BAL GOPAL MAHESHWARI & ORSversusSANJEEV KUMAR GUPTA

                      [2013] 9 S.C.R. 283


            BAL GOPAL MAHESHWARI & ORS ..                            A
                                v.
                 SANJEEV KUMAR GUPTA
               (Civil Appeal No. 7279 of 2013)
                      AUGUST 30, 2013
                                                                     B
  [SUDHANSU JYOTI MUKHOPADHAYA AND KURIAN
                 JOSEPH, JJ.]

     Code of Civil Procedure, 1908:
                                                                     c
     0. 15, r. 5 - Striking off the defence - Suit for eviction on
ground for default in payment of rent - Tenant filing written
statement belatedly - Application by land-lord for striking off
 the defence as defendant failed to deposit the rent even after
receipt of notice - Allowed by trial court and revisional court
                                                                  0
- Order set aside .by High Court in a petition under Art. 227
of Constitution - Held: Trial court fully applied its mind while
 exercising its discretionary power to strike off the defence -
 Revisional court noticed the grounds and, exercising its
revisional jurisdiction, affirmed the order - Order passed by E
 courts below were not perverse nor had they exceeded their
jurisdiction - Therefore, it was not open to High Court to sit
 in appeal under Art. 227 of the Constitution to alter such
 findings of fact and to accept the written statement without any
ground "-Judgment of High Court is set aside - Constitution
 of India, 1950 - Art.227.                                        F

     The appellant filed a suit for eviction of the
respondent-tenant from the suit premises, viz. a shop, for
default in payment of rent and for arrears thereof. The
defendant belatedly filed the written statement and did G
not deposit the rent on the first date of hearing, The
application filed by the plaintiff under 0.15, r.5 CPC for
striking off the defence was allowed. The revision of the
tenant was dismissed. However, the High Court in the
                           28~                             H
    284      SUPREME COURT REPORTS            [2013) 9 S.C'.R.


A   petition filed by the tenant under Art. 227 of the
    Constitution of India, 1950, set aside the orders of both
    the courts below.
          Allowing the appeal, the Court
B      HELD: 1.1. In the instant case, both the courts below
  noticed several defaults committed by the respondent in
  depositing the rnonthly rent. The trial court fully applied
  its mind while exercising its discretionary power to strike
  off the defence. The revisional court noticed the grounds
c and, exercising its revisional jurisdiction, affirmed the
  order passed by the trial court. The power to strike off the
  written statement vested under r.5 of 0. 15, CPC was
  exercised by the lower courts after going through the
  facts of the case. [Paras 10 and 15] [288-E; 293-H; 294-
D A-BJ
         Smt. Satya Kumari Kamthan v. Noor Ahmed and Others
    1992 (2) Allahabad Rent Cases 82 (SC); Bimal Chand Jain
    v. Sri Gopal Agarwal 1982 (1) SCR 124 = (1981) 3 SCC 486
    - relied on
E
       Mangat Singh Trifochan Singh v. Satpal 2003 (4) Suppl.
    SCR 54 = (2003) 8 SCC 357 - referred to
      1.2. The High Court failed to give any ground while
  exercising its inherent power under Art. 227 of the
F Constitution of India, but merely observed that the
  Supreme Court has held that the Court has jurisdiction
  and discretion to accept the written statement even after
  expiry of 90 days from the date of service of summons
  on payment of heavy cost. The defendant has neither
G cited any decision nor has he shown any ground for
  acceptance of written statement even after expiry of 90
  days from the date of service of summons on payment
  of heavy cost. The order passed by the trial court by
  exercising its discretionary power and the order passed
H by the revisional court affirming the trial court order were
   BAL GOPAL MAHESHWARI v. SANJEEV KUMAR                     285
                  GUPTA
 not perverse and both the courts below have not A
 exceeded their jurisdiction. Therefore, it was not open to
 the High Court to sit in appeal under Art. 227 of the
 Constitution to alter such finding of facts and to accept
 the written statement without any ground. The judgment
 passed by the High Court is set aside. [Para 16-17] [294- B
 C-G]
                       Case Law Reference:
   1982 (1) SCR 124               relied on           Para 12
   1992 (2) Allahabad Rent                                         c
   Cases 82 (SC)                  relied on           Para 13
   2003 (4) Suppl. SCR 54         referred to         Para 14
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. D
 7279 of 2013.
      From the Judgment and Order dated 17 .09.2007 of the
 High Court of Judicature at Allahabad in Civil Misc. Writ
 Petition No. 44387 of 2007.
                                                                   E
      Anis Ahmed Khan for the Appeilants.
     D.N. Goburdhan, Rakesh Mittal, Prabal Begche for the
 Respondent.
      The Judgment of the Court was delivered by                   F
        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Leave
  granted. This appeal is preferred by the appellants against the
  judgment and order dated 17th September, 2007 passed by
  the learned Single Judge, High Court of Judicature at Allahabad
  in Civil Miscellaneous Writ Petition No. 44387 of 2007. By the G
  impugned judgment, the High Court exercised its revisional
  jurisdiction under Article 227 of the Constitution of India and set
  aside the orders dated 31st May, 2007 and 9th January, 2006
  passed by the District Judge, J.P. Nagar in S.C.C Revision
. No.1 of 2006 and Civil Judge, (S.D.), J.P. Nagar in Suit No. H
    286     SUPREME COURT REPORTS                    [2013) 9 S.C.R.


A   17 of 1998 respectively. Thus, defence of the respondent which
    was struck off by the Courts below was restored by the High
    Court.

         2. The appellants filed Suit No. 17 of 1998 on 21st
    September, 1998 before Civil Judge (S.D.) for eviction of the
B
    respondent-defendant-tenant from the suit premises, the shop
    located at Mohalla Raju Sarai Kanth Road, Amroha Distt., J.P.
    Nagar on the ground of arrears of rent and default.

          3. lnspite of receipt of notice, the respondent did not
c   choose to file written statement within the specified period. After
    long delay, the respondent filed his written objection on 3rd
    April, 1999 against which the appellant-plaintiffs filed an
    application for striking off the defence on the ground that the
    respondent failed to deposit the rent, the damages due and the
D   cost of the suit inspite of order dated 16th December, 1998,
    the first date of hearing and also failed to deposit water tax and
    house tax and thereby not complied with the provisions under
    Order XV Rule 5 of the Code of Civil Procedure ('CPC' for
    short).
E       4. The learned C.ivil Judge (S.D), J.P. Nagar by order
    dated 9th January, 2006 allowed the application of the
    appellant-plaintiffs and struck off the defence of the respondent.

         5. Against the said order, the respondent filed revision
F   application in S.C.C R.No.1 of 2006 before the District Judge,
    J.P. Nagar in February, 2006. The District Judge, J.P. Nagar
    by impugned order dated 31st May, 2007 dismissed the same
    and affirmed order dated 9th January, 2006 passed by the Trial
    Court.
G
          6. The respondent thereafter f:led a petition under Article
    227 of the Constitution of India before the High Court of
    Judicature at Allahabad registered as Civil Miscellaneous Writ
    ·~etition No. 44387 of 2007. The learned Single Judge passed
    the following order:
H
  BAL GOPAL MAHESHWARI v. SANJEEV KUMAR                       287
  GUPTA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     " Heard learned counsel for the parties.                         A
           This is. tenant's writ petition directed against the
     order striking off his defence. The Trial Court!JSCC/Civil
     Judge (S.D.), J.P. Nagar passed the order striking off the
     defence on 9.1.2006 in SCC Suit No.17of1998. Against
     the said order, petitioner filed SCC Revision No. 1 of 2006      B
     before the District Judge, J.P. Nagar and the same was
     dismissed on 31.5.2007.

           Defence has been struck off due to some
     irregularity in deposit of the monthly rent, under the C
     provisions of Order 15 Rule 5 C.P.C. The provision of
     Order 8 Rule 1 C.P.C. is also mandatory in nature.
     However, the Supreme Court has held that still the Court
     has got jurisdiction and discretion to accept the written
     statement even after expiry of 90 days from the date of o
     service of summon on payment heavy cost. The same
     principle may apply to the cases under Order 15 Rule 5
     C.P.C.

            Accordingly, the writ petition is allowed, both the       E
     impugned orders dated 31.5.2007 and 9.1.2006 are set
     aside. The petitioner shall pay Rs.10,0001- as costs and
     the same shall be deposited by the petitioner before the
      Trial Court within 6 weeks from today. In case of default,
     this order shall stand automatically vacated.
                                                                      F
           It is further directed that the Civil Judge (S.D.),
     J.P.Nagar shall make all efforts to decide the aforesaid
     suit within six months."

     7. Learned counsel for the appellants submitted that the         G
 High Court committed a mistake in exercising its jurisdiction
.under Article 227 to set aside concurrent findings of the two
 Courts below against the wilful, habitual, consistent, persistent,
 regular and stubborn defaulter-tenant. The High Court
 exceeded its jurisdiction going beyond the pleadings and facts       H
    288      SUPREME COURT REPORTS                 [2013) 9 S.C.R.


A   and erred by comparing Order XV Rule 5 CPC with Order VIII
    Rule 1 CPC and wrongly gave benefit to the respondent. It was
    further contended that the High Court completely ignored the
    well reasoned finding. of the Courts below which struck off the
    written statement.
B
         8. Per contra, according to counsel for the respondent, the
    lower courts wrongly interpreted Order XV Rule 5 CPC that it
    is mandatory in nature whereas the court has jurisdiction and
    discretion to accept the written statement even after expiry of
    90 days from the date of service of summon on payment of
C   heavy cost as per decision of this Court. It was further
    contended that by the impugned judgment .the said mistake
    committed by the lower courts was corrected by the learned
    Single Judge of the High Court.

D       9. We have heard the learned counsel for the parties and
    perused the record. Both the parties relied upon one or the
    other decision of this Court which will be referred at an
    appropriate stage.

         10. In the present case, we find that both the courts below
E   noticed several defaults committed by the respondent in
    depositing the monthly rent. The aforesaid fact was noticed by
    the District Judge, J.P. Nagar, as mentioned in paragraph 11
    of the order dated 31st May, 2007 and the same is reproduced
    below:
F
                "11. In the present case there are several defaults
          committed by the revisionist in depositing the monthly
          rent as under.

G               The rent of April 1999 must be deposited upto 7th
          May 1999, it has been deposited by delay of 20 days on
          2710511999. No representation in this behalf has been
          given by the tenant explaining the delay. Further the rent
          of June 1999 has not been deposited upto 7th of July
          1999 nor the rent of month of July 99 was deposited upto
H
BAL GOPAL MAHESHWARI v. SANJEEV KUMAR                  289
GUPTA [SUDHANSU JYOTI MUKHOPADHAYA, J.]

 07108199, on the contrary rent of both the months i.e. June   A
 & July 99 has been deposited after a considerable delay
 on 23108199, although including the rent of August 99, as
 well, but no explanation/representation regarding the
 delay in deposit of the month of June and July 99 has
 been furnished. In the same. way, the rent of the month       B
 of September, October-99 has been deposited after
 considerable delay on 0811211999 although the rent of
 November and December-99 has been included therein
 but no explanation of such delay in deposit of rent of
 September and October 99, has been furnished, similarly       c
 the rent of Jan, 2000 was deposited on 0710312000, and
 no explanation/representation was furnished explaining
 the delay in deposit, although the rent of February, March
 and April 2000 has· been included therein similarly, the
 rent of May and June - 2000 has been deposited on 271         0
 0712000 including the rent of Month of July and August
 2000 but no explanation/representation regarding the
 delay deposit of the month of May and June-2000 was
 given by the tenant. Further the rent of Sep.2000 was
 deposited on 0611112000 in which the rent of October,         E
 November and December-2000, was included. The
 delay deposit of rent of the month of September has not
 been explained. The rent of January,2001 was deposited
 after a considerable delay on 2210312001 in which the rent
 up to April 2001 has been deposited the rent of May,
 June, July, August, September, October and November           F
 2001, total 7 months of rent was deposit on 511212001
 including the month of December 2001, there is no
 explanation/representation regarding this huge delay of
 deposit of the rent of month May, June, July, August,
 September and October, 2001. The rent of January and          G
 February was deposited on 1110312002 no
 representation/explanation of this delay, too has been
 given, the rent of September, October, November and
 December 2002 was deposited for the first time on 111
 1212005 by tender 1221C after moving the application for      H
    290       SUPREME COURT REPORTS                    [2013] 9 S.C.R.


A         striking off the defence. In this deposit as well there is no
          representation/explanation of this delay of more than two
          years. The rent of Jan 2003 was deposited on 18102103,
          rent of September, October, November and December
          2003 and Jan 2004 was deposited on 0410312004 in this
B         deposit as well no representation/explanation of any kind
          has been given by the tenant. The rent of May, June, July
          2004 has been deposited on 2510812004 in this deposit
          as well no delay has been explained......................... The
          tenant in this case only made representation that he had
C         deposited the correct money rent but he did not file any
          application for extension of time. In the circumstances,
          therefore, the courts below were right in holding that there
          was a default in payment of the monthly rent and since
          there was also no application for extension of time under
D         sub rule (2) of Rule 5 of Order XV C.P.C. the defence
          was liable to be struck off. The order of the High Court in
          the writ petition is therefore not sustainable. "

         11. Rule 5 of Order XV, Code of Civil Procedure, was
    enacted by the U.P. Civil Laws (Amendment) Act, 1972 and
E   the said Rule reads as follows:

                "5. Striking off defence for failure to deposit
          admitted rent-(1) In any suit by a lessor for the eviction
          of a lessee after the determination of his lease and for
F         the recovery from him of rent or compensation for use
          and occupation, the defendant shall, at or before the first
          hearing of the suit, deposit the entire amount admitted
          by him to be due together with interest thereon at the rate
          of nine per cent per annum and whether or not he admits
G         any amount to be due, he shall throughout the
          continuation of the suit regularly deposit the monthly
          amount due within a week from the date of its accrual and
          in the event of any default in making the deposit of the
          entire amount admitted by him to be due or the monthly
          amount due as aforesaid, the Court may, subject·to the
H
  BAL GOPAL MAHESHWARI v. SANJEEV KUMAR                      291
  GUPTA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    provisions of sub-rule (2) strike off his defence.             A
          Explanation 1-3        *                *      *     *

          (2) Before making an order for striking off defence,
    the court may consider any representation made by the
    defendant in that behalf provided such representation is       B
    made within ten days of the first hearing or, of the expiry
    of the week referred to in sub-section (1 ), as the case may
    be.

          (3) The amount deposited under this rule may at          c
    any time be withdrawn by the plaintiff:

          Provided that such withdrawal shall not have the
    effect of prejudicing any claim by the plaintiff disputing
    the correctness of the amount deposited:
                                                                   D
          Provided further that if the amount deposited
    includes any sums claimed by the depositor to be
    deductible on any account, the Court may require the
    plaintiff to furnish the security for such sum before he is
    allowed to withdraw the same."                                 E

    12. In Bimal Chand Jain v. Sri Gopal Agarwal (1981) 3
SCC 486, this Court having noticed the aforesaid provision held
as follows:

     "6. It seems to us on a comprehensive understanding of        F
    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 G
    further, whether or not he admits any amount 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- H
    292       SUPREME COURT REPORTS                    [2013) 9 S.C.R.


A          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
B          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
c          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
D          that sub-rule (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
E
           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
F          sub-rule (2), the defence should or should not be struck
           off. The word "may" in sub-rule (1) merely vested 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
G          Puran Chand1. 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."

      13. The same very provision of Rule 5 of Order XV fell for
H consideration before this Court in Smt. Satya Kumari Kamthan
  BAL GOPAL MAHESHWARI v. SANJEEV KUMAR                        293
  GUPTA [SUDHANSU JYOTI MUKHOPADHAYA, J.]
v. Noor Ahmed and others 1992 (2) Allahabad Rent Cases                 A
82 (SC). That was the case when the plaintiff filed an
application for striking off, the tenant filed a written statement
objecting to the striking off on the ground that there was no
default in payment of the monthly rent as provided under Rule
5(1) of Order XV. l:he Courts below did not accept the said            B
contention and found as a fact that there was a default in
payment of the admitted rent. The Courts below also noticed
that though there was a default there was no "representation"
by the tenant giving any excuse for not depositing the correct
amount or praying for extension of time for deposit for valid          c
reasons and that, therefore, the plaintiff of the said case was
held to be entitled to get the defence struck off. This Court
referring to the provisions of Rule 5 of Order XV and relying
on decision of this Court in Bimal Chand Jain (supra) held that
if the tenant has not made any representation under Rule 5 of
                                                                       0
Order XV and there is a default in payment of rent, it is open
to the court to strike off the defence. The word "representation"
may cover a "representation" in answer to an application for
striking off or a "representation" praying for an .extension of time
for making the deposit on sufficient grounds.
                                                                       E
      14. In Mangat Singh Trilochan Singh v. Satpa/ (2003) 8
SCC 357 this Court noticed the discretionary power of the Trial
Court in the matter of striking off defence under Order XV of
Rule 5 as in the said case Trial Court refused to strike off the
defence of the tenant on the ground that a substantial question        F
of jurisdiction was involved. The Trial Court also came to the
conclusion that as arrears of rent having been deposited in
Bank there were no mala fide on the part of the tenant and that
the arrears were thereafter deposited in court with an
application or representation made in accordance with sub-rule         G
(2) of Rule 5. This Court held that refusal to strike off defence
and acceptance of deposit of arrears of rent was justified.

     15. In the present case, the Trial Court fully applied its mind
while exercising its discretionary power to strike off the defence.
                                                                       H
    294     SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A   The grounds were noticed, as mentioned at Paragraph 11 of
    the judgment passed by the District Judge and is quoted above.
    Learned District Judge exercising its revisional jurisdiction,
    affirmed the order passed by the Trial Court. The aforesaid
    judgment(s) cannot be said to be perverse nor can it be said
B   that the courts below have exceeded or failed to exercise their
    jurisdiction. The power to strike off the written statement vested
    under Rule 5 of Order XV was exercised by the lower courts
    after going through the facts of the case.

        16. lnspite of the aforesaid fact, we find that the High Court
C failed to give any ground while exercising its inherent power
  under Article 227 of the Constitution of India. Learned Single
  Judge by impugned judgment observed that the Supreme Court
  has held that the Court has jurisdiction and discretion to accept
  the written statement even after expiry of 90 days from the date
D of service of summons on payment of heavy cost. Defendant
  has neither cited any decision nor shown any ground for
  acceptance of written statement even after expiry of 90 days
  from the date of service of summons on payment of heavy cost.
  The order passed by the Trial Court by exercising its
E discretionary power and the order passed by the Revisional
  Court affirming the Trial Court order were not perverse and both
  the courts below have not exceeded their jurisdiction. Hence,
  it was not open to the High Court to sit in appeal under Article
  227 of the Constitution of India to alter such finding of facts and
F to accept the written statement without any ground.

       17. For the reasons aforesaid, we have no option but to
  set aside the impugned judgment dated 17th September, 2007
  passed by the learned Single Judge, High Court of Judicature
G at Allahabad in Civil Miscellaneous Writ Petition No.44387 of
  2007 and allow the appeal. The Trial Court is expected to
  decide the Suit No.17 of 1998 expeditiously as the matter is
  pending since long. No costs.

    R.P.                                            Appeal allowed.
H