ASHA RANI GUPTA versus SRI VINEET KUMAR on 11 July 2022

[2022] 15 S.C.R. 402

SUPREME COURT REPORTS

[2022] 15 S.C.R.

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ASHA RANI GUPTA

v.

SRI VINEET KUMAR

(Civil Appeal No. 4682 of 2022)

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JULY 11, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Code of Civil Procedure, 1908: Ord. XV r.5(as applicable inthe State of U.P.) – Striking off defence for failure to deposit theadmitted rent – Eviction suit by appellant-lessor against theCrespondent-lessee on grounds of arrear of rents and damages–Failure of respondent to pay or deposit the due rent – Applicationu/Ord. XV r.5 for striking off the defence – Allowed by the trialcourt holding that there was no evidence of payment of rent to theappellant and even if the tenant-landlord relationship is denied,Dthen also application u/Ord. XV r.5 was maintainable – Approvedby the revisional court, however, set aside by the High Court holdingthat respondent was entitled to ‘some indulgence’ – On appeal,held:As per the provision, the defendant is under an obligation todeposit the entire amount admitted by him to be due along with theinterest on or before the first hearing and to regularly deposit theEmonthly amount due within a week of its accrual throughout thependency of the suit – Consequence of default in making either ofthese deposit is that the court may strike of his defence – However,court should consider the representation of the defendant if madewithin 10 days of the first hearing –Such provision has to be beenFconstrued liberally; and the expression ‘may’ in regard to the powerof the Court to strike out defence has been construed as directoryand not mandatory – Power to strike off defence is considered tobe discretionary, which is to be exercised with circumspection but,relaxation is reserved for a bonafide tenant – On facts, therespondent has not denied his status as being the lessee and it hasGclearly been the case of volitional non-performance with nothingleft to guess about the defendant’s mood of defiance – No facts orany circumstance is existing on record to find even a remote reasonfor extending any latitude or relaxation in operation of Ord. XV r. 5– Conclusion of the High Court could only be said to be anHassumptive one, being not supported by any reason – Furthermore, the deposits made belatedly, pursuant to the unsustainable order ofthe High Court, would not enure benefit to the respondent – Thus,the order of the High Court is set aside.

Allowing the appeal, the Court

HELD: 1.1 A few basic factors related with the provisionsof Order XV Rule 5 CPC are that in a suit by a lessor for evictionof a lessee after the determination of lease and for recovery ofrent or compensation for use and occupation, the defendant isunder the obligation: to deposit the entire amount admitted byhim to be due together with interest at the rate of 9% per annumon or before the first hearing of the suit; and to regularly depositthe monthly amount due within a week of its accrual throughoutthe pendency of the suit. The consequence of default in makingeither of these deposits is that the Court may strike off hisdefence. The expression ‘first hearing’ means the date for filingwritten statement or the date for hearing mentioned in thesummons; and in case of multiple dates, the last of them. Theexpression ‘monthly amount due’ means the amount due everymonth, whether asrent or damages for use and occupation at theadmitted rate of rent after making no other deduction excepttaxes, if paid to the local authority on lessor’s account. It is,however, expected that before making an order striking offdefence, the Court would consider the representation of thedefendant, if made within 10 days of the first hearing or within 10days of the expiry of one week from the date of accrual of monthlyamount. [Para 9.1][418-D-G]

1.2 The present suit has been filed by the plaintiff-appellantclaiming her capacity as the lessor after having purchased thesuit property from its erstwhile owner. According to the plaintiff,the defendant has been the lessee in the suit shop and his leasewas determined; and while alleging the rent to be due and havingnot been paid despite demand, the plaintiff has filed this suit foreviction and recovery of arrears of rent and damages for use andoccupation. Having regard to the plaint averments, the suit inquestion is clearly the one to which the provisions of Order XVRule 5 CPC are applicable. [Para 11][423-D-E]

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A1.3 Any such provision depriving the tenant of defencebecause of default in payment of the due amount of rent/arrearshave been construed liberally; and the expression ‘may’ in regardto the power of the Court to strike out defence has beenconstrued as directory and not mandatory. In other words, theCourts have leaned in favour of not assigning a mandatoryBcharacter to such provisions of drastic consequence and haveheld that a discretion is indeed reserved with the Court concernedwhether to penalise the tenant or not. However, and even whilereserving such discretion, this Court has recognised the use ofsuch discretion against the defendant-tenant in case of wilfulCfailure or deliberate default or volitional non-performance. If themood of defiance or gross neglect is discerned, the tenant mayforfeit his right to be heard in defence. The sum and substance ofthe matter is that the power to strike off defence is considered tobe discretionary, which is to be exercised with circumspectionbut, relaxation is reserved for a bonafide tenant and not as a matterDof course. The power to strike off the defence is held to be amatter of discretion where, despite default, defence may not bestruck off, for some good and adequate reason. [Para 11.1][423-F-H; 424-A-B, D]

1.4 The question of good and adequate reason for notEstriking off the defence despite default would directly relate withsuch facts, factors and circumstances where full and punctualcompliance had not been made for any bonafide cause, ascontradistinguished from an approach of defiance or volitional/elective non-performance. [Para 11.2][424-E-F]F

1.5 Reverting to the provisions under consideration, it isnoticed that while the first part of sub-rule (1) of Rule 5 of OrderXV CPC requires deposit of the admitted due amount of renttogether with interest, the second part thereof mandates thatwhether or not the tenant admits the amount to be due, he hasGto, throughout the continuation of the suit, regularly depositmonthly amount due within a week from the date of its accrual.Read as a whole, it is but clear that Order XV Rule 5 CPCembodies the fundamental principle that there is no holidayingfor a tenant in payment of rent or damages for use and occupation,whether the lease is subsisting or it has been determined. TheH

only basic requirement in the suit of the nature envisaged byOrder XV Rule 5 CPC is the character of defendant as being thelessee/tenant in the suit premises. Viewed from this angle, itcannot be said that in every case of denial of relationship oflandlord and tenant, the defendant in suit for eviction and recoveryof rent/damages could enjoy holidays as regards payment of rent.[Para 12][424-F-H; 425-A-B]

1.6 In a suit of the present nature, where the defendantotherwise has not denied his status as being the lessee, it wasrather imperative for him to have scrupulously complied with therequirements of law and to have deposited the arrears of rentdue together with interest on or before the first date of hearingand in any case, as per the second part of sub-rule (1) of Rule 5 ofOrder XV CPC, he was under the specific obligation to makeregular deposit of the monthly amount due, whether he wasadmitting any such dues or not. [Para 13][425-D]

1.7 In the context of the proposition of denial of title of theplaintiff and denial of relationship of landlord and tenant betweenthe plaintiff and defendant, such a denial simpliciter does not andcannot absolve the lessee/tenant to deposit the due amount ofrent/damages for use and occupation, unless he could show havingmade such payment in a lawful and bonafide manner. Of course,the question of bonafide is a question of fact, to be determined inevery case with reference to its facts but, it cannot be laid downas a general proposition that by merely denying the title of plaintiffor relationship of landlord- tenant/lessor-lessee, a defendant ofthe suit of the present nature could enjoy the property duringthe pendency of the suit without depositing the amount of rent/damages. [Para 14][425-F-H]

1.8 On facts, it is at once clear that the defendant-respondent, by his assertions and conduct, has left nothing todoubt that he has been steadfast in not making payment of rent/damages, despite being lessee of the suit shop. The present onehas clearly been the case of volitional non-performance withnothing left to guess about the defendant’s mood of defiance.Nothing of any fact or any circumstance is existing on record to AB

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Afind even a remote reason for extending any latitude or relaxationin operation of Order XV Rule 5 CPC to the present case. Itshall be apposite at this juncture to also observe that thecontentions on behalf of the defendant-respondent to the effectthat he had made payment of rent to the alleged erstwhile landlordand contra submissions on behalf of the appellant that even inBthe year 1990, the defendant-respondent admitted the RK as theowner of the property as also the factors co-related with thesesubmissions, do not call for adjudication in this appeal. This is fortwo simple reasons: One, that so far as the fact of volitional non-performance by the defendant-respondent is concerned, with noCcogent evidence of lawful payment of rent, the findings of fact bythe Trial Court and the Revisional Court against the defendant-respondent stand final and have not been disturbed even by theHigh Court. There appears no reason for this Court to enter intoany factual inquiry as regards payment of rent to the erstwhileowner or otherwise, now in this appeal. Secondly, so far as anyDaffidavit filed by the defendant-respondent in the year 1990,allegedly admitting RK as owner of property is concerned, it maybe a matter of adjudication by the trial court but would not be amatter of consideration in this appeal. [Para 15][426-A-E]

1.9 In the totality of facts and circumstances, there wasEabsolutely no reason for the High Court to have interfered in thepresent case, where the trial court had struck off the defenceafter finding that there was no evidence on record to show thepayment or deposit of rent in favour of the plaintiff by thedefendant- respondent. The Revisional Court had also approvedFthe order of the trial court on relevant considerations. Even theHigh Court did not find the pleas taken by the defendant-respondent to be of bonafide character, particularly when surveynumber of the shop let out to him was clearly stated in the saledeed executed in favour of the plaintiff. It is rather find intriguing that, despite having not found any cogent reason for whichGdiscretion under Rule 5 of Order XV CPC could have beenexercised in favour of the defendant-respondent, the High Court,in the last line of paragraph of the order impugned, abruptly statedits conclusion that: ‘yet the defendant/tenant deserves someindulgence’.With respect, the said conclusion of the High CourtH

could only be said to be an assumptive one, being not supportedby any reason. In previous paragraph, of course, the High Courtobserved with reference to the decisions of this Court that thediscretionary power must be exercised with great circumspectionbut, such enunciation by this Court cannot be read to mean thatwhatever may be the fault and want of bonafide in the defendant/tenant, he would be readily given the so-called ‘indulgence’ ofnot striking off defence. Such an approach is neither envisagedby the statutory provisions nor by the referred decisions. In fact,such an approach would simply render the relevant provisions oflaw rather nugatory. The expected circumspection would requirethe Court to be cautious of all the relevant facts and the materialon record and not to strike off the defence as a matter of routine.However, when a case of the present nature is before the Court,disclosing deliberate defiance and volitional/elective non-performance, the consequence of law remains inevitable, that thedefence of such a defendant would be struck off.The impugnedorder as passed by the High Court cannot be approved and isrequired to be set aside. [Para 16-18][426-G-H; 427-A-F]

1.10 The submissions made on behalf of the defendant-respondent that he had deposited the due rent from 10.05.2010to 10.11.2018 and he has been further making regular depositsdo not take his case any further. The defendant-respondent hasmade such deposits only pursuant to the order of the High Court.The said order, being not in conformity with the law applicableand with the record of this case, is required to be set aside. Inany event, any deposit made under or pursuant to the said ordercannot wipe out the default already committed by the defendant-respondent. On the contrary, with setting aside of the said orderof the High Court, the order of the trial court shall stand revived.Simply put, the deposits belatedly made, pursuant only to theunsustainable order of the High Court, do not enure to the benefitof the defendant-respondent. [Para 19][427-G-H; 428-A]

1.11 Having taken note of the subsequent events afterpassing of the impugned order by the High Court, suffice it tosay that with the impugned order of the High Court being set AB

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Aaside and that of the trial court dated 01.03.2017 being restoredby this judgment, it would be expected of the trial court to takenote of the fact that the suit filed way back in the year 2011 hasremained pending yet and is required to be assigned a reasonablepriority for expeditious disposal. The order passed by the HighCourt on 29.09.2020 is also to be kept in view by the trialBcourt.The impugned order dated 02.11.2018 is set aside with theresult that the order dated 01.03.2017 passed by the trial courtstands restored. [Para 21-22][428-F-H; 429-A]

Bimal Chand Jain v. Sri Gopal Agarwal 1981 (3) SCC486 : [1982] (1) SCR 124; Manik Lal Majumdar andCOrs. v. Gouranga Chandra Dey and Ors. AIR 2005SC 1090 : [2005] (1) SCR 437; Ladly Prasad v. RamShah Billa and Ors. (1976) 2 ALR 8; Kunwar Baldevjiv. The XI Additional District Judge, Bulandshahar andOrs. (2003) 1 ARC 637; Miss Santosh Mehta v. OmDPrakash and Ors. (1980) 3 SCC 610 : [1980] 3 SCR325; Smt. Kamla Devi v. Vasdev (1995) 1 SCC 356 :[1994] 6 Suppl. SCR 603; Hisamul Islam Siddiqui andAnr. v. Mohd. Javed Barki 2016 (131) RD 135 –referred to.

From the Judgment and Order dated 02.11.2018 of the High Courtof Judicature at Allahabad in Matters Under Article 227 No.2419 ofG2018.

Dinesh K. Garg, Dhananjay Garg, Abhishek Garg, N. Suresha,Advs. for the Appellant.

Praveen Jain, Adv. for the Respondent.

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The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Leave granted.

2. The present appeal arises out of a suit for eviction and recoveryof arrears of rent as also damages for use and occupation, as filed bythe plaintiff-appellant against the defendant-respondent[1], wherein theorder dated 01.03.2017, as passed by the Trial Court striking off thedefence of the defendant-respondent for failure to pay or deposit thedue rent, which was approved by the Revisional Court in its order dated18.01.2018, has been set aside by the High Court in its impugned orderdated 02.11.2018.

3. The root question calling for determination in this appeal is asto whether the High Court was right in reversing the order striking offdefence in terms of Order XV Rule 5 of the Code of Civil Procedure,1908[2], as applicable to the present case[3]?

4. The relevant factual and background aspects, so far relevantfor the present purpose, are as follows:

4.1. The plaintiff-appellant has filed the suit leading to this appeal,being S.C.C. Suit No. 27 of 2011, in the Court of Judge, Small Causes,Aligarh against the defendant-respondent on 30.04.2011 with theaverments, inter alia, that she is the owner of a shop bearing MunicipalCorporation No. 1/225, situated at Naurangabad Sahar, Kol, Aligarh, forhaving purchased the same from the erstwhile owner Shri Rajiv KantSharma through a registered sale deed dated 10.05.2010. The appellanthas further averred that the defendant-respondent is a tenant in the suitshop since the time of its erstwhile owner on a monthly rent of Rs. 625/

- apart from statutory taxes; that after her purchasing the shop, thedefendant became her tenant; and that after registration of the sale deed,the erstwhile landlord had informed the defendant about sale of the shopto the plaintiff.

1 Hereinafter, the parties have also been referred to as ‘the plaintiff’ or as ‘the defendant’,as per their status in the suit.

2 ‘CPC’, for short.

3 Rule 5 of Order XV was inserted to CPC for its application in the State of UttarPradesh by the Uttar Pradesh Laws (Amendment) Act, 1972; it was substituted by theUttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 w.e.f. 01.01.1977 andwas slightly amended by Notification No. 121/IV-h-36-D dated 10.02.1981 w.e.f.03.10.1981.

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A4.2. The plaintiff-appellant has alleged that the defendant-respondent was a chronic defaulter in payment of rent and taxes; anddespite information of the sale deed dated 10.05.2010 and despite demandmade by her, the rent along with taxes had not been paid by him sincethe month of May 2010. The plaintiff has averred that she got served alegal notice under Section 106 of the Transfer of Property Act, 1882 toBthe defendant on 08.02.2011, who refused to accept the notice and hasneither paid the balance rent and damages nor vacated the suit shop. Ithas also been pointed out that the suit shop was a newly constructed oneto which, the provisions of U.P. Act No. 13 of 1972 were not applicable.While asserting her right to receive the rent and damages in relation toCthe suit shop from the month of May 2010 and with other avermentsregarding cause of action, jurisdiction and court fee etc., the plaintiff hasclaimed the reliefs in the following terms: - “10. That the plaintiff is entitled for the following relief: -

a) the decree may kindly be passed in favour of the plaintiff andDagainst the defendant for realizing amount of Rs. 8,050/- anddamages for use and occupation @ Rs.625/- per month presentlyand in future besides the taxes.

b) a decree of eviction in favour of plaintiff and against thedefendant for the shop which is in the possession of defendantEand after eviction of the defendant the possession of the shopmay be given to the plaintiff through the Amin of the Court, maybe passed.

c) the expenses of the suit may be recovered from the defendantand be given to the plaintiff.Fd) any other relief which this Hon’ble Court may deem fit andproper in the circumstances of the case may be given to theplaintiff.”

4.3. In his written statement, the defendant-respondent has, inessence, denied the relationship of landlord and tenant between theGplaintiff and himself, though he would not deny his status as tenant in thesuit shop. The defendant has also asserted that the alleged sale deeddated 10.05.2010 is illegal and void. He has assigned the reasons for thisassertion by relying on certain recitals made by said Shri Rajiv KantSharma in another sale deed dated 04.05.2010 executed in favour ofHAbhishek Gupta (son of the present plaintiff) and particularly, the boundaries on the northern side of the said property. In other words, theassertion is that in the sale deed dated 04.05.2010, no such shop wasshown on the northern side as attempted to be sold by the sale deeddated 10.05.2010. The defendant has further asserted that the shop inquestion was let out to him by Smt. Sudha Sharma wife of Shri RajivKant Sharma; and not by Shri Rajiv Kant Sharma, the alleged transferorof the plaintiff. According to the defendant, Shri Rajiv Kant Sharma wasnot the landlord; and his landlady Smt. Sudha Sharma had not transferredthe shop in question to the plaintiff. The defendant has also alleged thatSmt. Sudha Sharma was earlier issuing the rent receipts but afterwards,stopped giving the receipts though she was regularly receiving rent andthat the rent up to 31.08.2010 had been paid to Smt. Sudha Sharma. Thedefendant has also refuted the averments about inapplicability of U.P.Act No. 13 of 1972 and has alleged that the shop in question being tooold, the said Act is applicable to it. The defendant has yet further assertedthat the notice dated 18.02.2011 never reached him and he had neverrefused to receive the notice.

4.4. It is also noticed that at the stage of evidence in this suit, thedefendant moved an application seeking appointment of a CourtCommissioner with the submissions that a site plan, containing the detailsof the property, including the measurement of the suit shop and the housesituated on the southern side of the shop was required to be called. TheTrial Court considered and rejected this application by its order dated03.02.2016, for there being no reason to issue a commission in view ofthe respective stand of the parties and the real questions involved in thematter.

4.5. Thereafter, the plaintiff-appellant filed an application withreference to the provisions of Order XV Rule 5 CPC as applicable tothe present case and prayed that the defence of the defendant-respondentbe struck off, for the reason that defendant had not deposited any rentand no evidence was adduced by him to establish any payment of rent.This application was contested by the defendant-respondent with thesubmissions that the provisions of Order XV Rule 5 CPC were applicableonly to a case where the defendant would accept the plaintiff as hislandlord; and in the present case, he had taken the special plea that theplaintiff was not the landlord or the owner of the suit shop and hadclearly averred that there was no relationship of landlord and tenantbetween the plaintiff and defendant. The defendant-respondent also A

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Areferred to certain rent receipts said to have been issued by the saidSmt. Sudha Sharma.

4.6. After having examined the record and the rival contentions,the Trial Court, in its order dated 01.03.2017, found that no evidencewas placed on record by the defendant to show his payment of rent toBthe plaintiff and observed that even if the tenant would deny therelationship of landlord and tenant, the application under Order XV Rule5 CPC was maintainable. The Trial Court, accordingly, proceeded tostrike off the defence while observing, inter alia, as under: - “No such evidence has been filed on the record by the defendantCso that it could become explicit that on the date of sale deed on10.05.2010, the alleged rent was deposited in favour of Asha Devior payment was made to the plaintiff Asha Devi. According tothe aforesaid documentary evidence available on the record,principle of law laid down in the citations, if the tenant has deniedthe relationship landlord and tenant, then the application shall beDmaintainable under the provision of Order XV Rule 5 of CivilProcedure Code. As per the citation relied upon on behalf of theplaintiff is more recent in comparison to the citation relied uponby the defendant. Although the principle of law laid down in bothcitations are applicable with respect to the case in this Court, butEdue to the citation relied upon by the plaintiff being more recent,so it has more significance. Therefore, the application 61Ga ofthe plaintiff ought to be allowed and the defence of the defendantought to be struck off.

ORDER

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The application 61Ga is allowed and the defence of thedefendant is struck off. The record be put up on 16.03.2017 forcross examination of the witness PW-1.”

4.7. The order aforesaid was challenged by the defendant-respondent in S.C.C. Revision No. 11 of 2017, which was duly consideredGand dismissed by the Fourth Additional District Judge, Aligarh on18.01.2018, while agreeing with the Trial Court and observing as under:- “The revisionist has admitted as the tenant of the shop in suitin the written statement. But it was mentioned that the respondent/ plaintiff is not the owner of the shop in suit and the respondentHhas averred that she is the owner of the shop in suit on the basis of the sale deed. This fact is undisputed that the revisionist did notdeposit the rent of the shop in suit in the Court on the first date ofhearing and even he did not deposit the rent corresponding to theperiod thereafter. In case the revisionist denies the relationship oftenant and landlord, then he should have complied with secondpart of the Order XV Rule 5 of Civil Procedure Code, but it wasnot done so as per the principle of law laid down by the Hon’bleHigh Court of Allahabad in the citation 2012 (1) CAR, 93 Allahabad,Mukesh Singh & Ors. Vs. Ramesh Chand Solanki. Therefore, inview of facts and circumstances of the present case, no error oflaw is found in the impugned order passed by the Ld. SubordinateCourt and even the Ld. Subordinate Court has not superseded itsjurisdiction. Therefore, there appears no sufficient ground tointerfere with the impugned order. Consequently the revision oughtto be set aside.”

5. The defendant-respondent, being aggrieved of the ordersaforesaid, approached the High Court under Article 227 of theConstitution of India and his petition (No. 2419 of 2018) came to beallowed by the High Court by way of its impugned order dated 02.11.2018.

5.1. The High Court took note of the background aspects and thelong-drawn arguments with case laws cited by either of the parties; andafter a survey of various decisions of the Allahabad High Court as alsoof this Court, took the view that the discretionary power as regardsstriking off defence must be exercised with great circumspection.Thereafter, though the High Court observed that the pleas taken by thedefendant-respondent might apparently be for the purpose of protractingthe litigation as the property was purchased through a registered saledeed that distinctly carried the number (1/225) of the shop which was letout to the defendant-respondent but, opined that the defendant-respondentwas entitled to ‘some indulgence’. The High Court, thus, set aside theorders impugned before it; and issued directions to the defendant todeposit the arrears of rent together with interest within one month; andfurther to deposit the current rent as determined by the Trial Court,month by month, by seventh of every month during the pendency oflitigation.

5.2. In the impugned order dated 02.11.2018, where first 42paragraphs are devoted to background facts, rival contentions anddiscussion concerning cited decisions with several extractions, entire of AB

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Athe reasoning and then, conclusion and directions of the High Court arecontained in paragraphs 43 to 47, which could be usefully reproduced asunder: - “43. This Court finds from a consideration of the judgments citedby the counsel for either of the parties that the language of OrderBXV, Rule 5 CPC is similar to the language used in sub section 7 ofSection 15 of the Delhi Rent Control Act, 1958 and sub section 1of Section 13 of the Tripura Building Lease and Control Act,1975. The Delhi Rent Control Act, was considered by the SupremeCourt in Miss. Santosh Mehta Vs. Om Prakash and in KamlaDevi Vs. Basudev.C

44. The Supreme Court observed that the Rent Control Court /Appellate Authority has been conferred with a discretionary powerwhich must be exercised with great circumspection.

45. In the case of the petitioner who is the defendant before theDlearned Trial Court, a specific plea was taken regarding nonexistence of relationship of landlord and tenant. In fact theownership of the landlord of the Suit property was also denied, asalso the identity of the Suit property, which was allegedly purchasedby the plaintiffs. Though the pleas taken by the defendant / tenantmay apparently be for the purpose of protracting the litigation asEthe property was bought through a registered sale deed and theshop number mentioned in the said sale deed was 1/225 whichwas the same as the shop rented out to the defendant / tenant, yetthe defendant / tenant deserves some indulgence.

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46. The orders impugned are set aside. However, a direction isFissued to the petitioner / tenant to deposit arrears of rent @ Rs.625/- per month along with 9% interest per annum and cost beforethe learned Trial Court within a period of one month from today.The tenant shall also deposit the current rent as determined bythe learned Trial Court, month to month by the seventh of everyGmonth during the pendency of the litigation. All such deposits madeby the tenant shall be kept in a separate interest bearing accountby the learned Trial Court and shall abide by the final decision ofthe SCC Suit filed by the plaintiff / respondents.

47. This matter stands thus disposed of.”

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47. This matter stands thus disposed of.”

(emphasis supplied)

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6. Assailing the order so passed by the High Court, learned counselappearing for the plaintiff-appellant has strenuously argued that the HighCourt has dealt with the matter in a rather cursory manner and haserroneously upset the considered orders dated 01.03.2017 and18.01.2018, as passed respectively by the Trial Court and the RevisionalCourt, striking off the defence of the defendant-respondent in terms ofOrder XV Rule 5 CPC for non-payment of the due amount of rent/damages.

6.1. Learned counsel has argued that the High Court hasmisinterpreted and misapplied the provisions of Order XV Rule 5 CPCand has allowed the petition filed by the defendant by merely holdingthat he was entitled to some indulgence but, without giving any specificreason or finding to overturn the considered orders passed by thesubordinate Courts.

6.2. Learned counsel has referred to the provisions contained inOrder XV Rule 5 CPC and has submitted that as per the said provisions,the defendant-respondent, being the tenant of the suit shop, was requiredto pay or deposit the entire rent for use and occupation of the shop inquestion but, he neither paid nor deposited the due amount on the firsthearing though he filed the written statement on 04.09.2012; and he didnot pay or deposit the monthly amount due during the continuation of thesuit. According to the learned counsel, even if the defendant-respondenthad taken the plea suggestive of denial of title of the plaintiff and denialof the relationship of landlord and tenant, he is not absolved of the liabilityto make payment of rent; and on his failure to make such payment/deposit, the consequences contemplated by the Order XV Rule 5 CPCwould indeed follow and he cannot be granted any so-called indulgence.

6.3. Learned counsel has also attempted to refer to the additionaldocument filed with I.A. No. 24489 of 2022, inter alia, being of affidavitfiled by the defendant-respondent in the year 1990 admitting Shri RajivKant Sharma as the owner of the suit property, from whom the plaintiff-appellant had purchased under the registered sale deed dated 10.05.2010.

7. Per contra, learned counsel for the defendant-respondent hasduly supported the order impugned and has submitted that the view takenby the High Court calls for no interference.

7.1. It has been submitted with reference to the decisions of thisCourt in the case of Bimal Chand Jain v. Sri Gopal Agarwal: 1981

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A(3) SCC 486 and Manik Lal Majumdar and Ors. v. GourangaChandra Dey and Ors.: AIR 2005 SC 1090 that when the defendant-respondent has taken specific plea regarding non-existence of relationshipof landlord and tenant, he is not liable to deposit any rent in terms of theOrder XV Rule 5 CPC. It is submitted that the plaintiff’s ownership ofthe suit property has been denied by the defendant and the identity ofBthe property allegedly purchased by the plaintiff has also been questioned;and these contentions/objections of the defendant could only be decidedafter the trial. Thus, until the matter is duly tried, the defendant cannotbe compelled to deposit the arrears of rent due in this suit and the HighCourt has rightly extended him indulgence of not striking off the defence.C

7.2. It has also been submitted that the defendant-respondent hadpaid the rent to the erstwhile landlord Smt. Sudha Sharma upto 31.08.2010and the receipts said to have been given by her have been referred to. Ithas further been submitted that the defendant-respondent, obviously,entertained genuine doubt about the entitlement of the plaintiff becauseDthe erstwhile landlord had never informed about her having sold theproperty and for payment of rent to the plaintiff; and in view of obviousdiscrepancies in the description of properties allegedly sold by Shri RajivKant Sharma, there had been genuine confusion about the landlord/ownerof the property. In this scenario, the defendant-respondent cannot befaulted in raising objection and in not making deposit of rent in the presentEsuit.

7.3. It has been asserted on behalf of the respondent that theexpression “may” in sub-rule (1) of Rule 5 of the Order XV merelyvests discretionary power in the Court to strike off the defence but, itdoes not oblige the Court to do so in every case of default or non-paymentFof rent. In regard to the operation of Order XV Rule 5 CPC, learnedcounsel for the defendant-respondent has also relied upon the DivisionBench decisions of the High Court in Ladly Prasad v. Ram Shah Billaand Ors.: (1976) 2 ALR 8 and in Kunwar Baldevji v. The XIAdditional District Judge, Bulandshahar and Ors.: (2003) 1 ARCG637.

7.4. It has also been pointed out that pursuant to the order passedby the High Court, the defendant-respondent has deposited the entirerent from 10.05.2010 to 10.11.2018 and is also making further depositsregularly.

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ASHA RANI GUPTA v. SRI VINEET KUMAR[DINESH MAHESHWARI, J.]

8. We have given thoughtful consideration to the rival submissionsand have examined the record with reference to the law applicable tothe present case.

9. For dealing with the relevant question involved, it would beappropriate to take note of the provisions of Order XV Rule 5 CPC, asapplicable to the present case. These provisions read as under: - “5. Striking off defence on failure to deposit admitted rent. -(1) In any suit by a lessor for the eviction of a lessee after thedetermination of his lease and for the recovery from him of rentor compensation for use and occupation, the defendant shall, at orbefore the first hearing of the suit, deposit the entire amountadmitted by him to be due together with interest thereon at therate of nine per centum per annum and whether or not he admitsany amount to be due, he shall throughout the continuation of thesuit regularly deposit the monthly amount due within a week fromthe date of its accrual, and in the event of any default in makingthe deposit of the entire amount admitted by him to be due or themonthly amount due as aforesaid, the court may, subject to theprovisions of sub-rule (2), strike off his defence.

Explanation 1.- The expression ‘first hearing’ means the datefor filing written statement or for hearing mentioned in the summonsor where more than one of such dates are mentioned, the last ofthe dates mentioned.

Explanation 2.- The expression ‘entire amount admitted by himto be due’ means the entire gross amount, whether as rent orcompensation for use and occupation, calculated at the admittedrate of rent for the admitted period of arrears after making noother deduction except the taxes, if any, paid to a local authority inrespect of the building on lessor’s account and the amount, if any,paid to the lessor acknowledged by the lessor in writing signed byhim and the amount, if any, deposited in any court under section30 of the U.P. Urban Buildings (Regulation of Letting, Rent andEviction) Act, 1972.

Explanation 3.- The expression ‘monthly amount due’ meansthe amount due every month, whether as rent or compensationfor use and occupation at the admitted rate of rent, after makingno other deduction except the taxes, if any, paid to a local authorityin respect of the building on lessor’s account.

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A(2) Before making an order for striking off defence, the courtmay consider any representation made by the defendant in thatbehalf provided such representation is made within 10 days, ofthe first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

B(3) The amount deposited under this rule may at any time bewithdrawn by the plaintiff:

Provided that such withdrawal shall not have the effect ofprejudicing any claim by the plaintiff disputing the correctness ofthe amount deposited:

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Provided further that if the amount deposited includes any sumsclaimed by the depositor to be deductible on any account, thecourt may require the plaintiff to furnish the security for such sumbefore he is allowed to withdraw the same.”

D9.1. A few basic factors related with the provisions of Order XVRule 5 CPC could be noticed at once. As per these provisions, in a suitby a lessor for eviction of a lessee after the determination of lease andfor recovery of rent or compensation for use and occupation, the defendantis under the obligation: (1) to deposit the entire amount admitted by himto be due together with interest at the rate of 9% per annum on orEbefore the first hearing of the suit; and (2) to regularly deposit the monthlyamount due within a week of its accrual throughout the pendency of thesuit. The consequence of default in making either of these deposits isthat the Court may strike off his defence. The expression ‘first hearing’means the date for filing written statement or the date for hearingFmentioned in the summons; and in case of multiple dates, the last ofthem. The expression ‘monthly amount due’ means the amount due everymonth, whether as rent or damages for use and occupation at the admittedrate of rent after making no other deduction except taxes, if paid to thelocal authority on lessor’s account. It is, however, expected that beforemaking an order striking off defence, the Court would consider theGrepresentation of the defendant, if made within 10 days of the first hearingor within 10 days of the expiry of one week from the date of accrual ofmonthly amount.

10. At this juncture, we may also take note of the decisions whichhave been referred to and relied upon.H

10.1. The High Court has primarily based its decision on the casesof Miss Santosh Mehta v. Om Prakash and Ors.: (1980) 3 SCC 610and Smt. Kamla Devi v. Vasdev:(1995) 1 SCC 356. Both these casesrelated to the operation of Section 15(7) of the Delhi Rent Control Act,1957[4].

10.1.1. In the case of Miss Santosh Mehta (supra), the tenant, aworking woman, had regularly paid the rent to her advocate, who neitherdeposited the same in the Court nor paid it to the landlord. In the givencircumstances, this Court found it unjustified to punish the tenant bystriking out the defence. In that context, this Court observed that underSection 15(7) of the Delhi Rent Act, it was in the liberal discretion of theRent Controller, whether or not to strike out the defence. This Courtalso observed that it was of harsh and extreme step, and having regardto the benign scheme of the legislation, this drastic power was meant foruse in grossly recalcitrant situations where the tenant was guilty ofdisregard in paying rent. This Court further said, - “3. We must adopt a socially informed perspective while construingthe provisions and then it will be plain that the Controller is armedwith a facilitative power. He may or may not strike out the tenant’sdefence. A judicial discretion has built-in-self-restraint, has thescheme of the statute in mind, cannot ignore the conspectus ofcircumstances which are present in the case and has the broodingthought playing on the power that, in a Court, striking out a party’sdefence is an exceptional step, not a routine visitation of a punitiveextreme following upon a mere failure to pay rent. First of all,there must be a failure to pay rent which, in the context, indicateswilful failure, deliberate default or volitional non-performance.Secondly, the section provides no automatic weapon but prescribesa wise discretion, inscribes no mechanical consequence but investsa power to overcome intransigence. Thus, if a tenant fails orrefuses to pay or deposit rent and the court discerns a mood ofdefiance or gross neglect, the tenant may forfeit his right to beheard in defence….

4. There is no indication whatsoever in the Act to show that theexercise of the power of striking out of the defence under S.15(7) was imperative whenever the tenant failed to deposit or 4 Hereinafter also referred to as ‘the Delhi Rent Act’.

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Apay any amount as required by S. 15. The provisions contained inS. 15(7) of the Act are directory and not mandatory. It cannot bedisputed that S. 15(7) is a penal provision and gives to the Controllerdiscretionary power in the matter of striking out of the defence,and that in appropriate cases, the Controller may refuse to visitupon the tenant the penalty of non-payment or non-deposit. TheBeffect of striking out of the defence under S. 15(7) is that thetenant is deprived of the protection given by S. 14 and, therefore,the powers under S. 15(7) of the Act must be exercised with duecircumspection.”

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10.1.2. In the case of Smt. Kamla Devi (supra), the order forCpayment or depositing the arrears of rent was made on 27.01.1984 andthe payment/deposit was to be made within one month. The tenant paidcertain amount to the appellant but did not pay the arrears. Earlier, theRent Controller passed the order denying benefit to the tenant and orderedeviction but the matter was remanded for consideration of the questionDof condonation of delay in depositing the arrears. After remand, theRent Controller held that there was some compromise between the partiesand in any case, delay in deposit could not be termed as wilful, deliberateor contumacious and hence, condoned the same. The order so passedwas maintained by the Tribunal and the High Court. The landlord thenappealed to this Court. This Court referred to the scheme of the enactmentEas also the decision in Miss Santosh Mehta (supra) and held that Section15(7) of the Delhi Rent Act gave discretion to the Rent Controller, whomay or may not pass the order striking out defence but, exercise of thisdiscretion will depend upon the circumstances of each case. This Courtobserved, inter alia, as under: - F

“23. …… In our view, sub-section (7) of Section 15 of the DelhiRent Control Act, 1958 gives a discretion to the Rent Controllerand does not contain a mandatory provision for striking out thedefence of the tenant against eviction. The Rent Controller mayor may not pass an order striking out the defence. The exerciseGof this discretion will depend upon the facts and circumstances ofeach case. If the Rent Controller is of the view that in the facts ofa particular case the time to make payment or deposit pursuant toan order passed under sub-section (1) of Section 15 should beextended, he may do so by passing a suitable order. Similarly, if heis not satisfied about the case made out by the tenant, he may order the defence against eviction to be struck out. But, the powerto strike out the defence against eviction is discretionary and mustnot be mechanically exercised without any application of mind tothe facts of the case.”

10.2. In the case of Manik Lal Majumdar (supra), the questionwas slightly different and was related to the maintainability of appeal interms of Section 20 of Tripura Buildings (Lease and Rent Control) Act,1975 where, in view of the embargo put by Section 13 of the said Act,the tenant was not entitled to prefer an appeal unless he had paid ordeposited all arrears of rent admitted by him to be due. This Court put apurposive interpretation to the expression ‘prefer an appeal’ whileobserving that mere filing of appeal was not prohibited but, the AppellateAuthority may not proceed with the hearing of appeal or pass an interimorder in favour of the tenant until he had paid or deposited the arrears ofrent.

10.3. The case of Bimal Chand Jain (supra) directly related tothe provisions of Order XV Rule 5 CPC, as applicable to the presentcase. Therein, though the tenant had deposited the arrears admitted tobe due, but had failed to make regular deposits of monthly rent and tosubmit representation in terms of sub-rule (2) of Rule 5 of Order XV.Thus, the Trial Court proceeded to strike off the defence; and the HighCourt affirmed the order of the Trial Court. In the said case, the HighCourt proceeded with reference to an earlier decision of its DivisionBench that in the given circumstances, the Court was obliged to strikeoff defence. Such a construction of the said provisions by the High Court,giving them mandatory character, was not approved by this Court andthe matter was remanded to the High Court for reconsideration with thefollowing observations: - “6. … Sub-rule (2) obliges the court, before making an order forstriking off the defence to consider any representation made bythe defendant in that behalf. In other words, the defendant hasbeen vested with a statutory right to make a representation to thecourt against his defence being struck off. If a representation ismade the Court must consider it on its merits, and then decidewhether the defence should or should not be struck off. This is aright expressly vested in the defendant and enables him to showby bringing material on the record that he has not been guilty ofthe default alleged or if the default has occurred there is good A

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Areason for it. Now, it is not impossible that the record may containsuch material already. In that event, can it be said that sub-r. (1)obliges the court to strike off the defence? We must rememberthat an order under sub-rule (1) striking off the defence is in thenature of a penalty. A serious responsibility rests on the court inthe matter and the power is not to be exercised mechanically.BThere is a reserve of discretion vested in the court entitling it notto strike off the defence if on the facts and circumstances alreadyexisting on the record it finds good reason for not doing so. It willalways be a matter for the judgment of the court to decide whetheron the material before it, notwithstanding the absence of aCrepresentation under sub-rule (2), the defence should or shouldnot be struck off. The word “may” in sub-rule (1) merely vestspower in the court to strike off the defence. It does not oblige it todo so in every case of default.To that extent, we are unable toagree with the view taken by the High Court in PuranChand (1981All LJ 82) (Supra). We are of opinion that the High Court hasDplaced an unduly narrow construction on the provisions of clause(1) of Rule 5 of Order XV.”

10.4. In Ladly Prasad (supra), the Division Bench of AllahabadEHigh Court held as follows: - “8….In case the court after considering the representation madeby the defendant comes to the conclusion that the circumstancesjustify grant of further time on security being furnished for theamount, the court will be competent to do so. It is not obligatoryFon the court to refuse to entertain any defence or to strike off thedefence in a case default is committed by the defendant in makingthe requisite deposits…..”

10.5. In Kunwar Baldevji (supra), another Division Bench of theHigh Court observed as under: - G

G“13. If amount of rent is admitted then it is not required to beadjudicated by the Court. In case, tenant denies any rent to bedue, Court shall be required to decide the same. It is obvious thatin such contingency Court will have to adjudicate and its findingwill come subsequent to the ‘first date of hearing’ contemplatedunder Order 15, Rule 5, Code of Civil Procedure. It is, therefore,H

evident that by the time the Court will render its finding, ‘first dateof hearing’ which is cut off date for deposition of rent, shall beover. It also requires no comment that such an issue is first to beframed and thereafter adjudicated after parties have led evidencein accordance with law.”

10.6. We have also noticed that in the case of Hisamul IslamSiddiqui and Anr. v. Mohd. Javed Barki: 2016 (131) RD 135, asreferred to in the impugned order, a learned Single Judge of the sameHigh Court had referred to the provisions of Order XV Rule 5 CPC asalso Section 109 of the Transfer of Property Act, 1882; and after findingthat the purchaser became the landlord by operation of law upon transferof property, the High Court took note of the fact that the defendant hadnot denied the status as tenant by filing written statement and had notdeposited any rent. Hence, it was held that the Trial Court had rightlystruck off the defence.

11. The present suit has been filed by the plaintiff-appellant claimingher capacity as the lessor after having purchased the suit property fromits erstwhile owner. According to the plaintiff, the defendant has beenthe lessee in the suit shop and his lease was determined; and whilealleging the rent to be due and having not been paid despite demand, theplaintiff has filed this suit for eviction and recovery of arrears of rentand damages for use and occupation. Having regard to the plaintaverments, the suit in question is clearly the one to which the provisionsof Order XV Rule 5 CPC are applicable.

11.1. Though the aforesaid decisions in cases of Miss SantoshMehta, Smt. Kamla Devi and Manik Lal Majumdar related to therespective rent control legislations applicable to the respectivejurisdictions, which may not be of direct application to the present casebut and yet, the relevant propositions to be culled out for the presentpurpose are that any such provision depriving the tenant of defencebecause of default in payment of the due amount of rent/arrears havebeen construed liberally; and the expression ‘may’ in regard to the powerof the Court to strike out defence has been construed as directory andnot mandatory. In other words, the Courts have leaned in favour of notassigning a mandatory character to such provisions of drastic consequenceand have held that a discretion is indeed reserved with the Court concernedwhether to penalise the tenant or not. However, and even while reservingsuch discretion, this Court has recognised the use of such discretion A

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Aagainst the defendant-tenant in case of wilful failure or deliberate defaultor volitional non-performance. This Court has also explained the principlesin different expressions by observing that if the mood of defiance orgross neglect is discerned, the tenant may forfeit his right to be heard indefence. The sum and substance of the matter is that the power tostrike off defence is considered to be discretionary, which is to beBexercised with circumspection but, relaxation is reserved for a bonafidetenant like those in the cases of Miss Santosh Mehta and Smt. KamlaDevi (supra)and not as a matter of course. The case of Bimal ChandJain(supra) directly related with Order XV Rule 5 CPC where the tenanthad deposited the arrears admitted to be due but, failed to make regularCdeposits of monthly rent and failed to submit representation in terms ofsub-rule (2) of Rule 5 of Order XV. The defence was struck off in thatmatter with the Trial Court and the High Court taking the said provisionsof Order XV Rule 5 CPC as being mandatory in character. Such anapproach was not approved by this Court while indicating the reserve ofDdiscretion in not striking off defence if, on the facts and circumstancesexisting on record, there be good reason for not doing so. The commonthread running through the aforesaid decisions of this Court is that thepower 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 andadequate reason.E

11.2. The question of good and adequate reason for not strikingoff the defence despite default would directly relate with such facts,factors and circumstances where full and punctual compliance had notbeen made for any bonafide cause, as contradistinguished from anapproach of defiance or volitional/elective non-performance.F

12. Reverting to the provisions under consideration, it is noticedthat while the first part of sub-rule (1) of Rule 5 of Order XV CPCrequires deposit of the admitted due amount of rent together with interest,the second part thereof mandates that whether or not the tenant admitsthe amount to be due, he has to, throughout the continuation of the suit,Gregularly deposit monthly amount due within a week from the date of itsaccrual. Read as a whole, it is but clear that Order XV Rule 5 CPCembodies the fundamental principle that there is no holidaying for a tenantin payment of rent or damages for use and occupation, whether thelease is subsisting or it has been determined. The only basic requirement H

in the suit of the nature envisaged by Order XV Rule 5 CPC is thecharacter of defendant as being the lessee/tenant in the suit premises.Viewed from this angle, we are not inclined to accept the line of thoughtin some of the decisions of the High Court that in every case of denial ofrelationship of landlord and tenant, the defendant in suit for eviction andrecovery of rent/damages could enjoy holidays as regards payment ofrent.

12.1. For what has been discussed hereinabove, the decision ofthe High Court in Ladly Prasad (supra) does not require much dilationwhen it remains indisputable that it is not always obligatory on the Courtto strike off the defence. However, the said decision cannot be read tomean that despite default of the tenant in payment of rent, the defencehas to be permitted irrespective of its baselessness. The decision inKunwar Baldevji (supra), again, would have no application to the factsof the present case. Herein, the defendant-respondent has not onlyomitted to deposit the rent on the first date of the hearing but, has alsoomitted to deposit the accrued rent during the pendency of the suit.

13. In a suit of the present nature, where the defendant otherwisehas not denied his status as being the lessee, it was rather imperative forhim to have scrupulously complied with the requirements of law and tohave deposited the arrears of rent due together with interest on or beforethe first date of hearing and in any case, as per the second part of sub-rule (1) of Rule 5 of Order XV CPC, he was under the specific obligationto make regular deposit of the monthly amount due, whether he wasadmitting any such dues or not.

14. In the context of the proposition of denial of title of the plaintiffand denial of relationship of landlord and tenant between the plaintiffand defendant, we may also observe that such a denial simpliciter doesnot and cannot absolve the lessee/tenant to deposit the due amount ofrent/damages for use and occupation, unless he could show having madesuch payment in a lawful and bonafide manner. Of course, the questionof bonafide is a question of fact, to be determined in every case withreference to its facts but, it cannot be laid down as a general propositionthat by merely denying the title of plaintiff or relationship of landlord-tenant/lessor-lessee, a defendant of the suit of the present nature couldenjoy the property during the pendency of the suit without depositing theamount of rent/damages.

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A15. Taking the facts of the present case, it is at once clear that thedefendant-respondent, by his assertions and conduct, has left nothing todoubt that he has been steadfast in not making payment of rent/damages,despite being lessee of the suit shop. The present one has clearly beenthe case of volitional non-performance with nothing left to guess aboutthe defendant’s mood of defiance. Nothing of any fact or any circumstanceBis existing on record to find even a remote reason for extending anylatitude or relaxation in operation of Order XV Rule 5 CPC to the presentcase. It shall be apposite at this juncture to also observe that thecontentions on behalf of the defendant-respondent to the effect that hehad made payment of rent to the alleged erstwhile landlord Smt. SudhaCSharma and contra submissions on behalf of the appellant that even inthe year 1990, the defendant-respondent admitted the said Shri RajivKant Sharma as the owner of the property as also the factors co-relatedwith these submissions, do not call for adjudication in this appeal. This is for two simple reasons: One, that so far as the fact of volitional non-Dperformance by the defendant-respondent is concerned, with no cogentevidence of lawful payment of rent, the findings of fact by the TrialCourt and the Revisional Court against the defendant-respondent standfinal and have not been disturbed even by the High Court. There appearsno reason for this Court to enter into any factual inquiry as regardspayment of rent to Smt. Sudha Sharma or otherwise, now in this appeal.ESecondly, so far as any affidavit filed by the defendant-respondent in theyear 1990, allegedly admitting Shri Rajiv Kant Sharma as owner ofproperty is concerned, it may be a matter of adjudication by the TrialCourt but would not be a matter of consideration in this appeal. Sufficeit to observe that the present one is a case very near and akin to that ofFHisamul Islam Siddiqui (supra)wherein, the learned Single Judge ofthe same High Court has approved the order striking off the defenceafter finding want of deposit of the amount of rent, despite the defendanthaving not denied his status as tenant.

16. In the totality of facts and circumstances, we are clearly ofGthe view that there was absolutely no reason for the High Court to haveinterfered in the present case, where the Trial Court had struck off thedefence after finding that there was no evidence on record to show thepayment or deposit of rent in favour of the plaintiff by the defendant-respondent. The Revisional Court had also approved the order of theTrial Court on relevant considerations. Even the High Court did not findH

the pleas taken by the defendant-respondent to be of bonafide character,particularly when survey number of the shop let out to him was clearlystated in the sale deed executed in favour of the plaintiff. We find itrather intriguing that, despite having not found any cogent reason forwhich discretion under Rule 5 of Order XV CPC could have beenexercised in favour of the defendant-respondent, the High Court, in thelast line of paragraph 45 of the order impugned, abruptly stated itsconclusion that: ‘yet the defendant/tenant deserves some indulgence’.

17. With respect, the said conclusion of the High Court couldonly be said to be an assumptive one, being not supported by anyreason. In paragraph 44, of course, the High Court observed withreference to the decisions of this Court that the discretionary powermust be exercised with great circumspection but, such enunciation bythis Court cannot be read to mean that whatever may be the fault andwant of bonafide in the defendant/tenant, he would be readily giventhe so-called ‘indulgence’ of not striking off defence. Such an approachis neither envisaged by the statutory provisions nor by the referreddecisions. In fact, such an approach would simply render the relevantprovisions of law rather nugatory. The expected circumspection wouldrequire the Court to be cautious of all the relevant facts and the materialon record and not to strike off the defence as a matter of routine.However, when a case of the present nature is before the Court,disclosing deliberate defiance and volitional/elective non-performance,the consequence of law remains inevitable, that the defence of such adefendant would be struck off.

18. For what has been discussed hereinabove, the impugned orderas passed by the High Court cannot be approved and is required to beset aside.

19. The submissions made on behalf of the defendant-respondentthat he had deposited the due rent from 10.05.2010 to 10.11.2018 andhe has been further making regular deposits do not take his case anyfurther. The defendant-respondent has made such deposits onlypursuant to the order of the High Court. The said order, being not inconformity with the law applicable and with the record of this case, isrequired to be set aside. In any event, any deposit made under orpursuant to the said order cannot wipe out the default already committedby the defendant-respondent. On the contrary, with setting aside of A

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Athe said order of the High Court, the order of the Trial Court shallstand revived. Simply put, the deposits belatedly made, pursuant onlyto the unsustainable order of the High Court, do not enure to the benefitof the defendant-respondent.

20. Before concluding on this matter, a few peripheral aspectsBmay also be indicated. The petition seeking special leave to appeal inthe present case was entertained on 28.01.2019 when this Court, whileissuing notice, stayed the operation and implementation of the impugnedorder of the High Court. Obviously, the impugned order dated02.11.2018 as passed by the High Court stood eclipsed under and byCvirtue of the stay order of this Court. Consequently, the suit was requiredto proceed with the order of the Trial Court dated 01.03.2017 strikingoff the defence of the defendant continuing in operation. The factshave been placed before us to the effect that the plaintiff soughtexpeditious disposal of the suit and in that regard, also filed a petitionbearing No. 2810 of 2020 before the High Court, which was disposedDof on 29.09.2020 with directions to the Trial Court to decide the saidsuit expeditiously and preferably within two years from the date ofproduction of the copy of the order without granting any unnecessaryadjournment to either of the parties. Thereafter, the Trial Courtconsidered and granted an application moved by the plaintiff to amendEthe plaint, so as to seek eviction of the defendant on the ground ofdenial of title. The said amendment was allowed on 18.02.2021. Asper the material placed on record, the additional written statement asfiled by the defendant was taken on record on 21.04.2022 and thematter was placed for plaintiff’s evidence.

F21. Having taken note of the subsequent events after passing ofthe impugned order by the High Court, suffice it to say that with theimpugned order of the High Court being set aside and that of the TrialCourt dated 01.03.2017 being restored by this judgment, it would beexpected of the Trial Court to take note of the fact that the suit filed wayback in the year 2011 has remained pending yet and is required to beGassigned a reasonable priority for expeditious disposal. The order passedby the High Court on 29.09.2020 is also to be kept in view by the TrialCourt.

22. Accordingly, and in view of the above, this appeal succeedsand is allowed; the impugned order dated 02.11.2018 is set aside withH

ASHA RANI GUPTA v. SRI VINEET KUMAR[DINESH MAHESHWARI, J.]

the result that the order dated 01.03.2017 passed by the Trial Courtstands restored. The Trial Court shall be expected to proceed with thematter while keeping in view the observations foregoing.

23. Having regard to the circumstances of the case, there shall beno order as to costs of this appeal.

Nidhi Jain

Appeal allowed.

(Assisted by : Shashwat Jain, LCRA)

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