# Kedar Nath v. Waqf Sheikh Abdullah Charitable Madursa, Allahabad & Ors

- **Citation:** (2015) 3 ILRA 1307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-11-23
- **Case number:** Matters Under Article 227 No. 6401 of 2015
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kedar-nath-v-waqf-sheikh-abdullah-charitable-madursa-allahabad-ors-43313
- **Pages:** 4

## Headnote

Constitution of India, Art.-227-read with
C.P.C. Order XV Rule-5-Striking out
defence-petitioner
on
first
date
of
hearing-e.g. 13.10.08 filed WS-on same
date deposited entire amount of rentwithdrawn by land lord-according sub
Rule (2) defendant has right to make
representation-the word used in sub
section (1) 'may' obliged the Court to
give
positive
consideration-rather
to
strike out defence in every case-not a
penal clause to the tenant but sole
purpose to ensure payment of entire
amount
of
rent-not
disputed
by
respondent/land lord held-defence can
not be strike off-both court below
committed-illegality quashed.
Held: Para-18
In the facts and circumstances of this
case, the court below have not recorded
a finding regarding the date of hearing of
the suit and proceeded to strike off the
defence
taking
into
account
the
intermittent delay in depositing the
subsequent sums by the applicant. It is
not disputed by learned counsel for the
respondent that the entire sum due has
already
been
deposited.
In
these
circumstances, I am of the view that the
impugned orders cannot be sustained,
accordingly, the petition is allowed.
Case Law discussed:
(1981) 3 SCC 486; [2013 (100) ALR 210];
[2007 (3) ARC 77]; 1998 (1) ARC 545; [2010
(2) ARC 260]; 1999 (1) AWC 715; 1996 (1)
ARC 62; 1996 (2) ARC 406; 2015 (2) ABR 406;
[2012 (1) ARC 691]; [2008 (2) ARC 621].

## Text

3 All] Kedar Nath Vs. Waqf Sheikh Abdullah Charitable Madursa, Allahabad & Ors.
1307
if the same has not been paid, the
competent authority will examine the
same and pass appropriate orders within a
period of two months keeping in mind
that the petitioner has already attained the
age of superannuation and is at the fag
end of his life.
18. With the aforesaid directions,
writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Matters Under Article 227 No. 6401 of 2015
Kedar Nath
 ...Petitioner
Versus
Waqf Sheikh Abdullah Charitable Madursa,
Allahabad & Ors.
.Respondents
Counsel for the Petitioner:
Sri Atul Dayal
Counsel for the Respondents:
Sri Anand Mohan Lal
Constitution of India, Art.-227-read with
C.P.C. Order XV Rule-5-Striking out
defence-petitioner
on
first
date
of
hearing-e.g. 13.10.08 filed WS-on same
date deposited entire amount of rentwithdrawn by land lord-according sub
Rule (2) defendant has right to make
representation-the word used in sub
section (1) 'may' obliged the Court to
give
positive
consideration-rather
to
strike out defence in every case-not a
penal clause to the tenant but sole
purpose to ensure payment of entire
amount
of
rent-not
disputed
by
respondent/land lord held-defence can
not be strike off-both court below
committed-illegality quashed.
Held: Para-18
In the facts and circumstances of this
case, the court below have not recorded
a finding regarding the date of hearing of
the suit and proceeded to strike off the
defence
taking
into
account
the
intermittent delay in depositing the
subsequent sums by the applicant. It is
not disputed by learned counsel for the
respondent that the entire sum due has
already
been
deposited.
In
these
circumstances, I am of the view that the
impugned orders cannot be sustained,
accordingly, the petition is allowed.
Case Law discussed:
(1981) 3 SCC 486; [2013 (100) ALR 210];
[2007 (3) ARC 77]; 1998 (1) ARC 545; [2010
(2) ARC 260]; 1999 (1) AWC 715; 1996 (1)
ARC 62; 1996 (2) ARC 406; 2015 (2) ABR 406;
[2012 (1) ARC 691]; [2008 (2) ARC 621].
(Delivered by Hon'ble Suneet Kumar, J.)
1. Heard learned counsel for the
parties.
2. On the request of the learned
counsel for the parties, the petition is
being decided at the admission stage
without calling for counter affidavit.
3.

The
tenant/applicant
has
approached the Court assailing order
dated 22 September 2015 passed by the
revisional court/Additional District Judge,
Court No. 12, Allahabad in Civil Revision
No. 101 of 2012 (Kedar Nath and others
Versus Waqf Sheikh Abdulla and others)
arising from order dated 31 January 2012
passed by the Judge Small Causes Court,
Allahabad in Original Suit No. 22 of
1999, whereby, the application under
Order XV Rule 5 C.P.C. filed by the first
respondent has been allowed.
4. The premises No. 205/46,
Minhajpur, Dr. Katju Road, Allahabad
belongs to the frist respondent, a suit for
1308
 INDIAN LAW REPORTS ALLAHABAD SERIES
eviction, arrears of rent and damages was
instituted. During the pendency of the
suit, an application under Order XV Rule
5 C.P.C. was filed with the allegation that
the suit is of 1999 but no amount was
deposited on the first date of hearing nor
regular deposit was made, thereafter. The
applicant contested stating that the entire
amount was deposited on the first date of
hearing. The trial court allowed the
application, struck off the defence of the
applicant. The revisional court affirmed
the order passed by the trial court.
5.
The learned counsel for the
applicant would submit that the courts below
have failed to record the first date of hearing,
written statement was filed on 13 October
2008 and on the said date a sum of Rs.
4000/- was deposited which included the rent
from January 1996 to September 2008,
interest and expenses, further, it is sought to
be urged that even presuming that there was
some delay in depositing the subsequent
sums, even then the application under Order
XV Rule 5 could not have been allowed,
admittedly the respondent-landlord received
the entire sum. It is, therefore, submitted that
the purpose of Order XV Rule 5 is to ensure
the payment of the rent and not being a penal
provision to punish the defendant.
6.
Learned counsel appearing for the
respondents, in rebuttal would not dispute
that the entire sum was deposited but would
submit that the deposit was inadequate and
irregular, therefore, courts below were
justified in allowing the application.
7. Rival submission fall for
consideration.
8. The Supreme Court in Bimal
Chand Jain Versus Sri Gopal Agarwal1,
on considering the provisions of Order
XV Rule 5, as applicable to U.P.,
observed that the 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, whether or not he admits
any amount to be due. 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.
9.
Sub-rule (1) obliges the court to
strike off the defence which is in the nature
of a penalty. A serious responsibility,
therefore, rests on the court in the matter,
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.
10. 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. If on the facts
and circumstances already existing on the
record it finds good reason for not doing
so, the court is not obliged to strike off the
defence, merely in the absence of such
representation under sub-section(2).
11. This Court in Shiv Balak Singh
Versus A.D.J., XI, Lucknow2, held that
the provision of Order XV Rule 5 is
discretionary.
"7. Even though technically at the
time of arguments also, plea of Order XV,
Rule 5, C.P.C. could be raised, however
3 All] Kedar Nath Vs. Waqf Sheikh Abdullah Charitable Madursa, Allahabad & Ors.
1309
in normal course such an application
should have been filed (and is normally
filed) before the start of the evidence."
12. In Pramod Mehrotra and others
Versus Ram Shankar Chaurasia and
others3 where the amount was deposited
with some delay, this Court relying upon
Bimal Chand Jain (supra), held that
discretion should be exercised not to
strike off the defence where the entire
amount has been paid with some delay.
13.
Again in Sudhir Kumar Gupta
Versus Dr. S.K. Raj and another4, the
Court observed that the purpose of
enacting the provision Rule 5 Order XV
was not to give a lever to the landlord to
get a tenant punished for insignificant
lapses. The purpose was merely to ensure
that the dues of the landlord are properly
secured and he can get his rent regularly
even though the litigation may continue.
14. In Pyare Lal Versus Distrit
Judge, Lucknow and others5 wherein, the
Court allowed the deposit of rent upon
imposing cost.
15. In Dr. Ram Prakash Mishra Versus
Additional District Judge, Etah and another6,
it was observed that the question whether the
deposit is valid or not is relevant for
determining the question whether the tenant
could be held to be defaulter or not in the eye
of law, but so far as Order XV, Rule 5 C.P.C.
is concerned, the only requirement is that the
tenant has to deposit the entire amount on or
before the first hearing of the suit. If the
deposit has been made under section 30 of
Act 13 of 1972 then it will ensure to the
benefit of the tenant.
16. The provisions of Order XV
Rule 5 is discretionary, the court is not
bound to strike off the defence in every
case of mere technical or bonafide
default. The provision should not be
interpreted in such a way that the tenant
should be trapped to be evicted. (ReferVinod Chandra Kala Versus Premier
Precisions
Tools
Manufacturing
(P).
Ltd.7; Bhawani Vastrya Bhandan Versus
Smt. Sahodra Devi8).
17.
Sri Anand Mohan Lal, learned
counsel
for
the
respondent,
placed
reliance upon the decision rendered by the
Supreme
Court
in
Yusufbhai
Noormohammed
Jodhpurwala
Versus
Mohamed Sabir Ibrahim Byavarwala9,
wherein,
it
is
contended
that
the
provisions of Order XV Rule 5 is
mandatory, any default, consequence
would follow. The facts of the case are
not applicable in the present case as
therein the Court was dealing with the
provisions of Section 12(3)(b) of the
Bombay Rent Act. Similarly, in Saroj
Tripathi (Smt.) and another Versus Guru
Prasad and others10, the facts are entirely
different, the scope of Order XV Rule V
was not considered. In Mohd. Sayeed and
others Versus Shahanshah Alam (Sri and
another11, the facts of the case is
distinguishable.
18. In the facts and circumstances of
this case, the court below have not
recorded a finding regarding the date of
hearing of the suit and proceeded to strike
off the defence taking into account the
intermittent delay in depositing the
subsequent sums by the applicant. It is not
disputed by learned counsel for the
respondent that the entire sum due has
already
been
deposited.
In
these
circumstances, I am of the view that the
impugned orders cannot be sustained,
accordingly, the petition is allowed.
1310
 INDIAN LAW REPORTS ALLAHABAD SERIES
19. The impugned orders are set
aside.
20. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.11.2015
BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.
THE HON'BLE D.K. UPADHYAYA, J.
W.P. No. 8210 (M/B) of 2015
'A' through her Father "F" ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Mohsin Iqbal
Counsel for the Respondents:
C.S.C.
(A) Guardian & Wards Act 1956, Section21-Hindu Adoption & Maintenance Act
1956-Section
9-A-minor
girl-adoptionminor girl subjected to rape-considering
scope of rehabilitation of new born issuewhether such minor mother capable to
give her newly born illegitimate issue ?
held-'yes'.
Held: Para-67 & 68
67. Thus the minor mother is competent
to act as guardian of her child. She has
the capacity to give the child in adoption.
68. In the present case the petitioner by
means of the affidavits expressed her
willingness that the child may be given
in adoption and neither she nor her
parents are ready to take care of the
child for the reasons disclosed in the
affidavits.
(B)The
Juvenile
Justice
(Care
&
Protection of Children) Act 2000-Section
41(1)-newly born child-consideration of
welfare and rehabilitation of -guide lines
framed-to be followed strictly- 10th point
program given.
Held: Para-98
(1)We direct and allow the Child Welfare
Committee of District Lucknow to take over
the cause of adoption of the child born to
"A" on 26th October, 2015, who is presently
in the care of Paediatrics Department of
King George's Medical University, Lucknow.
The Department shall handover the child as
and when the doctors find that the child is
medically fit to be handed over to the
committee. The committee shall, thereafter,
act in the manner provided in the judgment.
The Member Secretary of the State Legal
Services Authority in consultation with the
amicus curiae shall supervise the process of
adoption.
(2)As soon as "A" regains her mental
balance and equilibrium, she will be allowed
admission
in
a
proper
class
in
an
appropriate school. The first and foremost
preference should be given to any Kasturba
Gandhi Girls' School. These are residential
schools in which girls are allowed to stay
and taken care of completely. They are
given food, shelter, books, uniforms and
matterial for recreation also. If "A" or her
parents
approach
the
authorities
of
Kasturba Gandhi Residential School of her
choice, admission should be allowed to her.
If an application is made to the Basic
Shiksha Adhikari of the District it shall be
his duty to ensure admission of "A" in one
of the best run schools of Kasturba Gandhi
Residential Schools of the District.
(3)If "A" chooses not to go to residential
school then a Government Girls' Inter
College of her choice will allow her
admission
without
insisting
on
any
entrance examination or the criteria of
selection on merit basis. The State
Government
should
ensure
that
education is provided free of costs to
"A". She will be allowed full freeship of
fees and other charges whatsoever.
(4)It shall be the duty of the Principal of
the college concerned to ensure that the