1. This Petition arises in the following circumstances. Mohammad Hussain, the opposite-party no. 1 filed a suit against Mahboob alias Chhella, the petitioner in the Court of Judge, Small Causes for a decree of ejectment of the defendant and for recovery of arrears of rent and damages alleging that the plaintiff had determined the tenancy of the defendant by a notice of demand dt. 21-9-1979 sent to the defendant but he committed default in making payment of rent and in not vacating the premises in question. The suit was resisted and a written statement was filed. On the basis of the pleadings of the parties issues were framed. Issue no. 5 was as to whether the defence was liable to be struck off under Order XV Rule 5 of the Code of Civil Procedure. Both, plaintiff and the defendant adduced oral and documentary evidence in support of their contentions. The trial court decreed the suit.

2. It recorded a finding on issue No. 5 that the defence was liable to be struck off under XV Rule 5 of the Code of Civil Procedure. It also held that the defendant was a tenant at the rate of Rs. 50/- per month and that he had committed default in making payment of arrears of rent after the service of the said notice. Aggrieved by that decision the defendant filed a revision in the Court of the District Judge, Lucknow. It was heard by the learned II Additional District Judge, Lucknow, who dismissed the revision petition. The revisional court below concurred with the trial court that the written statement was liable to struck off under O. XV R. 5 of the Code of Civil Procedure. It also concurred with the trial court that the defendant had committed default in payment of rent within the meaning of S. 20(2)(a) of the U.P Act XIII of 1972 and hence was liable to ejectment.

3. The Petitioner has filed the instant petition under Art. 226 of the Constitution to quash the said two judgments. The petition has been opposed and counter affidavit has been filed.

4. For the petitioner it was submitted that the courts below fall in error in holding that the defence of the petitioner was liable to be struck off under O. XV, R. 5 of the Code of Civil Procedure. The learned II Additional District Judge while Construing Sub-rule (2) of Order XV, Rule 5 of the Code has observed as under:—

“Sub-rule (2) says, before making an order for striking off the defence, the court may consider any representation. This shows that the striking off is postponed till consideration of the representation. If there is a default the court is under duty to strike off, unless it condones under Sub-rule (2). It is true that the adjudication of the application under O. XV R. 5 of the Code, should be decided as a preliminary issue but in this case no procedural irregularity could be said to have been made by the trial Judge as no representation was made by the tenant for condoning the delay in making deposit of ‘monthly rent’ after July, 1981 which ought to have been deposited in the trial court as required by the said amended provision and it being not done no illegality was committed by the trial court in exercising discration to strike off the defence.

5. In my view the learned II Additional District Judge has not correctly interprated the provisions of Sub-rule (2) of O. XV, R. 5 of the Code. This provision of O. XV R. 5 of the Code came up for construction before the Supreme Court in Bimal Chand Jain v. Gopal Agarwal ((1981) 3 SCC 486 : AIR 1981 SC 1657) : (1981 All LJ 908). The Supreme Court has, laid down (Para 6):—

“It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amounts to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit,

“the court may subject to the provisions of Sub-rule (2) strike off his defence.” We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant 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-r. (1) obliges the court to strike off the defence? We must remember 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 a 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 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 (1981 All LJ 82) (Supra)? We are of opinion that the High Court has placed an unduly narrow construction on the provisions of Clause (1) of Rule 5 of Order XV.”

6. It is now well settled that the court is not obliged to strike off the defence in every case of default. The discretion has to be exercised keeping in view the facts and circumstances of the case. Even in the absence of a representation the court may not strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. In the instant case, no doubt, it was urged on behalf of the plaintiff before the trial court that as the defendant had failed to deposit regularly the monthly rent in the court as required under Order XV Rule 5 of the Code, his defence was liable to he struck off. The trial court framed an issue on the point. The Court should have decided that issue as preliminary issue but it did not do so and permitted the parties to lead evidence. The defence was thus not struck off. The plaintiff examined his son as a witness in the case in support of his contentions. The defendant was permitted to cross-examine that witness: then the defendant was permitted by the trial court to examine himself as a witness and the case was fixed for arguments. In these circumstances it has to be concluded by necessary implication that the trial court declined to exercise its discretion to strike out the defence under Order XV Rule 5 of the Code. Rather it allowed the defendant to adduce oral evidence also. It may be noted here that the defendant was allowed to adduce documentary evidence as well. If the defence had been struck out, the defendant was even then entitled to cross-examine the witnesses of the plaintiff but he would not have been entitled to examine his own witness. Any way, the defence was not struck out though there was a request of the plaintiff in that behalf and an issue had also been framed on the point. The defendant as pointed out earlier, was not only permitted to cross-examine the witnesses of the plaintiff but was also allowed to examine himself as a witness and the plaintiff cross-examined him. Impliedly therefore, the discretion was not exercised till then in striking out the defence under Order XV Rule 5 of the Code. The trial court decided that issue No. 5 in the judgment. It also decided other issues on merits. It held that the defence was liable to be struck out but while proceeding to decide the other issues on merits it ignored the evidence adduced by the defendant. The revisional court also ignored the documentary and oral evidence adduced by the defendant while concurring with the findings reached by the trial court on issues 1 to 4. Both the courts thus committed manifest error of law in recording findings on issues No. 1 to 4 but not considering the evidence adduced by the defendant. True, it is that the trial court held that the defence was liable to be struck out but that finding was not reached before oral evidence was recorded and once the trial court permitted the defendant to lead oral evidence also on the point it was the duty of the trial court to decide all the issues on merits by considering not only the evidence adduced by the plaintiff but also documentary and oral evidence adduced by the defendant in the case. The impugned judgments of the courts below thus suffer from manifest error of law resulting in manifast injustice. They are, therefore, liable to be quashed.

7. In the result the petition is allowed with costs. The judgment and decree passed by the trial court dt. 19-5-82, a copy of which is Annexure 3 and the judgment and decree passed by the Court of II Addl. District Judge, Lucknow, dt. 31-8-82, a copy of which is Annexure 5 to the writ petition are quashed. The trial court is directed to decide the suit on merits after considering the evidence both oral and documentary adduced by the plaintiff and the defendant and after hearing the learned counsel for the plaintiff and the defendant. The parties are directed to file a certified copy of this judgment before the trial court and appear before it on 4th Feb. 1983.

8. Petition allowed.