# Maseehamasi Farookhi v. Jainul Islaam @ Gop & Ors

- **Citation:** (2019) 2 ILRA 1163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-26
- **Case number:** Rent Control No. 3685 of 2019
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/maseehamasi-farookhi-v-jainul-islaam-gop-ors-44572
- **Pages:** 11

## Headnote

Letting, Rent and Eviction) Act. 1972-
SCC Suit for arrears of rent, damages
and ejectment of tenant- SCC Revision
under Section 25 of the Provincial Small
Cause Courts Act, 1887 - application
under Order 15 Rule 5 CPC - striking off
defence on failure to deposit admitted
rent etc. (Para 3,4 ,7 & 23)

Held:- The power to strike off defence is
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
discretionary at the instance of court concerned
and that it is not mandatory for the court to
automatically allow the application for striking off
defence - mere failure to pay rent on part of
tenant is not enough to justify an order striking
off defence and it is only a wilful failure or
deliberate default that can call for exercise of the
extra ordinary power vested in court. The
defence has been struck off - default in deposit
of admitted amount of rent as contemplated
under second part of Order 15 Rule 5 C.P.C. was
continuous - explanation of illness given by
tenant-opposite party without adequate evidence
to corroborate the same would definitely fall
within the meaning of wilful default. The
revisional court without interfering with the
findings of fact recorded by the trial court erred
in law in setting aside the order of trial court for
striking off defence. (Para 33 ,34, 35)

Writ Petition allowed (E-7)

List of Cases Cited: -

## Text

2 All. Maseehamasi Farookhi Vs Jainul Islaam @ Gop & Ors.
1163
Tribunal is given such wide powers to
direct registration of Trust in all or any
circumstances,
it
would
render
the
provisions of Section 12(AA) otiose,
which again can not be the intention of
legislature.

31. In view of the above the answer
to questions referred are answered as
under:-

(i) The income tax Appellate
Tribunal while hearing an Appeal under
Section 254(1) in a matter where
registration under Section 12(AA) has
been denied by Commissioner income tax
can
itself
pass
an
order
directing
commissioner to grant registration in case
the
income
tax
Appellate
Tribunal
disagrees with the satisfaction of the
Commissioner on the basis of material
already
on
record
before
the
Commissioner.

However the said power is not to
be exercised as a matter of course and that
remand to the Commissioner income tax is to
be made where the income tax Appellate
Tribunal records a divergent view on the basis
of material which has been filed before the
Appellate Tribunal for the first time.

Remand for determination of
question regarding grant of registration to
a Trust would also be necessitated in
cases where the registration application
has been rejected by the Commissioner
income tax on technical grounds without
recording his satisfaction as contemplated
under Section 12 (AA) of the Act, 1961
and such decision is overturned by the
income tax Appellate Tribunal.

(ii) The power of the Appellate
Tribunal are co-extensive with the power
of the Commissioner under Section 12
(AA) of the Act, 1961 subject to what has
been indicated herein above. However
order for registration can be issued only
after recording satisfaction with regard to
genuineness of activities of the Trust as
provided under Section 12 (AA) of the
Act, 1961.

32. In view of the aforesaid the
reference is answered.

33. The Registry is directed to place
Appeals before the appropriate court
dealing with the matter.
----------

(2019)10ILR A 1163

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.09.2019

BEFORE

THE HON'BLE MANISH MATHUR, J.

Rent Control No. 3685 of 2019

Maseehamasi Farookhi ...Petitioner
Versus
Jainul Islaam @ Gop & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ravi Nath Tilhari

Counsel for the Respondents:
Sri Ishwar Dutt Shukla, Sri Priyam
Mehrotra, Sri Santosh Kumar Mehrotra

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act. 1972-
SCC Suit for arrears of rent, damages
and ejectment of tenant- SCC Revision
under Section 25 of the Provincial Small
Cause Courts Act, 1887 - application
under Order 15 Rule 5 CPC - striking off
defence on failure to deposit admitted
rent etc. (Para 3,4 ,7 & 23)

Held:- The power to strike off defence is
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
discretionary at the instance of court concerned
and that it is not mandatory for the court to
automatically allow the application for striking off
defence - mere failure to pay rent on part of
tenant is not enough to justify an order striking
off defence and it is only a wilful failure or
deliberate default that can call for exercise of the
extra ordinary power vested in court. The
defence has been struck off - default in deposit
of admitted amount of rent as contemplated
under second part of Order 15 Rule 5 C.P.C. was
continuous - explanation of illness given by
tenant-opposite party without adequate evidence
to corroborate the same would definitely fall
within the meaning of wilful default. The
revisional court without interfering with the
findings of fact recorded by the trial court erred
in law in setting aside the order of trial court for
striking off defence. (Para 33 ,34, 35)

Writ Petition allowed (E-7)

List of Cases Cited: -

1. Bal Gopal Maheshwari & ors. Vs Sanjeev
Kumar Gupta (2013) 8 SCC 719

2. Trilok Singh Chauhan Vs Ram Lal (Dead)
through LRs & ors. (2018) 2 SCC 566

3. Bimal Chand Jain Vs Gopal Agarwa (1981) 3
SCC 486

4. Haider Abbas Vs Addl. Distt. Judge (Court
No.3) Ald. & ors. (2006) 1 ARC 341

5. Shailendra Sharma & anr. Vs Amit Bansal
(Dr.) (2017) 5 ADJ 239

6. Shailendra Sharma & Vs Dr.amit Bansal
(2017) 35 LCD 1521

7. Rajendra Kumar Verma & anr. Vs Padma
Jindal & anr. (2006) 1 ARC 764

8. Shiv Balak Singh Vs Addl. Distt. Judge XI
Lko. 2014 (2) ARC 552

9. Dina Nath (D) by LRs & anr. Vs Subhash
Chand Saini & ors. Civil Appeal No.4563 of
2014

10. Santosh Mehta Vs Om Prakash (1980) 3 SCC 610
11. Atma Ram Vs Shakuntala Rani (2005) 7
SCC 211
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Sri Ravi Nath Tilhari,
learned counsel for the petitioner and Sri
S.K.Mehrotra, learned counsel assisted by
Ms.Priyam Mehrotra, learned counsel
appearing on behalf of opposite party
no.1. Opposite party no.2, Additional
District Judge being merely a proforma
opposite party is not represented.

2. Under challenge is the order dated
30.08.2018 passed by III Additional Sessions
Judge, Unnao in SCC Revision No.04/2018
(Jainul Islaam @ Gop v. Maseehamasi
Farookhi) whereby revision filed against
order dated 17.05.2018 striking off defence
of tenant-opposite party on application of
petitioner-landlord has been allowed.

3. As per averments made in this
petition filed under Article 227 of the
Constitution of India, petitioner-landlord
filed SCC Suit No.8/2009 for arrears of
rent, damages and ejectment of tenantopposite party with respect to three shops
numbered 369, 370, 371 situate in
Mohalla Taki Nagar, opposite Central
Bank,
Pargana,
Tahsil
and
District
Unnnao. It has been stated that tenancy of
the shops in question was at the rate of
Rs.700/- per month for each shop apart
from water tax. The landlord was
compelled to file suit when monthly rent
with effect from June 2008 till April 2009
was not paid by tenant. The tenancy was
determined by registered notice dated
27.04.2009 in which arrears of rent and
water tax was also demanded along with
vacation of the shops in question.
However, despite aforesaid notice when
arrears of rent were not paid, petitionerlandlord was compelled to file the suit.
2 All. Maseehamasi Farookhi Vs Jainul Islaam @ Gop & Ors.
1165

4. Tenant-opposite party having put
in appearance in suit proceedings, filed
his written statement on 07.05.2010
admitting tenancy but denying the rate of
rent at the rate of Rs.700/- per shop for
any period prior to April 2007 although
admitting aforesaid rate of rent with effect
from April 2007. Liability for payment of
water tax was also denied.

5. Subsequently, the SCC Suit was
dismissed in default of appearance on
30.08.2011 and was restored to its
original number only on 25.09.2014
whereafter tenant-opposite party filed
application
dated
23.01.2015
(Paper
No.56-Ga) to deposit rent with effect
from August 2011 till January 2015
amounting
to
Rs.88,200/-.
Another
application (Paper No.61-Ga) was filed to
deposit rent for the months of February
2015 till April, 2015 including water tax
and interest at the rate of 9% per annum
amounting to Rs.5040/-.

6. Aforesaid applications were
allowed by means of order dated
23.08.2017 permitting tenant to deposit
rent/arrears of rent/water tax and interest
at his own risk.

7. However, it has been stated that
despite said order, tenant did not comply
with the same and no such deposit as
envisaged in the order was made by
tenant. Owing to the said fact, petitionerlandlord
filed
application
dated
1.5.2017(Paper No.C-70) under Order 15
Rule 5 CPC seeking the striking off
defence of tenant-opposite party for
failing to comply with the provisions.
Petitioner-landlord
filed
another
application on 30.10.2017 (Paper No.C86) stating that tenant had not deposited
rent with effect from April 2011 and that
an amount of more than Rs.2,00,000/-
towards
rent
and
water
tax
was
outstanding. A prayer for striking off
defence as per the earlier application was
also made.

8. Pursuant to aforesaid applications
by petitioner-landlord, tenant opposite
party filed another application dated
16.12.2017 (Paper No.91-Ga) stating that
the due amount could not be deposited
owing
to
ill-health
of
tenant
and
permission
was
sought
to
deposit
Rs.50,000/- out of due amount, with
assurance that rest amount would be
deposited at the earliest. The application
was thereafter allowed vide order dated
16.12.2017
permitting
tenant-opposite
party to deposit the amount at his own
risk. It has been stated that even
thereafter, deposit as permitted was not
made.

9. Subsequently vide order dated
17.05.2018, application (no.C-70) was
allowed striking off defence of tenantopposite
party
against
which
SCC
Revision No.4 of 2018 was filed and has
been allowed vide impugned order dated
30.08.2018 resulting in the filing of the
present petition under Article 227 of the
Constitution of India.

10. Learned counsel appearing on
behalf
of
petitioner-landlord
has
submitted that a bare perusal of order
dated 17.05.2018 will make it clear that
the circumstances indicated in said order
left the court with no other option but to
strike off defence of tenant-opposite party
particularly in view of the fact that twice
applications for deposit of rent were
allowed by the SCC Court, firstly on
23.08.2017
and
subsequently
on
16.12.2017 but despite said permission
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
being granted by court, no deposit was
made by tenant which would definitely
come within the meaning of the term
'willful default'. It has been submitted that
the learned revisional Court had no
occasion to disturb the order dated
17.05.2018, particularly when no different
opinion has been expressed by revisional
court for differing with reasons indicated
by the SCC Court. It has been submitted
the finding recorded by revisional court
that tenant/opposite party has deposited
rent on various occasions is not based on
any cogent evidence on record and is also
completely against the finding recorded
by the SCC Court to the effect that no
deposit was made by tenant-opposite
party despite orders thereto.

11. The learned counsel has relied
upon the decision of Hon'ble the Supreme
Court in Bal Gopal Maheshwari and
others v. Sanjeev Kumar Gupta reported
in (2013) 8 SCC 719 regarding the scope of
powers of this Court under Article 227 of
the Constitution of India. He has further
relied on the judgment rendered by Hon'ble
the Supreme Court in Trilok Singh
Chauhan v. Ram Lal (Dead) through
LRs and others reported in (2018) 2 SCC
566. Reliance has also been placed on the
judgment in Bimal Chand Jain v. Gopal
Agarwal reported in (1981) 3 SCC 486;
Haider Abbas v. Additional District
Judge (Court No.3), Allahabad and ors
reported in 2006(1) ARC 341 as well as
decision of this Court in Shailendra
Sharma and another v. Amit Bansal (Dr.)
reported in 2017 (5) ADJ 239 with regard to
striking off defence and the provisions of
Order 15 Rule 5 C.P.C. as applicable in the
State of U.P.

12. Learned counsel appearing on
behalf of tenant-opposite party has
rebutted arguments advanced by learned
counsel for the petitioner with the
submission that arrears of rent along with
interest etc. had been deposited by tenantopposite party on the first date of hearing
which was prior to its dismissal in default
of appearance in the year 2011. It has
been submitted that the suit itself was
dismissed in default of appearance on
30.08.2011 and was subsequently restored
only after three years on 25.09.2014. As
such, there was no occasion for tenantopposite party to make any deposit within
aforesaid three years. It has been
submitted that subsequently as soon as the
suit was restored, tenant-opposite party
himself filed application dated 23.1.2015
seeking to deposit rent for the period
August 2011 till January 2015. Another
application for deposit of rent for the
period of February 2015 till April 2015
was also made by tenant-opposite party at
his own instance. The said applications
were allowed vide orders dated 23.08.2017
but could not be complied with owing to
illness of tenant-opposite party. It was in
such extenuating circumstance that deposit
of rent could not be made which has,
rightly been condoned by the revisional
court. Learned counsel for the opposite
parties has relied upon the judgments
rendered in Shailendra Sharma and
another v. Dr. Amit Bansal, reported in
2017(35) LCD 1521; Rajendra Kumar
Verma and another v. Padma Jindal
and another, reported in 2006 (1) ARC
764; Shiv Balak Singh v. Additional
District Judge XI, Lucknow reported in
2014 (2) ARC 552, Dina Nath (D) by LRs
& another v. Subhash Chand Saini &
others, rendered by Hon'ble the Supreme
Court in Civil Appeal No.4563 of 2014 as
well as Santosh Mehta v. Om Prakash
reported in (1980) 3 SCC 610 regarding
striking off defence.
2 All. Maseehamasi Farookhi Vs Jainul Islaam @ Gop & Ors.
1167

13. Heard learned counsel for the
parties and perused the record.

14. It is admitted between the parties
that the dispute in question pertains only
to the second part of Order 15 Rule 5
C.P.C. pertaining to continuous regular
deposits being made during pendency of
suit proceedings and that deposits made
on first date of hearing as provided in the
first part under Order 15 Rule 5 C.P.C.
are not in question.

15. Regarding the same, it is seen
that the suit was filed in 2009 in which
written statement was filed on 07.05.2010
but suit having been dismissed in default
of
appearance
on
30.08.2011
was
thereafter restored to its original number
only on 25.09.2014 whereafter tenantopposite party filed application dated
23.01.2015 for deposit of rent from
August 2011 to January 2015 and by a
separate application for deposit of rent
from February 2015 till March 2015.
Despite opposition by petitioner-landlord,
said applications were allowed vide order
dated
23.08.2017
permitting
tenantopposite party to make the deposit at his
own
risk.
Subsequently
another
application for deposit of rent was filed
after filing of application under Order 15
Rule 5 C.P.C. on 01.05.2017. The said
application was also allowed vide order
dated 16.12.2017. Thereafter defence had
been
struck
off
vide
order
dated
17.05.2018
specifically
recording
aforesaid facts and particularly indicating
that despite permission granted for
deposit
of
rent
vide
orders
dated
23.08.2017 and 16.12.2017, no deposit as
prayed for and directed was made by
tenant-opposite party. The SCC Court on
the basis of aforesaid facts came to the
conclusion that default in deposit of rent
by tenant-opposite party was willful,
necessitating striking off defence under
Order 15 Rule 5 of C.P.C.

16. The revisional court vide the
impugned order has upset the order of
SCC Court permitting tenant-opposite
party to make deposits within a period of
one month. It is to be seen that the order
of revisional court is conditional and that
in the event of tenant-opposite party not
making deposit as indicated by the
revisional court, the revision was directed
to be considered dismissed.

17. It has been submitted by learned
counsel for tenant-opposite party that in
pursuance of directions of the revisional
court, deposit was made as directed.

18. For proper appreciation of
dispute in question, it would be necessary
to refer to provisions of Order 15 Rule 5
C.P.C. as applicable in the State of Uttar
Pradesh, which are quoted hereunder :

"Order XV : Disposal of the
Suit at the first hearing :

1...........

2..........

3...........

4...........

5. Striking off defence on
failure to deposit admitted rent etc.--

(1) In any suit by a lessor for the
eviction of a lessee after the determination
of his lease and for the recovery from him
of rent or compensation for use and
occupation, the defendant shall, at or
before the first hearing of the suit, deposit
the entire amount admitted by him to be
due together with interest thereon at the
rate of nine per centum per annum and
whether or not he admits any amount to
be
due,
he
shall
throughout
the
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
continuation of the suit regularly deposit
the monthly amount due within a week
from the date of its accrual, and in the
event of any default in making the deposit
of the entire amount admitted by him to
be due or the monthly amount due as
aforesaid, the court may subject to the
provisions of sub-rule (2), strike off his
defence.

Explanation 1.--

The
expression
'first
hearing' means the date for filing written
statement or for hearing mentioned in the
summons or where more than one of such
dates are mentioned, the last of the dates
mentioned.

Explanation 2.--

The
expression
'entire
amount admitted by him to be due' means
the entire gross amount, whether as rent
or compensation for use and occupation,
calculated at the admitted rate of rent for
the admitted period of arrears after
making no other deduction except the
taxes, if any' paid to a local authority in
respect of the building on lessor's account
and the amount, if any, deposited in any
court under section 30 of the U. P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act. 1972.

Explanation 3.--

The expression 'monthly
amount due' means the amount due every
month, whether as rent or compensation
for use and occupation at the admitted
rate of rent, after making no other
deductions except the taxes, if any, paid
to a local authority in respect of the
building on lessor's account.

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

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

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

Provided further that if the
amount deposited includes any sums
claimed by the depositor to be deductible
on any account, the court may require the
plaintiff to furnish security for such sum
before he is allowed to withdraw the
same."

19. A perusal of order dated
17.05.2018 striking off defence indicates
that the trial court exercised its discretion
to do the same in view of the fact that
deposit of rent etc. had been permitted to
be made by tenant twice vide orders dated
23.08.2017
and
16.12.2017
on
the
applications preferred by tenant himself
but when compliance of neither of the
orders was made, defence was struck off
holding that such default is willful on the
part of tenant.

20. Perusal of impugned order dated
30.08.2018 passed by the revisional court
however indicates that findings recorded
by trial court pertaining to willful default
on the part of tenant has not been
interfered with. The only ground on
which tenant opposite party was granted
indulgence was after appreciating his
submission with regard to illness and the
fact that there was no occasion for tenantopposite party to have made any deposit
towards rent from August 2011 till
September 2014 due to the suit having
been dismissed in default of appearance.
2 All. Maseehamasi Farookhi Vs Jainul Islaam @ Gop & Ors.
1169
It was in these circumstances that the
order of trial court was interfered with
and tenant-opposite party was granted an
opportunity
to
deposit
rent
which
admittedly has been done in pursuance of
such directions.

21. The decision in Bal Gopal
Maheshwari(supra)
relied
upon
by
learned counsel for the petitioner noticing
the provisions of Order XV Rule 5 C.P.C.
as applicable in the State of Uttar Pradesh
and judgment of Hon'ble the Supreme
Court in Bimal Chand Jain(supra) has
held that the discretion exercisable by trial
court with regard to striking off defence is
not compulsory and is in the realm of
discretion to be exercised by the trial
court upon consideration of facts and
circumstances of the case. It has been held
that interference with regard to the power
to strike off written statement can be
exercised only in case it was perverse or
the court below has exceeded or failed to
exercise the jurisdiction. Shailendra
Sharma(supra) also relies upon judgment
of Hon'ble the Supreme Court rendered in
Bimal Chand Jain(supra) which has held
as follows:-

"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 subrule (2), the defence should or should not
be struck off. The word "may" in sub-rule
(1) merely vested power in the court to
strike off the defence. It does not oblige it
to do so in every case of default."

22. Thus it can be seen that power to
strike off defence is not to be exercised by
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
treating it to be a statutory mandate. Since
exercise of such power inflicts severe
penal
consequences,
the
court
has
discretion not to strike off defence if on
facts it finds good reason for not doing so.
Therefore, the power should be exercised
after consideration of the facts and
circumstances appearing on the record
and, in the event of there being a
representation,
after
considering
the
representation.

23. Once the court concerned has
exercised its discretion regarding striking off
defence, an aggrieved party has remedy of
filing revision under Section 25 of the
Provincial Small Cause Courts Act, 1887 but
the revisional court has very limited power to
interfere with the discretion so exercised by
court concerned. Such limited grounds for
interference have already been explained by
Hon'ble the Supreme Court in Trilok Singh
Chauhan(supra). In the said decision, it has
been held that interference in exercise of
jurisdiction under Section 25 of the said Act
can be only when the findings are perverse,
based on no material, upon taking into
consideration the inadmissible evidences or
without consideration of relevant evidence.
The relevant paragraph of the said judgment is
quoted as follows:

"25. There are very limited
grounds
on
which
there
can
be
interference in exercise of jurisdiction
Under Section 25; they are, when (i)
Findings are perverse or (ii) based on no
material or (iii) Findings have been
arrived at upon taking into consideration
the
inadmissible
evidences
or
(iv)
Findings have been arrived at without
consideration of relevant evidences."

24. Upon application of aforesaid
judgments, it is clear that the trial court
has absolute discretion to pass appropriate
orders regarding striking off defence upon
an application so made by the landlord.
The discretion once exercised can be
interfered with by the revisional authority
only on limited grounds. In the present
case, it can be seen that the revisional
court has not at all interfered with the
findings of fact recorded by the trial court.
None of the grounds indicated by Hon'ble
the Supreme Court in Trilok Singh
Chauhan(supra) has been followed by
revisional
court
while
passing
the
impugned order. As such it can be said
that the impugned order has been passed
against the principles enunciated by
Hon'ble the Supreme Court.

25. Another aspect to be considered is
whether the discretion exercised by the trial
court in striking off defence has been
exercised judicially upon consideration of
material facts or not. The trial court judgment
clearly indicates that tenant-opposite party
has committed wilful default in adhering to
the second part of Order 15 Rule 5 C.P.C.
particularly since tenant-opposite party was
twice given opportunity to make deposit of
the admitted amount of dues but the said
benefit was not availed of and deposit as
required to be made in terms of the order of
trial court was not made. It was in these
circumstances that the trial court held default
on part of tenant-opposite party to be wilful,
thereby striking off defence.

26. Hon'ble the Supreme Court in
Atma Ram v. Shakuntala Rani reported
in 2005 (7) SCC 211 has held that in Rent
Control legislation, if tenant wishes to
take advantage of beneficial provisions of
the Act, he must strictly comply with the
requirements
indicated
therein.
The
relevant paragraph of the said decision is
as follows:
2 All. Maseehamasi Farookhi Vs Jainul Islaam @ Gop & Ors.
1171

"19. It will thus appear that this
Court has consistently taken the view that
in the Rent Control legislations if the
tenant wishes to take advantage of the
beneficial provisions of the Act, he must
strictly comply with the requirements of
the Act. If any condition precedent is to
be fulfilled before the benefit can be
claimed, he must strictly comply with that
condition. If he fails to do so he cannot
take advantage of the benefit conferred by
such a provision."

27. The aforementioned position
was reiterated by a Division Bench of this
Court in Haider Abbas(supra), which
reads as follows:-

"23. The aforesaid decision of
the Supreme Court in the case of Atma
Ram, (supra)emphasizes that if the tenant
wishes to take advantage of the beneficial
provisions of the Rent Control Act, he
must
strictly
comply
with
the
requirements
and
if
any
condition
precedent is required to be fulfilled before
the benefit can be claimed, the tenant
must strictly comply with that condition
failing which he cannot take advantage of
the benefit conferred by such a provision.
It has further been emphasised that the
rent must be deposited in the Court where
it is required to be deposited under the
Act and if it is deposited somewhere else,
it shall not be treated as a valid
payment/tender
of
the
rent
and
consequently the tenant must be held to
be in default."

"24. In view of the aforesaid
principles of law enunciated by the
Supreme Court in the aforesaid case of
Atma Ram, (supra), it has to be held that
the
tenant
must
comply
with
the
requirements of Order XV, Rule 5, C.P.C.
and
make
the
deposits
strictly
in
accordance with the procedure contained
therein. A deposit which is not made in
consonance with the aforesaid Rule
cannot enure to the benefit of the tenant
and,therefore, only that amount can be
deducted from the "monthly amount"
required to be deposited by the tenant
during the pendency of the suit which is
specifically mentioned in Explanation 3 to
Rule 5(1) of Order XV, C.P.C."

"25. It, therefore, follows that
the amount due to be deposited by the
tenant through out the continuation of the
suit has to be deposited in the Court
where the suit is filed otherwise the Court
may strike off the defence of the tenant
since the deposits made by the tenant
under section 30(1) of the Act after the
first hearing of the suit cannot be taken
into consideration."

28. The aforesaid view with regard
to tenant being obliged to strictly comply
with requirements of the Act in order to
avail advantage of beneficial provisions
has been reiterated by this Court in a
number of judgments following the
aforesaid judgments of Hon'ble the
Supreme Court and this Court.

29. In the present case, it is quite
clear that tenant opposite party failed to
make compliance of provisions of Order
15 Rule 5 C.P.C. despite adequate
opportunity being provided for the same
by the trial court.

30. Upon application of the
judgments indicated hereinabove, it is
quite clear that tenant-opposite party was
a wilful defaulter and deliberately failed
to comply with the provisions of Order 15
Rule 5 C.P.C. due to which his defence
was correctly struck off by the trial court
and that the order passed by the revisional
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
court,
being
against
the
judgments
rendered by Hon'ble the Supreme Court
regarding powers and jurisdiction of
interference, is also vitiated.

31. So far as judgments relied upon
by learned counsel for tenant-opposite
party
are
concerned,
the
case
of
Shailendra Sharma and another v. Dr.
Amit Bansal(supra) has followed the
dictum of Hon'ble the Supreme Court in
Bimal Chand Jain(supra) in which it has
been held that the power to strike off
defence
is
not
mandatory
but
discretionary at the instance of court
concerned. To the same effect is another
judgment relied upon by learned counsel
for tenant-opposite party in Santosh
Mehta v. Om Prakash(supra).

32. There is no dispute regarding
proposition that power exercisable under
Order 15 Rule 5 C.P.C. is not mandatory
but discretionary at the instance of court
concerned. In the instant case, the trial
court has clearly recorded a finding that
tenant-opposite party is a wilful defaulter
since it failed to comply with provisions
of Order 15 Rule 5 C.P.C. not once but
twice upon applications filed by tenant
opposite
party
itself.
As
such
its
discretion was exercised in the facts and
circumstances of the case which would
clearly be in accordance with the dictum
of Hon'ble the Supreme Court.

33. Learned counsel appearing for
tenant-opposite party has also relied upon
the judgment of Hon'ble the Supreme
Court in Dina Nath (D) by LRs &
another v. Subhash Chand Saini &
others, (supra) in which again it has been
held that the power to strike off defence is
discretionary at the instance of court
concerned and that it is not mandatory for
the court to automatically allow the
application for striking off defence. It has
also been held that mere failure to pay
rent on part of tenant is not enough to
justify an order striking off defence and it
is only a wilful failure or deliberate
default that can call for exercise of the
extra ordinary power vested in court.

34. In the present case the trial court
has clearly recorded a finding of fact that
there was wilful and deliberate default on
part of tenant-opposite party in complying
with the provisions of Order 15 Rule 5
C.P.C. thereby requiring it to exercise its
discretion of striking off defence. The
aforesaid judgments also therefore would
not be of any help to learned counsel for
tenant-opposite party.

35. In the present case, it can be
seen that tenant-opposite party was
allowed to make deposit of admitted
amount of rent firstly in August 2017 and
thereafter in December 2017. The defence
has been struck off subsequently in May,
2018. As such it can be seen that the
default in deposit of admitted amount of
rent as contemplated under second part of
Order 15 Rule 5 C.P.C. was continuous
and, therefore, the explanation of illness
given by tenant-opposite party without
adequate evidence to corroborate the
same would definitely fall within the
meaning of wilful default. The revisional
court without interfering with the findings
of fact recorded by the trial court erred in
law in setting aside the order of trial court
for striking off defence without adhering
to the principles enunciated by Hon'ble
the Supreme Court regarding exercise of
revisional power.

36. In view of the aforesaid, the
petition is allowed setting aside the
2 All. Rajendra Kumar Vs State of U.P. & Ors.
1173
judgment and order dated 30.08.2018
passed in SCC Revision No.04/2018
(Jainul Islaam @ Gop v. Maseehamasi
Farookhi).
----------

(2019)10ILR A 1173

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.09.2019

BEFORE

THE HON'BLE RAJAN ROY, J.

Misc. Single No. 18761 of 2016

Rajendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Apoorva Tewari, Sri Prakhar Misra

Counsel for the Respondents:
C.S.C., Aprajita Bansal, Sri Prashant
Kumar

A. U.P. Panchayat Raj Act, 1947 -
Sections -11E, 95(1)(g), 5A & 6A-
Constitution of India - Article 243 (O) -
the case of petitioner is of disqualification
u/s.11-E - barring him from contesting the
election to the office of Gram Pradhan as- on
the
date
of
filing
nomination
he
was
functioning as an elected member of Kshetra
Panchayat-this
defect
dis-entitled
the
petitioner to contest the election and to hold
the office in question-renders the holding of
office of Gram Pradhan by the petitioner void
ab-initio.

Held : - any interference by this Court would
restore and perpetuate an illegality and would
encourage others to violate the law contained
in Section 11-E in the belief that they would
get away with it- For these reasons this Court
declines to exercise its equitable, discretionary
and extra ordinary jurisdiction under Article
226 of the Constitution of India in the facts
and circumstances of the case and does not
interfere
with
the
impugned
order, as,
substantial justice has been done in the
matter. Consequently, the petitioner shall not
be entitled to continue as Gram Pradhan of
Gram Panchayat Barauli. Interim order granted
earlier stands vacated.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. Smt. Ram Kanti vs. District Magistrate,
Hamirpur and others (1995) 2 UPLBEC 771

2. Sunita Patel vs. State of U.P. & others 2006
(1) ALJ 417 (DB)

3. K. Venkatachalam vs. A. Swamickan and
another (1999) 4 SCC 526

4. Karnek Singh vs. Charanjit Singh (2005) 8 SCC 383

5. Godde Venkateswara Rao vs Government Of
Andhra Pradesh AIR 1996 SC 828

6. M. C. Mehta v. Union of India and others
(1999) 6 SCC 237

7. Mohd. Shwale vs. III ADJ (1988) 1 SCC 40

8. Om Prakash vs. U.P. Secondary Education
Service Commission Allenganj Allahabad and
others (1990) 2 UPLBEC 983

9. State of Maharashtra and others vs. Prabhu
(1994) 2 SCC 481

10. A.M. Allison and another vs. B.L. Sen and
others AIR 1957 SC 227

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri Apoorva Tewari learned
counsel for the petitioner, Ms Aparita Bansal for
the State Election Commission and Sri Anuj
Garg learned standing counsel.

2. This writ petition has been filed
under Article 226 of the Constitution of