the delay. Once the trial court (respondent no. 3) has allowed this application for deposit of the amount, it cannot be said that no such permission was available for the deposit of the amount. The delay in depositing the amount to as to avail the benefit to Order XV Rule 5 C.P.C was explained later on when an application for striking off the defence was filed by opposite-party no. 1. The court while permitting the petitioners to deposit the amount had apparently condoned such delay. However, when such an application for striking off the defence was filed an affidavit was filed on behalf of the petitioners that the amount could not be deposited in view of the illness of one of the petitioners. No counter-affidavit was filed still the trial court (respondent no. 3) struck off the defence. The averments as contained in the affidavit in the absence of any counter-affidavit being held were liable to be believed. The trial court thus fell in error in law in striking off the defence. It is also significant that the respondent no. 3 did not disbelieve the factum of illness of petitioner no. 2. The defence was struck off on the premise that petitioner no. 2 was well during the period 1-2-79 to 5-2-79 Such a view is manifestly illegal on the face of it. The postulates of Order XV Rule 5 C.P.C clearly provide for the deposit of the amount by 7th and in case of delay upto a period of ten days. If a person was prevented to deposit the amount even beyond this period it cannot be sustained that he was guilty of not complying with the provisions of Order XV Rules 5 C.P.C and as such cannot be permitted to participate in the proceedings or maintain the defence set up by him. There can be various instances where a person may be prevented. If a person goes out of station and meets with an accident and is admitted to a hospital and the period for the deposit of the amount expires and when an application for deposit is made then it cannot said for non-compliance of Order XV Rule 5 C.P.C his defence is liable to be struck off. This is only one of the reasons that have been mentioned and there may be various other reasons. It is the duty of the court in such a situation to examine liberally the grounds for the delay as it deprives a person of a valuable right to substantiate his defence. A deprivation of such right would be prejudicial to the interest of a person who for some cogent or tangible reasons was prevented in complying with the tenets of the statute.

14. However, respondent no. 4 went further in examining the findings of fact instead of scanning the legality of the order regarding striking of defence.

15. Although a writ against the order of striking off the defence passed by the respondent no. 3 and maintained by respondent no. 4 was no doubt rejected in limine but that by itself would not act as estoppel against the petitioners and the petitioners are fully competent to raise the plea after the suit was decreed ex-parte. It cannot act as res-judicata against the petitioners.

16. In the case of Hashnak Singh v. Union of India . 1979 3 SCC 135 it was held that if a petition under Article 226 is dismissed not on merits but because an alternative remedy was available to the petitioner or that the petition was dismissed in limine without speaking other such dismissal is not a bar to the subsequent petition under Article 32. It was held as under:

“It must follow as a necessary corollary that a subsequent petition under Article 226 would not be barred by the principles analogous to res-judicata.”

17. While distinguishing the case of Daryao v. State of U.P . A.I.R 1961 S.C 1457. the ratio as propounded in the case of Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras . A.I.R 1968 S.C 1196. was accepted. It was further held by the Supreme Court while examining the case of Daryao v. State of U.P (supra) in the case of P.D Sharma v. State Bank Of India . A.I.R 1968 S.C 985. the preliminary objection about the bar of res-judicata was negatived. It was held in the case of Hoshnak Singh v. Union Bank of India (supra) as under:

“It is therefore, incontrovertible that where a petition under Article 226 is dismissed in limine without a speaking order such a dismissal would not constitute a bar of res-judicata to a subsequent petition on the same cause of action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of revision petition under Section 33 of the 1954 Act which remedy he availed of and after failure to get the relief he moved the High Court again for the relief. It would be incorrect in such a situation to dismiss the petition on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revisional authority and, therefore, the challenge on the fresh cause of action to the order made by the revisional authority would of necessity be a challenge to the revisional order also and the petition would be barred by the principles analogous to res-judicata as the first order had become final. The High Court was clearly in error in dismissing the petition on the short ground.”

18. Another fact which cannot be ignored is that the application for the striking off the defence was filed much later than the deposit. On the day of the application the amount was already in deposit by an order of the court. The petitioners cannot be penalised to the extent for the month of January when the petitioners promptly deposited the amount which became due. The bonafides of the petitioners thus stand established.

19. Neither any lapse on the part of the petitioners has been shown nor any malafides have been attributed, if the petitioner who was doing the pairvi of the case was ill, then the penalty striking off the defence ought not to have been awarded and forfeit a valuable right to keep his tenancy intact for a paltry sum.

20. In the case of Smt. Dharamwati Devi v. V. Addt. District Judge, Gorakhpur . 1985 2 A.R.C 14. it was held that for a small amount of Rs. 29.20 which was sought on the first date of hearing the defence within the contemplates of Order XV Rule 5 C.P.C ought not to be struck off.

21. In the case of Smt. Leela Devi v. Smt. Shanti Devi Jaiswal . 1985 2 A.R.C 144. it was held that a liberal view in the deposit of the amount shall be taken and on account of erroneous advice by the counsel a person cannot be deprived of setting up his defence.

22. In the case of Vimal Chand Jain v. Sri Gopal Agarwal . 1981 A.R.C S.C 463. the Supreme Court held that the powers of the court under Order XV Rule 5 C.P.C are discretionary. It was held as under:

“sub-rule (2) of Order XV of the code obliges the Court before making an order of striking off the defence to consider any representation made by the defendants in that behalf. In other words the defendant has been vested with a statutory right to make a representation to the Court against his defence being struck off. If a representation is made, the Court must consider it on its merits and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now it is not impossible that the record may contain such material already. In that event, can it be said that Sub-Rule (1) obliges the court to stike off defence. It must be remembered that an order under Sub-Rule (1) 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 reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2) the defence 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.”

23. This discretion has to be exercised in a judicial manner and when cogent and sufficient reasons were set forth explaining the delay occasioned in the deposit of rent the respondent no. 3 as well as the respondent no. 4 erred in law in disregarding it. The valuable right of the defendant to contest the suit was thus denied. In any case the delay being bonafide and having been fully explained the technicality should not prevail much to the prejudice of a person whose tenancy is at stake.

24. In the case of Gopal v. Pyare Lal . 1985 1 A.R.C 131. it was held that even in the absence of representation by the tenant it was open to the court to have accepted the written-statement. Here no representation was made but the court allowed the deposit. It was only at a later stage that an application for striking off the defence was filed and which was allowed. It is clear that justice has not been advanced in the case by the striking off the defence in the manner where the tenant has been a good pay master as set up by him in his written-statement. Under such circumstances such exercise of discretion by the court operates harshly in the striking off the defence.

25. In the case of Smt. Rama Devi v. IV Addl. District Judge, Deoria . 1985 1 A.R.C 507. a similar view was taken that in the absence of any representation being made by the defendant for condoning the delay in making the deposits the defence was not liable to be struck off as duty is cast on the court to consider all the facts and circumstances existing on record before passing an order striking off defence under Order XV Rule 5 C.P.C It has been held on more than one occasions that even if the deposit is illegal it would enure for the benefit of the tenant.

26. In the case of Ram Das v. VI Addl. District Judge, Azamgarh . 1985 2 A.R.C 188. it was held that the provisions of Order XV Rule 5 C.P.C should be construed liberaily.

27. In view of the above the order striking off the defence passed by the trial court and the revision preferred against that order maintaining the striking off the defence are liable to be set aside and as such deserved to be quashed. The judgment and order decreeing the suit ex-parte in the absence of any defence also deserve to be set aside and the case as such is liable to be remanded back to the trial court for disposal according to law on the basis of the defence set up by the petitioners.

28. It was further urged on behalf of the petitioners that in the instant case even if the defence was struck off a duty was cast on the court to examine whether the suit could be decreed in the absence of any defence. There may be instances where a person may not file a written-statement but may still participate in the proceedings just to explore the truthfulness of the adversaries case. It is found in the instant case that the petitioners were precluded from participating in the proceeding. Such a situation has arisen on an erroneous assumption of law. Eeven after the striking off the defence a person has a right to participate in the proceeding as has been held in the case of Joginder Singh v. Teerth Mal.11 Whenever the defence of a tenant is lawfully struck off then he may not be permitted to tender evidence or examine any witness in support of the case. But still the tenant cannot be prevented from cross-examining the plaintiff's witnesses and from showing that on the basis of material on record the plaintiff was not entitled to any decree. On this ground also the judgment and order decreeing the respondent no. 1's suit exparte in default of the petitioners is liable to be set aside.

29. Another argument advanced on behalf of the counsel for the petitioner is that the notice is illegal and does not validly terminate the tenancy of the petitioner as catena of decisions are there that the tenancy cannot be terminated in part and such a notice would only be illegal and invalid. It is open to the parties during the trial to point out such invalidity and at this stage as the case is being remanded back to the trial court afresh according to law it is not expedient to examine the correctness of the submission.

30. Learned counsel for the petitioner then very strenuously submitted that the respondent no. 4 while dismissing the revision preferred against the judgment and order passed by respondent no. 3 decreeing the suit in default has committed a patent error of law in coming to a conclusion that the scope of revision under Section 25 of the Small Causes Courts Act is almost similar to the scope of a revision under Section 115 C.P.C There appears to be merit in this submission. The respondent no. 4 while dismissing the revision has held that the scope of revision under Section 25 of the Small Causes Court Act is almost similar to the scope of a revision under Section 115 C.P.C and in both the cases unless it is shown that the trial court has acted with material irregularity or has not exercised the jurisdiction vested in it or has recorded a perverse finding the revision will not lie. Such a view as has been held by the respondent no. 4 is contrary to the catena of decisions where it has been held that the scope of revision under Section 25 of the Small Causes Courts Act is much wider than the scope of revision under Section 115 C.P.C

31. In Ram Krishna Shukla v. Sri Ramjanki through Sri Rambalak Das . A.I.R 1957 Patna 168. a similar view was taken that under Section 25 of the Small Causes Courts Act the High Court has wider power of interference than under Section 115 C.P.C Of course the findings of fact recorded by the trial court cannot be reversed but interference on the findings of the trial court would be achieved where it has taken an erroneous view of law.

32. In Mumtaz Nabi v. District Judge, Pilibhit . 1982 A.L.J 1361. this court took the view that it is well-known that the scope of revision under Section 25 Small Causes Courts Act is restricted. It may not be so restricted as the scope under Section 115 C.P.C Nonetheless the scope is limited in comparision to the regular first appeal. It is thus abundantly clear that the respondent no. 4 while dealing with the revision preferred under Section 25 committed an error in law and the order dismissing the revision has to be set aside. Accordingly the judgment and order dated 19-7-BO decreeing the suit passed by the respondent no. 3 and the judgment and order dated 24-1-81 dismissing the revision passed by respondent no. 4 thus deserve to be quashed. Similarly the order dated 19-7-79 passed by respondent no. 3 striking off the judgment and order dated 25-3-80 dismissing the revision preferred against it also deserve to be quashed.

33. In the result the petition succeeds and is hereby allowed with costs througout. The judgment and decree dated 19-7-1980 passed by the respondent no. 3 and the judgment and order dated 24-1-1981 dismissing the revision passed by respondent no. 4 are hereby quashed. Similarly the order dated 11-9-79 passed by respondent no. 3 striking off the defence and the judgment and order dated 25-3-1980 dismissing the revision preferred against it are also quashed. The case is remanded back to the court of Judge Small Causes, Fatehpur for disposal according to law in the light of the observations made above.