Mohd. Usman vs Smt. Shagupta Begum
2023 Latest Caselaw 9241 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                   A.F.R.
 
                                                 Reserved On 17.03.2023
 
Delivered On 29.03.2023   
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2393 of 2023
 
Petitioner :- Mohd. Usman
 
Respondent :- Smt. Shagupta Begum
 
Counsel for Petitioner :- Ashish Kumar Singh,Ajay Kumar Singh
 
Counsel for Respondent :- Prashant Rai,Krishna Nand Rai
 

 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Ashish Kumar Singh, learned counsel for the petitioner and Sri Krishna Nand Rai alongwith Sri Prashant Rai, learned counsel for opposite party.

Present petition has been filed challenging the order dated 14.11.2022, passed by Judge, Small Causes Court, Saharanpur in SCC Suit No. 25 of 2014, by which defence of petitioner-defendant was struck off under provision of Order XV, Rule 5, C.P.C. and order dated 31.01.2023 passed by District Judge, Saharanpur dismissing the SCC Revision No. 132 of 2022, which was filed by the petitioner-defendant challenging the order dated 14.11.2022.

Since, only legal question is involved in this petition, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.

Learned counsel for the petitioner-defendant submitted that plaintiff-respondent had filed SCC Suit No. 25 of 2014 before the Judge, Small Causes Court, Saharanpur for arrears of rent and ejectment on the ground of default in payment of rent. On service of summons, petitioner-defendant has filed application Paper No. 12-Ga dated 14.10.2014 to deposit the rent as provided under Order XV, Rule 5, C.P.C. The aforesaid application was allowed vide order dated 27.10.2014 and petitioner-defendant had deposited rent alongwith interest on 14.10.2014 for the period from 01.08.2011 to 05.08.2014 and also filed written statement.

He next submitted that suit is being contested, but due to illness of petitioner, he could not deposit monthly rent, as provided under Order XV, Rule 5, C.P.C., therefore, he has filed application Paper No. 41-Ga dated 31.05.2017 for permission to deposit the entire amount for the period from 30.09.2015 to 30.10.2017 and also presented tender for the same. Against the said application, objection paper No. 44-Ga dated 27.02.2018 has been filed by plaintiff-respondent and ultimately, application Paper No. 41-Ga has been rejected by Judge, Small Causes Court vide order dated 29.08.2018.

He further submitted that petitioner-defendant subjected to challenge the order dated 29.08.2018 before the District Judge, Sharanpur vide SCC Revision No. 31 of 2018, which was rejected vide order dated 07.01.2019 with the finding that Trial Court has rightly rejected the application Paper No. 41-Ga and also rightly struck off the defence of the petitioner-defendant. Petitioner-defendant has challenged both the orders dated 29.08.2018 and 07.01.2019 before this Court by filing Civil Misc. Writ Petition No. 805 of 2019, which was disposed of vide order dated 07.02.2019. This Court, while disposing of the said writ petition, has clarified that order impugned dated 29.08.2018 would not amount to order of striking off of the defence with liberty to petitioner-defendant to challenge the order, in case defence is struck off.

He next submitted that vide order dated 24.11.2021, Judge, Small Causes Court has suo moto struck off the defence of petitioner-defendant, upon which, he has filed application Paper No. 62-C-2 for recalling the order dated 24.11.2021. The said application was allowed vide order dated 12.07.2022. On 10.12.2021, plaintiff-respondent has also filed application Paper No. 65-C under Order XV, Rule 5, C.P.C. to strike off the defence of the petitioner-defendant, upon which, petitioner-defendant has filed objection Paper No. 67-C dated 18.05.2022 with specific plea that all amount due, as provided under Order XV, Rule 5, C.P.C. has been deposited by him and tenders have also been annexed, therefore, the application to strike off the defence is not maintainable.

He next submitted that by the impugned order dated 24.11.2021, Judge, Small Causes Court, after going through the application of plaintiff-respondent and reply of petitioner-defendant, has struck off the defence of the petitioner-defendant only on the ground of earlier order passed on 29.08.2018.

Learned counsel for the petitioner has assailed the order dated 24.11.2021 only on the ground that once the High Court vide order dated 07.02.2019 has granted liberty to petitioner-defendant to challenge the striking off of the defence at later stage, it is required on the part of the Judge, Small Causes Court to decide the issue afresh and not in light of earlier order dated 29.08.2018, which was subject matter of Civil Misc. Writ Petition No. 805 of 2019.

He firmly submitted that the finding of the Trial Court is perverse and also ignoring the order of the High Court dated 07.02.2019, which has given liberty to petitioner to challenge the order of striking off of the defence. In fact, once the Court has given liberty to petitioner-defendant to challenge the striking off of the defence as and when the defence is struck off, principle of merger shall be applicable and, while entertaining the application Paper No. 65-C and objection Paper No. 67-C, it is required on the part of Judge, Small Causes Court to decide the applications 41-Ga and 44-Ga also afresh, considering the circumstances prevailing on the date of filing of applications, ignoring the earlier order dated 29.08.2018, as the same has lost the effect in light of order of High Court dated 07.02.2019.

It is also petitioner's case that Order XV, Rule 5, C.P.C. provides for filing of representation and even in case of absence of representation, it is required on the part of the Small Causes Court to consider all materials available on record while passing the order for striking off the defence.

He next submitted that this fact is undisputed that on the date of filing of application Paper No. 65-C, all amount as required under Order XV, Rule 5, C.P.C. had already been deposited and available with the Court. Therefore, while passing the impugned order 14.11.2022, the same cannot be ignored.

In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court in matter of Bimal Chand Jain Vs. Sri Gopal Agarwal: (1981) 3 Supreme Court Cases 486, decided on 27.07.1981, judgment of Apex Court in the matter of Asha Rani Gupta Vs. Vineet Kumar: 2022 SCC Online SC 829 and judgment of High Court of Uttarakhand at Nainital in the matter of Gulshan Pahwa and Others Vs. Dargah Peer Dariyanath Ji Shrawannath Nagar, Haridwar and Another: (2022) 157 RD 573.

Sri Krishna Nand Rai, learned counsel for the opposite party has raised preliminary objection to the submission of learned counsel for the petitioner and submitted that High Court while passing the order dated 07.02.2019, has affirmed the order dated 29.08.2018 passed by Judge, Small Causes Court, by which application of petitioner 41-Ga has been rejected to deposit the arrears of rent as required under Order XV, Rule 5, C.P.C. Thereafter, District Judge has rightly rejected SCC Revision No. 31 of 2018 filed by petitioner-defendant vide order dated 07.01.2019, relying upon the earlier order dated 29.08.2018. But, he could not dispute the fact that while disposing of the writ petition No. 805 of 2019, this Court vide order dated 07.02.2019 has given liberty to petitioner to challenge, if any specific order is passed for striking off the defence of the petitioner.

I have considered the rival submissions made by the counsel for the parties, perused the records and also judgments relied upon.

Facts of the case are undisputed. The only issue before the Court is about interpretation of order dated 07.02.2019 passed by the High Court in Civil Misc. Writ Petition No. 805 of 2019. Once this Court has given liberty to petitioner-defendant to challenge the order of striking off of the defence, what would be the effect of the order of High Court and fate of earlier order dated 29.08.2018 pass by Judge, Small Causes Court.

Order dated 07.02.2019 passed by the High Court in Writ Petition No. 805 of 2019 is not very lengthy and the same is being reproduced hereinbelow:

"By impugned order dated 29.8.2018, the trial Court in SCC Suit No. 25/2014 had rejected the application 41Ga filed by the petitioner seeking permission to deposit rent from 30.9.2015 to 30.6.2017. The order has been affirmed in revision.

Counsel for the petitioner submitted that certain observations have been made by the Revisional Court that defence of the petitioner has been struck off by the trial Court, while there is no such order in existence.

It is true that in the penultimate paragraph of the order of the Revisional Court, an observation has been made that the trial Court has rightly rejected the application 41Ga and has also rightly struck off the defence of the petitioner. A perusal of the order of the trial Court reveals that it had simply rejected the application 41Ga without their being any specific order for striking off the defence.

It is noteworthy that the Revisional Court has simply dismissed the revision and has upheld the order of the trial Court, without itself recording any independent finding for striking off the defence.

In such view of the matter, this Court is of the opinion that as and when any specific order is passed by the trial Court striking off the defence, it shall be open to the petitioner to challenge the same, but at the present moment, it cannot be said that its defence stands struck off, as sought to be urged. Consequently, this Court is not inclined to interfere with the impugned orders.

The petition is disposed of, subject to the above clarification."

From the perusal of order of High Court dated 07.02.2019, it is apparently clear that the Court has not entered into merits of the impugned order 29.08.2018, but disposed of the petition with liberty to petitioner-defendant to challenge any specific order, if any, passed for striking off of the defence, meaning thereby, petitioner was given liberty to raise all issues while challenging the order of striking off of the defence, which is the subject matter of earlier order dated 29.08.2018, otherwise, order of High Court dated 07.02.2019 would be of no effect. While declining to interfere with the impugned order dated 29.08.2018, High Court has not given a word in favour of order dated 29.08.2018 except liberty to petitioner to challenge the striking off of the defence. Therefore, it is required on the part of the Judge, Small Causes Court to decide the application Paper No. 65-C on merits and not relying upon the earlier order dated 29.08.2018.

The Apex Court while dealing with the matter of Bimal Chand Jain(Supra), has taken a firm view that under sub-rule (2) of Rule 5 of Order XV C.P.C., striking off of the defence is in the nature of penalty leading to serious consequences, therefore, a serious liability rests upon the Court in the matter and power is not to be exercised mechanically while passing the order under sub-rule (2) of Rule 5 of Order XV C.P.C. The Court went to the extent that even in case, representation has not been filed under sub-rule (2) of Rule 5 of Order XV C.P.C, it is required on the part of Court to consider the facts and circumstances already existing on record. Relevant paragraphs of the said judgment is quoted hereinbelow:

"5. It appears on the facts in this case that no representation under sub-rule (2) was made by the appellant. The only question raised before us is whether, in the absence of such representation, the court was obliged to strike off the defence of the appellant.

6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 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 vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order 15."

Again, Apex Court in the matter of Asha Rani Gupta(Supra) has taken the same view. Relevant paragraphs of the said judgment are quoted hereinbelow:

"37. Though the aforesaid decisions in cases of Miss Santosh Mehta, Smt. Kamla Devi and Manik Lal Majumdar related to the respective rent control legislations applicable to the respective jurisdictions, which may not be of direct application to the present case but and yet, the relevant propositions to be culled out for the present purpose are that any such provision depriving the tenant of defence because of default in payment of the due amount of rent/arrears have been construed liberally; and the expression ''may' in regard to the power of the Court to strike out defence has been construed as directory and not mandatory. In other words, the Courts have leaned in favour of not assigning a mandatory character to such provisions of drastic consequence and have held that a discretion is indeed reserved with the Court concerned whether to penalise the tenant or not. However, and even while reserving such discretion, this Court has recognised the use of such discretion against the defendant-tenant in case of wilful failure or deliberate default or volitional non-performance. This Court has also explained the principles in different expressions by observing that if the mood of defiance or gross neglect is discerned, the tenant may forfeit his right to be heard in defence. The sum and substance of the matter is that the power to strike off defence is considered to be discretionary, which is to be exercised with circumspection but, relaxation is reserved for a bonafide tenant like those in the cases of Miss Santosh Mehta and Smt. Kamla Devi (supra) and not as a matter of course. The case of Bimal Chand Jain (supra) directly related with Order XV Rule 5 CPC where the tenant had deposited the arrears admitted to be due but, failed to make regular deposits of monthly rent and failed to submit representation in terms of sub-rule (2) of Rule 5 of Order XV. The defence was struck off in that matter with the Trial Court and the High Court taking the said provisions of Order XV Rule 5 CPC as being mandatory in character. Such an approach was not approved by this Court while indicating the reserve of discretion in not striking off defence if, on the facts and circumstances existing on record, there be good reason for not doing so. The common thread running through the aforesaid decisions of this Court is that the power to strike off the defence is held to be a matter of discretion where, despite default, defence may not be struck off, for some good and adequate reason.

38. The question of good and adequate reason for not striking off the defence despite default would directly relate with such facts, factors and circumstances where full and punctual compliance had not been made for any bonafide cause, as contradistinguished from an approach of defiance or volitional/elective non-performance."

High Court of Uttarakhand at Nainital has also followed the same ratio of law in the matter of Gulshan Pahwa and Others(Supra). Relevant paragraphs of the said judgment are quoted hereinbelow:

"6. Thus, it can be seen that power to strike off defence is not to be exercised by treating it to be a statutory mandate. Since exercise of such power inflicts severe penal consequences, the court has discretion not to strike off, if on facts it finds good reason for not doing so, therefore, the power should be exercised after considering the facts and circumstances appearing on the record and in the event of their being a representation, after considering the representation.

9. In the humble opinion of this Court, revisional court's interference with the order passed by learned trial court was not warranted in the facts of the case, as it is not obligatory for the court in every case to strike off defence because of some delay in deposit of admitted rent. Since learned trial court has discretion in the matter, which was exercised well within jurisdiction, therefore, learned revisional court fell into error in interfering with the order passed by learned trial court."

In the present case, impugned order has been passed upon the application Paper No. 65-C filed by plaintiff-respondent and objection Paper No. 67-C dated 18.05.2022, filed by the petitioner-defendant. In the objection, petitioner has made a clear cut averment that all amount due has already been deposited. While passing the impugned order, Judge, Small Causes Court has not returned any finding upon that, but allowed the application 65-C and struck off the defence of the petitioner-defendant only on the ground that earlier application Paper No. 41-Ga has been rejected vide order dated 29.08.2018 and also affirmed by High Court.

In fact, Judge, Small Causes Court has wrongly interpreted the order of High Court dated 07.02.2019. Once the Court has granted liberty to petitioner-defendant to challenge the order of striking off of the defence, the implied meaning would be that, while considering the application to strike off the defence, it is mandatory on the part of the court below to decide the issue afresh, including the application Paper No. 41-Ga on merits again, but due to incorrect interpretation, application Paper No. 65-C was allowed only on the ground of earlier order dated 29.08.2018, taking away the mandate of order of the High Court dated 07.02.2019.

The order of High Court dated 07.02.2019 has annulled the effect of order dated 29.08.2018 passed by Judge, Small Causes Court, Saharanpur, with liberty to petitioner to raise this issue again after, in case, any order has been passed for striking off of the defence. The spirit of the order of High Court is that, in case of passing of fresh order for striking off of the defence, petitioner would have full liberty to challenge the same and court below is required to decide the same on merits, without being impressed with the its earlier order dated 29.08.2018.

Even otherwise, while passing the order considering all the evidence under Order XV Rule 5, C.P.C. Court must have been very conscious, as passing of such order would take away the liberty of petitioner-defendant to lead the evidence and all other consequences, certainly resulting into allowing of suit without any protest.

Therefore, under such facts and circumstances of the case, the petition is allowed. The impugned order dated 14.11.2022, passed by Judge, Small Causes Court, Saharanpur in SCC Suit No. 25 of 2014, and order dated 31.01.2023 passed by District Judge, Saharanpur in SCC Revision No. 132 of 2022 are hereby quashed.

Matter is remanded back to Judge Small Causes Court, Saharanpur to decide afresh the application Paper No. 41-Ga, objection paper No. 44-Ga, application Paper No. 65-C and objection Paper No. 67-C maximum within two months from the production of certified copy of this order in light of observation made herein above.

It is made clear that petitioner-defendant is not granted liberty to file any fresh paper except judgments of courts.

Order Date :- 29.03.2023

ADY