A.B Srivastava, J.:— By means of this writ petition under Article 226 of the Constitution the petitioner-tenant has assailed an order dated 17.8.1992 of the J.S.C.C Jhansi allowing an application under Order 15, Rule 5 C.P.C of the respondents No. 1 and 2, the landlords, and striking off the petitioner's defence, and an order dated 1.2.1994 of the District Judge, Jhansi confirming the same in revision.
2. This writ petition is being disposed of finally at the admission stage as requested by both the parties, the learned counsel for the caveator, respondents No. 1 and 2 stating that he does not propose to file any counter affidavit in view of the relevant material being available on record.
3. Learned counsel for both sides have been heard. The S.C.C Suit for ejectment, arrears of rent from 1.2.1986 and damages was filed by the respondents against the petitioner.
4. The petitioner deposited amount under Section 20(4) of the Act 13 of 1972 which he claimed to be the full amount required to be deposited by him. Besides, he also started depositing the monthly due in respect of the premises in question as required under Order 15, Rule 5-C.P.C On 20.11.1987 an application was moved by the respondents to strike off the defence alleging that the monthly amount has not been deposited regularly. The petitioner contested this application and on 15.4.1988 also made an application to the effect that he had been depositing monthly rent in accordance with the instructions of his counsel and the delay, if any, in depositing some of the amounts being unintentional, it may be condoned.
5. Before the learned J.S.C.C the defendant also pressed for deciding his prayer for being relieved against the liability for eviction in view of the deposit under Section 20(4). The learned J.S.C.C directed both the questions under Section 20(4) of Act 13 of 1972 and Order 15, Rule 5 C.P.C to be considered at the stage of final hearing. On revision preferred by the petitioner, however, the District Judge setting aside the said order directed the matter relating to striking off defence under Order 15, Rule 5 C.P.C to be disposed of first. The J.S.C.C by his order dated 17.8.1992 rejected the application dated 15.4.1988 of the petitioner holding that the rent from June, 1987 to October, 1987 was deposited on 24.2.1988 and from November, 1987 to January, 1988 was deposited on 24.7.1988, no application for condonation of delay at the time of these deposits was made. As per Rule 5 of Order 15 the rent is required to be deposited within a week from the date it become due and any representation for delay could be made only within ten days from the due date of deposit. In revision the District Judge by his order dated 1.2.1994 affirmed the said order.
6. A perusal of the order dated 10.2.1994 of the District Judge would go to show that all along in his judgment he tried to dilate upon the ingredients relating to the application or otherwise of the provision of Section 20(4) of Act 13 of 1972 although he was not seized of the said question, the same not having been decided by the trial court. On the other hand, he only made a passing reference to the question relating to the validity or otherwise of the order striking off the defence under Rule 5 of Order 15 C.P.C The impugned order of the learned District Judge thus is unsustainable being based on no reasons.
7. As far as the fact of delay in deposit is concerned, there is no dispute at this stage and it is also apparent from the order of the J.S.C.C that the rent for 5 months at one stretch and three months at another was not deposited within one week from the date of accrual and thus there was a delay. It is also, however, clear from Annexure “S.A 1” to the supplementary affidavit of the petitioner that he made a representation on 15.4.1988 regarding the delay, before the application for striking off the defence was considered. The ground stated therein was that the petitioner acted on the instructions of his counsel in the lower court in the matter of deposit of rent. In other words, his explanation was that the delay was unintentional and was occasioned on account of the counsel not advising him in due time to make the deposit. Neither the learned J.S.C.C nor the revisional court has doubted this contention of the petitioner. The only ground which weighed was that the representation was not made within ten days from the date of default.
8. The law in this regard, however, is not that in each and every case of delay, or lack of a formal representation, the defence should necessarily be struck off. The intention of the legislature in enacting this provision was to ensure the payment of rent or equivalent amount as damages each month to the landlord without the necessity of his having recourse to any formal process, by fastening the responsibility on the tenant to keep on depositing the amount. It has been laid down by the Supreme Court in Vimal Chandra v. Gopal Agrawal . 1981 A.W.C 529., that even if no representation has been made in writing, the Court was not obliged to strike off the defence and it will be a matter for the judgment of the Court in every case to decide whether on the material before it, notwithstanding absence of a representation, the defence should be struck off or not. This Court also in a catena of decisions held that whether the delay was inadvertent or unintenational and amount has ultimately been deposited, striking off the defence would not be appropriate. (See Smt. Kaniz Fatma v. Mahesh Chand . 1986 2 A.R.C 117. and Kailash Chandra v. Lalta Prasad . 1986 2 A.R.C 342.. No different view has been taken by this court with regard to these principles in Uma Kant Mukerji v. IInd Additional District Judge, Varanasi . 1983 A.W.C 653.. In the said case the order striking off the defence was upheld in view of a clear finding of fact that the grounds shown in the representation for the 9 defaults in depositing the monthly rent, were not established. In the instant case as already pointed out above, the plea of the petitioner about delay in deposit having inadverently occurred on account of lack of suitable advice from the counsel has not been repelled by the court below. In this view of the matter, there was no justification in law to strike off the defence of the petitioner. Both the impugned orders, thus, suffer from a manifest error of law and deserve to be set aside.
9. The writ petition is accordingly allowed. The impugned orders dated 17.8.1992 and 1.2.1994 respectively of the J.S.C.C and the District Judge, Jhansi striking off the defence of the petitioner are quashed. The learned J.S.C.C will proceed to dispose of the suit as expeditiously as possible. No orders as to costs.
10. Petition Allowed.