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Saturday, August 31, 2013

Fate of the students already admitted in Medical college after quashing of NEET notification = Apex court held that before quashing NEET Notifications, it saved the admission already made and as such they should not be asked to leave the course = whether the petitioners have any right to continue or the respondents who have been admitted under the Rules have the right of admission.= After the judgment was pronounced, some kind of infantile wisdom which may, in different terminology, be called depraved sense of egocentric knowledge, the Additional Secretary (Health) had conveyed the Government’s decision dated 25.7.2013 which is as under: - “The Dean Goa Medical College, Bambolim-Goa Sub: Decision of the Government regarding Admission to Post Graduate Degree/Diploma Cources at GMC. I am directed to refer to your letter No. Acad/175/G.M.C./2013/441 dt. 23.7.2013 on the subject cited above and to convey the decision of the Government to admit the students for Post Graduate Degree/Diploma based on aggregate MBBS marks, as per existing rules as notified in the Official Gazette Series I No. 50 and Series I No. 51, Notification No. I/B/2033-II/PHD. Provisional admissions given on the basis of the NEET merit earlier thus stands cancelled.”- The candidates, who had qualified in the NEET examination and had been admitted, were compelled to leave the college and the students who had qualified under the Rules were admitted. - This Court in the final judgment had not invalidated the actions taken under the amended regulations and it included the admissions already given on the basis of the NEET conducted by the Medical Council of India. Therefore, there could not have been any scintilla of doubt in any one’s mind that the admissions given on the basis of NEET examination had been protected by this Court and hence, their admissions could not have been cancelled by the State Government.- But, unfortunately, here the authorities of the State Government have felt courageous enough to play possum and proceeded to crucify the fate of the candidates who had been protected by the verdict of this Court. Such an action is absolutely impermissible. Thus analysed the letter dated 25.7.2013 deserves to be lancinated and we so do. The writ petitioners, who have been admitted on the basis of the NEET examination, shall be allowed to prosecute their studies.=We are absolutely conscious of the said position. However, regard being had to the special features of the case and the litigations that have cropped up and the mistake that the State Government has committed, we are inclined to direct that 21 seats transferred to the State quota shall be filled up from among the students who had taken admissions under the 2004 Rules. It needs no special emphasis to state that the admissions and the allocations of the stream shall be on their inter se merit as per the Rules. We may hasten to clarify that none of these candidates shall be allowed to encroach upon the streams that have already been allotted to the petitioners who were admitted having been qualified in the NEET examination. We have been further apprised at the Bar that there are some unfilled seats as some students have left the College. If the vacancies have occurred, the same can also be filled up regard being had to the merit as stipulated under the Rules.- the effect that there should be increase of the seats for the academic year 2013-14 and the students should be adjusted. = Be it noted, an application was filed by the College for enhancement of seats for 2014-15 and during the pendency of this petition there has been a request to the Medical Council of India to prepone it for the year 2013-14. Enhancement of seats requires inspection and is controlled by a set of Regulations and, in any case, the application for 2014-15 cannot be directed to be processed in the current year.; whether the students who cannot be adjusted in the seats of All India quota that have been transferred to the State quota of this year can be adjusted next year. = We are bound by the said precedents. In certain individual cases where there is defective counselling and merit has become a casualty, this Court has directed for adjustment in the next academic session but in the case at hand, it is not exactly so. Though we are at pains, yet we must express that it will not be appropriate to issue directions to adjust them in respect of the subsequent academic year, for taking recourse to the same would affect the other meritorious candidates who would be aspirant to get admissions next year. For doing equity to some in presenti we cannot afford to do injustice to others in future. Therefore, the submission stands repelled.

                  published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40709                                           
  Reportable
                        IN THE SUPREME COURT OF INDIA


                         CIVIL ORIGINAL JURISDICTION


                      WRIT PETITION (C) NO. 598 OF 2013




      Aneesh D. Lawande & others                   … Petitioners


                                   Versus


      The State of Goa and others                  … Respondents


















                               J U D G M E N T




      Dipak Misra, J.



            The present litigation exposits a sad sad scenario.  It  is  sad
      because a chaos has crept in in the lives of some students and  it  is
      further sad as the State of Goa and  its  functionaries  have  allowed
      ingress of systemic anarchy throwing propriety to the  winds  possibly
      harbouring  the  attitude  of  utter  indifference  and  nurturing  an
      incurable propensity to pave the path of  deviancy.  
The  context  is
      admission to Post Graduate courses  in  a  single  Government  medical
      college at Goa.
The insensitivity of  the  authorities  administering
      medical college admissions was  seriously  decried  by  a  three-Judge
      Bench in Convenor, MBBS/BDS Selection  Board  and  others  v.  Chandan
      Mishra and others[1] and further echoed in Medical Council of India v.
      Madhu Singh and others[2].
The Court in Chandan  Mishra  (supra)  had
      approvingly reproduced a sentence from the decision of the High  Court
      that proclaimed in sheer anguish:
“Shakespeare in Othello has  written
      “Chaos is come again”.

      2.    The saga of anguish continues  with  constant  consistency.
 In
      Asha v. Pt. B.D. Sharma University of Health Sciences and others[3]  a
      two-Judge Bench commenced the judgment thus: -
           “Admission  to  the  medical  courses   (MBBS   and   BDS)   has
           consistently been a subject of judicial scrutiny and review  for
           more than three decades. While this Court has enunciated the law
           and put to rest the controversy arising in relation to one facet
           of the admission and selection process to the  medical  courses,
           because of the ingenuity of the  authorities  involved  in  this
           process, even more complex and sophisticated sets  of  questions
           have come up for consideration of the Court with the passage  of
           time. One can  hardly  find  any  infirmities,  inaccuracies  or
           impracticalities in the prescribed scheme and  notifications  in
           regard to the process of selection and grant of admission. It is
           the arbitrary and colourable use of power  and  manipulation  in
           implementation  of  the  schedule  as  well  as  the  apparently
           perverse handling of the process by the persons concerned or the
           authorities  involved,  in  collusion  with  the   students   or
           otherwise, that  have  rendered  the  entire  admission  process
           faulty and questionable before the courts. It is the  admissions
           granted arbitrarily, discriminately or in a manner repugnant  to
           the regulations dealing  with  the  subject  that  have  invited
           judicial catechism. With the passage of  time,  the  quantum  of
           this litigation has increased manifold.”

        3.       We have begun with such a prefatory note and  referred  to
        the  aforesaid  pronouncements  as  the   facts,   as   have   been
        uncurtained, would shock one’s conscience.  A deliberate  labyrinth
        which not only assaults the majesty, sanctity and  purity  of  law,
        but also simultaneously creates a complex situation requiring  this
        Court to intervene in a different manner to redeem the situation as
        far as possible so that there is some sanguine cathartic effect.
        4.       Presently to the facts.
The State of Goa has framed a set
        of Rules, namely, the Goa  (Rules  for  admission  to  Postgraduate
        degree and diploma courses of the Goa University at the Goa Medical
        College) Rules, 2004 (for short “the Rules”).
Rule  3  deals  with
        eligibility, preference and order of merit.  Rule 3(1)  deals  with
        eligibility criteria and Rule 3(2) with preference.  Rule  3(3)  of
        the Rules deals with order of merit.  The relevant part of the said
        Rule is reproduced below:-
           “(3)  Order  of  Merit  –  (i)  The  order  of  merit  shall  be
           determined by the percentage of aggregate marks.

           (ii)  Aggregate Marks – The percentage of aggregate marks  shall
           be arrived at by totaling the marks obtained in all the subjects
           of the 1st, 2nd and 3rd MBBS Examinations and reducing it  to  a
           percentage after the following deductions: -

                      a) 5 per cent of marks shall be  deducted  for  every
                         failure from the marks of the subject failed

                      b) 5 per cent of marks  shall  also  be  deducted  as
                         above, if the student takes a drop in the subject.

           (iii) If two or more candidates secure the  same  marks  in  the
           merit list as drawn above, the marks  obtained  in  the  subject
           shall decide the merit.  In case the subject marks are also  the
           same, the total marks secured by the  candidates  in  the  Final
           M.B.B.S. Examination, or total marks of IInd MBBS Examination or
           total marks  of  the  1st  M.B.B.S.  Examination,  depending  on
           whether the candidate is seeking registration in the clinical or
           para-clinical  or  pre-clinical  subjects  respectively,   shall
           decide the merit.

           (iv)  A candidate, who has failed three times  in  a  particular
           subject, shall not be eligible for registration for  the  degree
           or diplomas for which the marks of that subject are considered.

           (v)   For admission  to  the  postgraduate  degree  and  diploma
           courses, the candidates belonging to the General  Category  will
           be required to obtain minimum 50% and the  candidates  belonging
           to the Scheduled Casts,  Scheduled  Tribes  and  Other  Backward
           Classes will be required to obtain minimum 40%, aggregate  marks
           as determined above.”


        5.       The said  Rule  governs  the  admission  to  the  singular
        medical college  and  the  lone  dental  college,  both  Government
        colleges affiliated to Goa University.
On 9.8.2012 the  Government
        of Goa in the  Department  of  Public  Health,  through  its  Under
        Secretary (Health) communicated to the Dean, Goa  Medical  College,
        as follows: -
           “I  am  directed  to  refer  to  your   letter   No.   Acad/141/
           NEET/12/G.M.C./245 dated 27.6.2012 on the  subject  cited  above
           and to convey approval of the Government for  implementation  of
           the Medical Council of  India’s  Notification  on  the  National
           Eligibility-cum-Entrance Test (NEET) for the Under Graduate  and
           Post Graduate students from the Academic Year 2013-14.”


        6.            In pursuance  of  the  decision  taken  the  students
        appeared in the National Eligibility-cum-Entrance Test (NEET)  held
        in November-December, 2012 for the medical courses and in  January,
        2013  for  the  dental  courses.  
It  is  worthy  to   note   that
        introduction of NEET was made by issue of  a  notification  by  the
        Medical Council of India in exercise of power conferred  on  it  by
        Section 33 of the Indian  Medical  Council  Act,  1956.   The  said
        notification as well as  the  notification  issued  by  the  Dental
        Council of India came to be challenged in Christian Medical College
        Vellore and others v. Union of India and others[4].

        7.  During the pendency of  the  writ  petitions  as  well  as  the
        transferred cases which were transferred from various High  Courts,
        this Court on 13.12.2012 passed the following order:-
           “Place these matters on 15th January, 2013.

           In the meantime,  the  Medical  Council  of  India,  the  Dental
           Council of India, as well as the  States  and  Universities  and
           other institutions, will be entitled to conduct their respective
           examinations for the M.B.B.S., B.D.S. and Post-Graduate courses,
           but shall not declare the results of  the  same,  until  further
           orders of this Court.

           Learned counsel for the respective parties are all  directed  to
           make available their written submissions by 7th January, 2013.

           Let copies of this Order be made available to the  advocates-on-
           record for the respective parties for communication to concerned
           Authorities.

           Wide publicity may also be given to this Order  by  the  States,
           Union of India, Medical Council of India and the Dental  Council
           of India so that the students, who are intending to sit for  the
           entrance examination, may have knowledge of the same.”

                                                       [Underlining is ours]
        8.       After the aforesaid order  came  to  be  passed  the  NEET
        examination was  conducted  for  the  medical  as  well  as  dental
        courses.  On 13.5.2013 this Court referred to the challenge to  the
        notifications, order passed on 13.12.2012 and thereafter passed the
        following order: -
           “3.   On 13th December, 2012, when the matters were taken up for
           consideration, we decided to post the matters for final  hearing
           on 15th, 16th and 17th January, 2013, and allowed the respective
           entrance examinations, which had already been  notified,  to  be
           held, while the hearing progressed. Such  examinations  included
           the National Eligibility Entrance Test(NEET) for both  MBBS  and
           PostGraduate courses in different disciplines, as also  the  BDS
           and MDS  examinations.  Presuming  that  the  hearing  would  be
           completed on the dates  indicated,  we  had  directed  that  the
           Medical Council of India, the Dental Council of India,  as  well
           as the States and Universities and other institutions, would  be
           entitled to conduct their respective examinations for the  MBBS,
           BDS  and  Post-Graduate  courses,  but  the   results   of   the
           examinations were not to be declared until further orders of the
           Court. Consequently, although, the examinations have been  held,
           the results have been withheld and have not  been  declared,  on
           account of the interim order passed by us.

           4. The hearing could not be concluded within 17th January, 2013,
           as we had hoped, on account of the enlargement of the  scope  of
           the hearing and the large number of parties who had to be  heard
           in the matter. In fact, the matters  were  last  heard  on  30th
           April, 2013,  and  it  has,  therefore,  not  been  possible  to
           pronounce judgment before  the  Supreme  Court  closed  for  the
           summer vacations on 10th May, 2013.

           5. While the matters were being heard, we had been  informed  by
           the learned senior counsel appearing for the  Christian  Medical
           College, Vellore,  and  the  Karnataka  Pvt.  Medical  &  Dental
           College, that a large number  of  students  would  be  adversely
           affected and would stand to lose a  year,  if  the  bar  on  the
           declaration  of  their  results  was   not   lifted.   Although,
           initially, we had declined to entertain such prayer, on  account
           of the delay in completion of the hearing and  the  prospect  of
           the students losing a year on  account  thereof,  we  feel  that
           students hoping to gain admission in the MBBS as well  as  Post-
           Graduate  courses  on  the  strength  of  the  results  of   the
           examinations, which have already been held and  for  which  they
           had appeared, should not be denied such  opportunity,  at  least
           for this  year. We are also alive to the fact  that  it  is  the
           Post-Graduate students in the medical colleges, who take  charge
           of the medical treatment of patients in the  hospitals.  Without
           fresh entrants into the Post-Graduate courses, even for a  year,
           the hospitals are likely to be adversely affected on account  of
           lack of doctors to directly take care of  the  patients  in  the
           hospitals.

           6. Apart from the above, the students, who aspire to gain  entry
           into the medical colleges at the MBBS  and  BDS  and  the  Post-
           Graduate levels, have been caught in the  legal  tangle  for  no
           fault of theirs and are the  victims  of  policy  decisions.  In
           order to safeguard their interests, as also the interest of  the
           hospitals, we consider it just and equitable  to  lift  the  bar
           imposed by us on 13th December, 2012, for this  year's  entrance
           examinations and, to that extent, we modify our  order  of  13th
           December, 2012,  and  allow  the  results  of  the  examinations
           already conducted to be declared to enable the students to  take
           advantage of the same for the current year.”

                                                         [Emphasis supplied]
        9.       Pursuant to the aforesaid order, the results of NEET  were
        declared on 16.5.2013.
The writ petitioners herein  secured  ranks
        which entitled them to be admitted to the post graduate courses  in various streams in the State of Goa.

        10.      When the matter was sub-judice before this Court and  this
        Court has been passing interim  orders  regard  being  had  to  the
        numerous  fact  situations,  the  High  Court  of  Bombay  at   Goa
        entertained Writ Petition No. 366 of 2013 by the students, who  had
        failed to qualify in the NEET examination but were eligible to  get
        admission on the basis of their aggregate marks as  provided  under
        the Rules, and passed the following interim order: -
           “Mr. Nadkarni submits that the  applications  for  admission  to
           postgraduate courses in Goa Medical College  have  been  invited
           from  the  students,  who  fall  in  the  category  of  M.B.B.S.
           examination from Goa Medical College as well as those  who  have
           passed National Eligibility-cum-Entrance Test (‘NEET’ for short)
           and  counselling  and  admission  process  are  presently  being
           undertaken in terms of MCI Rules on the basis of the  result  of
           the NEET.

                 Considering the equities in  the  matter,  we  direct  the
           respondents  to  hold  counselling  in  respect  of   both   the
           categories of students and permit admission to the students, who
           have passed NEET subject to further orders that may be passed by
           this Court, depending upon the order passed by the Apex Court in
           the matter pending before it.  The selected candidates shall  be
           put on notice that the admissions are provisional in nature  and
           shall be subject to further orders that may be  passed  by  this
           Court.”


        11.      It is condign to note here that on the basis of the  ranks
        in NEET examination and the counselling the writ  petitioners  were
        admitted in the Government Medical College at Goa.

        12.      At this juncture, we are obliged to state that the problem
        to some extent has been created by the interim order passed by  the
        High Court.  With all respect at our command,  we  may  state  that
        when the matter was before this Court and interim orders were being
        passed from time to time, the High  Court  should  have  been  well
        advised not to entertain the petition and pass any  interim  order.
        Such a restraint was requisite and, more so, when  number  of  writ
        petitions had been transferred to this  Court  and  the  Court  was
        dealing with a batch of 115 matters.

        13.      The  writ  petitions  filed  before  this  Court  and  the
        transferred cases were decided on 18.7.2013  whereby  the  majority
        came to hold that the Medical Council of  India  is  not  empowered
        under the Medical Council of India Act, 1956 to conduct  the  NEET.
        After so holding the majority directed as follows: -
           “163.  The  Transferred  Cases  and  the  Writ  Petitions   are, therefore, allowed and  the  impugned  Notifications  Nos.  MCI- 31(1)/2010-MED/49068, and MCI.18(1)/2010-MED/49070,  both  dated 21st December, 2010, published by the Medical Council  of  India   along with Notification Nos. DE-22-2012 dated  31st  May,  2012, published by  the  Dental  Council  of  India  and  the  amended Regulations sought  to  be  implemented  there under  along  with  Notification Nos. DE-22-2012 dated 31st May, 2012, published  by the Dental Council of India, are hereby quashed. 
 This will not, however, invalidate actions so far as taken  under  the  amended  Regulations, including the admissions already given on the basis of the NEET conducted by  the  Medical  Council  of  India,  the  Dental Council of India and other private medical  institutions,  and the same shall be valid for all purposes.”

                                                            [Emphasis added]



        14.      After the judgment was pronounced, some kind of  infantile
        wisdom which may, in  different  terminology,  be  called  depraved
        sense of egocentric knowledge, 
the  Additional  Secretary  (Health)
        had conveyed the Government’s decision dated 25.7.2013  which is as
        under: -
           “The Dean
           Goa Medical College,
           Bambolim-Goa
           Sub:  Decision of the Government regarding
                 Admission to Post Graduate Degree/Diploma
                 Cources at GMC.
           I   am    directed    to    refer    to    your    letter    No.
           Acad/175/G.M.C./2013/441 dt.  23.7.2013  on  the  subject  cited
           above and to convey the decision of the Government to admit  the
           students for Post Graduate  Degree/Diploma  based  on  aggregate
           MBBS marks, as per existing rules as notified  in  the  Official
           Gazette Series I No. 50 and Series I No.  51,  Notification  No.
           I/B/2033-II/PHD.

           Provisional admissions given on the  basis  of  the  NEET  merit
           earlier thus stands cancelled.”

                                                       [Underlining is ours]
        15.      This wise act of the State Government can irrefragably  be
        compared with “absence of common sense in an uncommon degree”.

        16.      When the writ petitions came  before  the  High  Court  on
        25.7.2013, it passed the following order: -
           “Mr. Nadkarni, learned Advocate General appearing on  behalf  of
           respondents No. 1 to 5 states that in view of  the  decision  of
           the Supreme Court dated 18/07/2013 in T.C. (C) No.  98  of  2012
           and allied matters, the State Government has decided  to  follow
           its decision dated 15/06/2013 and grant admissions in  terms  of
           the State Regulations.

                 In view of the statement  made  by  the  learned  Advocate
           General, Mr. Lotlikar, learned Senior  Counsel  seeks  leave  to
           withdraw the petition, which  is  objected  to  by  the  learned
           counsel appearing on behalf of the private respondents.   Before
           granting leave to withdraw the petition, we deem it  appropriate
           to hear the respondents.

                 We also direct the State Government to place on record the
           decision taken by it to go by the said regulations by filing  an
           Affidavit of a responsible officer.  The Affidavit to  be  filed
           by  29/07/2013  with  advance  copies  to  the  learned  counsel
           appearing for the petitioners as well as the respondents.”


        17.      After the aforesaid event, chaos ruled.   The  candidates,
        who had qualified in the NEET examination and  had  been  admitted, were compelled to leave  the  college  and  the  students  who  had  qualified under  the  Rules  were  admitted.  
The  dissatisfaction
        impelled the grieved students to approach this Court under  Article
        32 of the Constitution and the Court on 30.7.2013 stayed the  order
        of the  State  Government  and  thereafter  on  7.8.2013  passed  a
        mandatory order  to  the  effect  that  the  petitioners  shall  be
        permitted to continue their studies.

        18.      The thrust of the matter is
whether the  petitioners  have
        any right to continue or the respondents  who  have  been  admitted under the Rules have the right of admission.

        19.      Mr. R.F. Nariman, learned senior counsel appearing for the
        petitioners, would urge with immense vehemence that  the  State  of
        Goa had consciously accepted the NEET examination for  the  purpose
        of admission to post graduate courses  and,  hence,  it  cannot  be
        permitted to take a somersault.  That apart,  submits  the  learned
        senior counsel, in view of the protection granted by this Court  in
        its final judgment, which protects their admissions,  their  rights
        could not have been demolished in such an irrational manner.

        20.      Mr. Singh, learned senior counsel appearing for the  State
        of Goa, would submit that NEET having been  declared  ultra  vires,
        the acceptance or non-acceptance by the  State  Government  has  to
        pale into insignificance.  He would further submit that  the  State
        Government, keeping the High Court order in  view  wherein  it  was
        mentioned that admission should  be  provisional,  had  issued  the
        order of cancellation of the admissions  given  to  the  successful
        NEET candidates.

        21.      We have already reproduced paragraph 163 of  the  judgment
        pronounced by this Court  in  Christian  Medical  College,  Vellore
        (supra) on 18.7.2013.
The majority has unequivocally  stated  that
        the quashment of the notifications shall not invalidate the  action
        already  taken  under  the  amended   regulations   including   the
        admissions already given on the basis  of  NEET  conducted  by  the
        Medical Council of India and the Dental Council of India.
There is
        no cavil over the fact that the petitioners had qualified and taken
        admissions.
The High Court by its order dated  20.6.2013  directed
        to hold counselling in respect of both the categories  of  students
        and permit admissions to the students who have passed NEET  subject
        to further orders that may be passed by it depending upon the order
        passed by the Apex Court in the matter pending before it.  
As  per
        the direction of the High Court the selected candidates are  to  be
        put on notice that the admissions are  provisional  in  nature  and
        shall be subject to further orders that may be passed by  the  High
        Court.
The  High  Court  should  not  have  entertained  the  writ
        petition on three  counts,  namely,  (i)  all  the  writ  petitions
        challenging the notification from all  the  High  Courts  had  been
        transferred to this Court;
(ii) that the  Court  had  been  passing
        interim orders from time to time; and
(iii) that any  order  passed
        by it had the potentiality to usher in some kind of anomaly.  
What
        the High Court would  have  done  while  finally  adjudicating  the
        matter is another issue but on the basis of the decision  taken  by
        the State Government on 25.7.2013, possibly  the  learned  Advocate
        General made a statement before the Court on 25.7.2013.

        22.      Mr. Singh, learned senior counsel, would submit  that  all
        admissions being provisional, as stated  by  the  High  Court,  the
        State Government after interpreting the orders thought it  apposite
        that the admissions given on the base of ranks in  NEET  should  be
        cancelled and the  admissions  given  under  the  Rules  should  be
        sustained.  We have already stated how the Government has taken the
        decision.  Though we have stated that the  High  Court  should  not
        have entertained and passed any order, yet we are obliged to  state
        that the order of the High Court is also quite clear to the  effect
        that interim order was subject to further orders that may be passed
        by it depending upon the order passed by  this  Court.   Thus,  the
        order passed by the High Court was a guarded one.  
This  Court  in
        the final judgment had not invalidated the actions taken under  the amended regulations and it included the admissions already given on  the basis of the NEET conducted by the Medical  Council  of  India.
        Therefore, there could not have been any scintilla of doubt in  any one’s  mind  that  the  admissions  given  on  the  basis  of  NEET  examination had been protected  by  this  Court  and  hence,  their  admissions could not have been cancelled by the State Government.

        23.      It is really perplexing that the State Government in spite
        of the order of this Court took a decision on 25.7.2013  to  cancel the provisional admissions given to the students on  the  basis  of  NEET merit examination.  The act indubitably shows  total  lack  of  prudence.  The  authorities  in  the  Government  are  required  to understand that the basic governance consists in the act of  taking  considered, well vigilant, appropriate and legal decisions.  It  is  the sacrosanct duty of the Government to follow  the  law  and  the  pronouncements of the court  and  not  to  take  recourse  to  such  subterfuges.   
The  Government  should  have  reminded  itself  the
saying of Benjamin Disraeli:
           “I repeat – that all power is a trust – that we are  accountable for its exercise – that, from the people and for the people, all springs, and all must exist.”


        24.      It may not be out of place to state here that every public
        authority has a duty coupled with  power.   Before  exercising  the
        power one is required to understand the object of  such  power  and
        the conditions in which the same is to  be  exercised.   Similarly,
        when one performs public duty he has to remain alive to  the  legal
        position and not be oblivious of it.  In this context, we may refer
        to the authority in Superintending Engineer,  Public  Health,  U.T.
        Chandigarh and others v. Kuldeep Singh and  others[5]  wherein  the
        Court has reproduced the observations of Farl Cairns  L.C.  in  the
        House of Lords in Julius v. Lord  Bishop  of  Oxford[6]  which  was
        quoted with approval by  this  Court  in  Commissioner  of  Police,
        Bombay v. Gordhandas  Bhanji[7].   The  succinctly  stated  passage
        reads thus: -
                 “There may  be  something  in  the  nature  of  the  thing
           empowered to be done, something in the object for which it is to
           be done, something in the conditions under which  it  is  to  be
           done, something in the title of the person or persons for  whose
           benefit the power is to be exercised, which may couple the power
           with a duty, and make it the duty of  the  person  in  whom  the
           power is reposed, to exercise that power when called upon to  do
           so.”


           But, unfortunately, here the authorities of the State Government have felt courageous enough to play possum and  proceeded  to  crucify  the fate of the candidates who had been protected by  the  verdict  of   this  Court.   Such  an  action  is  absolutely  impermissible.   Thus analysed the letter dated 25.7.2013 deserves to be lancinated  and  we  so do.  The writ petitioners, who have been admitted on the  basis  of the NEET examination, shall be allowed to prosecute their studies.

        25.      The agony and woe do not end here.   The  anguish  of  the students who were admitted on  the  basis  of  the  Rules,  in  our considered opinion, deserves to be addressed.  
True  it  is,  they
        instead of approaching this Court knocked at the doors of the  High
        Court, may be in anxiety, as the  counselling  for  the  candidates
        qualified in the NEET examination had commenced.
By virtue of  the
        order of the High Court they got provisional admissions.  They have
        prosecuted their studies for some time.  
Had  the  NEET  not  been
        introduced, they would have been admitted under  the  Rules.  
But,
        presently the situation is totally different.  With  the  intention
        to solve the problem we had directed issue of notice to the Medical
        Council of India.
Mr. Amit Kumar, learned  counsel  appearing  for
        the Medical Council of India, has  invited  our  attention  to  the
        pronouncements of this Court in K.S. Bhoir v. State of  Maharashtra
        and others[8], Faiza Choudhary v. State of Jammu  and  Kashmir  and
        another[9], Satyabrata Sahoo and others  v.  State  of  Orissa  and
        others[10] and Medical Council of India v. State of  Karnataka  and
        others[11].  Learned counsel has drawn  colossal  inspiration  from
        the pronouncements in Satyabrata Sahoo and Faiza Choudhary (supra).



        26.      In Satyabrata Sahoo, a two-Judge Bench has stated thus: -
           “This Court in State of Punjab v. Renuka  Singla[12]  held  that
           the High Court or  the  Supreme  Court  cannot  be  generous  or
           liberal in issuing such directions which in substance amount  to
           directing  the  authorities  concerned  to  violate  their   own
           statutory rules and regulations, in  respect  of  admissions  of
           students.  Technical  education,  including  medical  education,
           requires infrastructure to cope with the requirement  of  giving
           proper education to the students, who are admitted. Taking  into
           consideration the infrastructure, equipment and staff, the limit
           of the number of admissions is fixed by the Medical  Council  of
           India.


            Thereafter, the learned Judges proceeded to state thus:-
           “….in Medical Council of India v. State of Karnataka this  Court
           held that the number of students admitted  cannot  be  over  and
           above that fixed by the Medical Council as per  the  Regulations
           and  that  seats  in  medical  colleges  cannot   be   increased
           indiscriminately without regard to proper infrastructure as  per
           the Regulations of the Medical Council.”


        27.      In Faiza Choudhary (supra) a  two-Judge  Bench  has  ruled
        thus: -
           “In Medical Council of India v. State of  Karnataka  this  Court
           held that the number of students admitted  cannot  be  over  and
           above that fixed by the Medical Council as per  the  Regulations
           and that seats in  the  medical  colleges  cannot  be  increased
           indiscriminately without regard to proper infrastructure as  per
           the Regulations of the Medical Council. In  Medical  Council  of
           India v. Madhu Singh[13], this Court held that there  cannot  be
           telescoping of unfilled seats of one year with  permitted  seats
           of the subsequent year. Recently, this Court in Satyabrata Sahoo
           v. State of Orissa has reiterated that it would not be  possible
           to increase seats at  the  expense  of  candidates  waiting  for
           admission in the succeeding years.”


        28.      From the aforesaid decisions two  principles  emerge:  (i)
        that there cannot be direction for increase of seats and (ii) there
        cannot be telescoping of unfilled seats of one year with  permitted
        seats of the subsequent years.

        29.      At this juncture, we may refer with profit to Priya  Gupta
        v. State of Chhattisgarh and  others[14],
wherein  the  Court  had
        issued directions under Article 142 of the Constitution  permitting
        the appellants therein to complete the course.

        30.      The factual matrix of  the  present  case,  being  totally
        exceptional, compels us to exercise our jurisdiction under  Article
        142 of the Constitution to issue a direction so that it can act  as
        a palliative at least for some of the students who had  been  given
        admissions under the Rules.
We have been apprised  by  Mr.  Singh,
        learned senior counsel for the State and Ms. Indu Malhotra, learned
        senior counsel for the private respondents, that 21  seats  of  All
        India quota in postgraduate medical course and 7  seats  in  dental
        course have been transferred to the State quota.
Mr.  Amit  Kumar,
        learned counsel  for  the  Medical  Council  of  India,  while  not
        disputing the numbers, would submit that they are to be  filled  up
        on different parameters.
We are absolutely conscious of  the  said
        position.  
However, regard being had to the special features of the
        case and the litigations that have cropped up and the mistake  that
        the State Government has committed, 
we are inclined to direct  that
        21 seats transferred to the State quota shall  be  filled  up  from
        among the students who had taken admissions under the  2004  Rules.
        
It needs no special emphasis to state that the admissions  and  the
        allocations of the stream shall be on their inter se merit  as  per
        the Rules.  
We may hasten to clarify that none of these  candidates
        shall be allowed to encroach upon the  streams  that  have  already
        been allotted to the petitioners  who  were  admitted  having  been
        qualified in the NEET examination.  
We have been  further  apprised
        at the Bar that there are some unfilled seats as some students have
        left the College.  
If the vacancies have  occurred,  the  same  can
        also be filled up regard being had to the merit as stipulated under
        the Rules.

        31.      We will be failing in our duty if we do not take  note  of
        two submissions put forth by the learned counsel for the  State  as
        well as by Ms.  Indu  Malhotra,  learned  senior  counsel  for  the
        private respondents.
The first one is to  the  effect  that  
there
should be increase of the seats for the academic year  2013-14  and the students should be adjusted. 
 Be it noted, an  application  was
        filed by the College for  enhancement  of  seats  for  2014-15  and
        during the pendency of this petition there has been  a  request  to
        the Medical Council of India to prepone it for  the  year  2013-14.
        Enhancement of seats requires inspection and is controlled by a set
        of Regulations and, in any case, the application for 2014-15 cannot
        be directed to be processed in the current year.

        32.      The next submission  relates  to  the  issue
whether  the
 students who cannot be adjusted in the seats  of  All  India  quota that have been transferred to the State quota of this year  can  be adjusted next year.  
During the course of hearing though there  was
        some debate with regard to giving of admissions to such students in
        the academic year 2014-15,  Mr. Amit Kumar, learned counsel for the
        Medical Council of India,  has  seriously  opposed  the  same  and,
        thereafter, has cited the authorities which  we  have  referred  to
        hereinbefore.
We are bound by the  said  precedents.   
In  certain
        individual cases where there is defective counselling and merit has
        become a casualty, this Court has directed for  adjustment  in  the
        next academic session but in the case at hand, it  is  not  exactly
        so.  
Though we are at pains, yet we must express that it  will  not
        be appropriate to issue directions to adjust them in respect of the
        subsequent academic year, for taking recourse  to  the  same  would
        affect the other meritorious candidates who would  be  aspirant  to
        get admissions next year.  
For doing equity to some in presenti  we
        cannot afford to do injustice to others in future.  Therefore,  the
        submission stands repelled.

        33.      The writ petition is accordingly disposed of with no order
        as to costs.


                                                             ………………..……………J.
                                                              [Anil R. Dave]




                                                             ………………..……………J.
                                                               [Dipak Misra]


      New Delhi;
      August 30, 2013.


-----------------------
[1]

      [2] 1995 Supp (3) SCC 77


[3]

      [4] (2002) 7 SCC 258


[5]

      [6] (2012) 7 SCC 389


[7]

      [8] 2013 (9) SCALE 226


[9]

      [10] (1997) 9 SCC 199


[11]

      [12] (1880) 5 A.C. 214


[13]

      [14] AIR 1952 SC 16


[15]

      [16] (2001) 10 SCC 264


[17]

      [18] (2012) 10 SCC 149


[19]

      [20] (2012) 8 SCC 203


[21]

      [22] (1998) 6 SCC 131


[23]

      [24] (1994) 1 SCC 175


[25]

      [26] (2002) 7 SCC 258


[27]

      [28] (2012) 7 SCC 433




Order XV Rule 5 of the Code of Civil Procedure (‘CPC’ for short). strike off defence as he failed to comply the orders and filed written statement belatedly -Apex court - yes = Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act, 1972 and 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 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 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 provisions of sub-rule (2) strike off his defence. 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 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 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: 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.”= suit for eviction of the respondent-defendant-tenant from the suit premises,= Inspite of receipt of notice, the respondent did not 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 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).= In the present case, the Trial Court fully applied its mind while exercising its discretionary power to strike off the defence. 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 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. Inspite of the aforesaid fact, we find that the High Court 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 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 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 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 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.

                    published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40706                                   
     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7279 OF 2013
                  (ARISING OUT OF SLP(C) NO.22265 OF 2007)


BAL GOPAL MAHESHWARI & ORS.        … APPELLANTS


                             VERUS

SANJEEV KUMAR GUPTA                               … RESPONDENT


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      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  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.  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  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.    Inspite of receipt of notice, the respondent did not  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 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).
4.    The learned Civil 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  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.
6.    The respondent thereafter filed a petition under Article  227  of  the
Constitution of India before the  High  Court  of  Judicature  at  Allahabad
registered as Civil Miscellaneous Writ  Petition  No.  44387  of  2007.  The
learned Single Judge passed the following order:
            “ Heard learned counsel for the parties.
            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.17 of 1998.  Against the said order, petitioner filed  SCC
      Revision No.1 of 2006 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 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 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  impugned
      orders dated 31.5.2007 and 9.1.2006 are  set  aside.   The  petitioner
      shall pay Rs.10,000/- 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.
            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  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 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.
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 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.
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  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:
            “11.  In the present case there are several  defaults  committed
      by the revisionist in depositing the monthly rent as under.
            The rent of April 1999 must be deposited upto 7th May  1999,  it
      has  been  deposited  by  delay  of  20  days   on   27/05/1999.    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
      07/08/99, on the contrary rent of both the months i.e. June & July  99
      has been deposited after a considerable delay  on  23/08/99,  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  of  September,  October-99  has   been   deposited   after
      considerable delay on 08/12/1999 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 the rent of Jan, 2000 was deposited on  07/03/2000,  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 27/07/2000 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 06/11/2000  in  which  the  rent  of
      October, 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 22/03/2001 in
      which the rent up to April 2001 has been deposited the  rent  of  May,
      June, July, August, September, October  and  November  2001,  total  7
      months of rent  was  deposit  on  5/12/2001  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  February  was
      deposited on 11/03/2002 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 11/12/2005 by tender
      122/C after moving the application for 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
      18/02/03, rent of September, October, November and December  2003  and
      Jan 2004 was deposited on  04/03/2004  in  this  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  25/08/2004  in
      this     deposit     as     well      no      delay      has      been
      explained.........................  The tenant in this case only  made
      representation that he had 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 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 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 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 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 provisions of sub-rule (2)  strike  off  his
      defence.
        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 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  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:
        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.”


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 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 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-
      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-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 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 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 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  consideration
before this Court in  Smt. Satya Kumari Kamthan v.  Noor  Ahmed  and  others
1992 (2) Allahabad Rent  Cases  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. The Courts below did not accept the said 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
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 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.
14.   In  Mangat Singh Trilochan Singh  v. Satpal  (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 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 (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.  
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
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.   Inspite of the aforesaid fact, we find that the High Court  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 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 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 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 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.






                                                      ………………………………………………….J.
                           (SUDHANSU JYOTI MUKHOPADHAYA)








                                                      ………………………………………………….J.
                                   (KURIAN JOSEPH)


NEW DELHI,
AUGUST 30, 2013



















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