BIMAL CHAND JAIN versus SRI GOPAL AGARWAL

Citation: [1982] 1 S.C.R. 124 · Decided: 27-07-1981 · Supreme Court of India · Bench: R.S. PATHAK, O. CHINNAPPA REDDY, BAHARUL ISLAM · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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BIMAL CHAND JAIN 
v. 
SRI GOPAL AGARWAL 
July 27, 1981 
[R.S. PATHAK, 0.CHINNAPPA REDDY AND 
BA '.IARUL !SLAM, JJ. l 
Civil Procedure Code Rule 5 Order XV-D~fau/t in payment of arrears of rent 
during the pendency of suit-Court if competent to strike off defence. 
Rule 5 of Order XV C.P.C. was re-enacted by the U.P. Act 1976 and it pro-
vided that the defendant shall deposit the entire amount of rent due from him 
together with interest at or before the first bearing of the suit for eviction and 
also continue to deposit the monthly amount regularly and that on failure to do 
so, his defence was liable to be struck off. 
Another rule provided that before 
striking off the defence, the Court may consider any representation made in that 
behalf. 
The respondent filed a suit against the appellant for ejectment and recovery 
of arrears of rent. The appellant filed written statement and resisted the suit. 
The appellant during the pendency of the suit committed default in depositing 
the rent regularly and the respondent filed application under Rule 5 Order XV 
C.P.C. for striking off the appellant's defence. The appellant attempted to show 
that he had been depositing th1:; rent as required by law. The trial court accepted 
the application and held that the appellant had failed to make any representation 
permitted by him under sub-rule (2) of Rule 5 of Order XV within time. The trial 
court accordingly struck off the defence and the High Court affirmed the order of 
the trial court on the ground that where no representation was made or if made 
was filed beyod time, the Court was bound to strike off the defence and enjoyed 
no discretion in the matter. 
Allowing the Special Leave Petition, 
HELD : An order under sub-rule (1) striking off the defence is in the nature 
of a penalty. A serious responsibi1ity 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 circum-
stances already existing on the record, it finds good reason for not doing so. It 
will always be a matter for the judgn1ent 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. L128 C-D] 
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BIMAL CHAND v. SRI GOPAL (Pathak, J.) 
125 
Puran Cha.ndv. Prav;n Gupta, Civi1 Revision No. 356of1978 decided on 
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October 30, 1980 All. H.C. overruled. 
CIVIL APPELLATE 
JURISDICTION : Civil Appeal 
No. 
1759 
of 1981 
Appeal by special leave from the judgment and order dated 
3rd December, 1980 of the Allahabad High Court in Civil Revision 
No. 525 of 1980 
F.S. Nariman and K.K. Mohan, for the Appellant. 
R. K. Garg, Pramod Swarup and Sunil Kumar Jain, for the 
Respondent. 
The Judgment of the Court was delivered by 
PATHAK, J. In a suit for ejectment of a lessee and for recovery 
of arrears of rent, does the court enjoy any discretion not to strike 
off the defence in case the defendant has defaulted in depositing the 
rent and has also failed to make any representation within the terms 
of Rule 5 of Order XV, Code of Civil Procedure? That question is 
raised in this defendant's appeal by special leave against an order 
of the Allahabad High Court maintaining in revision that the trial 
court has no discretion in the circumstances but must strike off the 
defence. 
The respondent as lessor filed a suit against the appellant as 
lessee for his ejectment and for recovery of arrears of rent. The 
appellant filed a written statement and resisted the suit. 
During 
the pendency of the suit the respondent filed an application praying 
that the appellant's defence be struck off in view of Rule 5 of Order 
XV, Code of Civil Procedure, inasmuch as the appellant had com-
mitted default in depositing the rent regularly. The appellant 
opposed the application and attempted to show that he had been 
depositing the rent as required by the law. 
The trial court held that 
while the rental arrears admitted by the appellant to be due had been 
deposited in accordance with the relevant provision of sub-rule (!) 
of Rule 5 of Order XV, he had failed to make regular deposits of 
the monthly rent accruing during the pendency of the suit as req
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