LAW FOR ALL

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 (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount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.