# Sanjeev Kumar Sibbal Revisionist v. Pramod Kumar Tiwari

- **Citation:** (2021) 2 ILRA 131
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-08
- **Case number:** S.C.C. Revision No. 5 of 2020
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-sibbal-revisionist-v-pramod-kumar-tiwari-46724
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401/397 -
Provincial Small Causes Court Act,
1887-Section 25-application-arrears of
rent
and
ejectment-revisionist
had
entered into agreement for tenancy of
a shop-notice were issued for written
statement
and
disposal-
revisionist
filed an application for permission to
deposit the due rent-but the trial court
not permitted and application under
Order 15, Rule 5 CPC. Rejected on the
ground that the revisionist had not
deposited the interest of 9% while
depositing the rent-defendant failed to
present a written statement of defence
within
30
days,
application
under
Order 8 Rule 1 CPC also allowed-it was
filed beyond 90 days, the maximum
period
provided
for
filing
written
statement-provision made in Order 8
Rule 1 are directory in nature and
period may be extended by the court in
case sufficient reason is shown in
writing-impugned
order
set
aside
giving an opportunity to the revisionist
to submit explanation for delay in
support of application for condonation
of delay.(Para 2 to 27)

B. Civil Law - Code of Civil Procedure,
1908 - Order 15 Rule 5, 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 9 percent 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
provision of sub-rule(2) strike off his
defence." 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. Before making an order for
striking
off
the
defence,
it
must
consider any representation made by
the defendant in that behalf and in the
absence of representation, the court
considers whether defence should be
struck off or not on the basis of
material on record.(Para 15 to 25)

The revision is Partly allowed. ( E-5)

List of Cases cited:-

## Text

2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
131

15. Learned counsel for the petitioner
has not been able to show that the erection
and operation of the impugned mobile
tower and 4G Base Transmitting Station by
the opposite party no.7 is in contravention
of any order or direction of the State
Government or any other authority.

16. In this view of the matter, the writ
petition lacks merit and is dismissed.
----------
(2021)02ILR A131
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

S.C.C. Revision No. 5 of 2020

Sanjeev Kumar Sibbal ...Revisionist
Versus
Pramod Kumar Tiwari ...Opposite Parties

Counsel for the Revisionist:
Vivek Kumar Rai, Ajai Kumar, Vinod Kumar
Pandey

Counsel for the Opposite Parties:
A.M. Tripathi, Rakesh Pandey

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401/397 -
Provincial Small Causes Court Act,
1887-Section 25-application-arrears of
rent
and
ejectment-revisionist
had
entered into agreement for tenancy of
a shop-notice were issued for written
statement
and
disposal-
revisionist
filed an application for permission to
deposit the due rent-but the trial court
not permitted and application under
Order 15, Rule 5 CPC. Rejected on the
ground that the revisionist had not
deposited the interest of 9% while
depositing the rent-defendant failed to
present a written statement of defence
within
30
days,
application
under
Order 8 Rule 1 CPC also allowed-it was
filed beyond 90 days, the maximum
period
provided
for
filing
written
statement-provision made in Order 8
Rule 1 are directory in nature and
period may be extended by the court in
case sufficient reason is shown in
writing-impugned
order
set
aside
giving an opportunity to the revisionist
to submit explanation for delay in
support of application for condonation
of delay.(Para 2 to 27)

B. Civil Law - Code of Civil Procedure,
1908 - Order 15 Rule 5, 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 9 percent 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
provision of sub-rule(2) strike off his
defence." 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. Before making an order for
striking
off
the
defence,
it
must
consider any representation made by
the defendant in that behalf and in the
absence of representation, the court
considers whether defence should be
struck off or not on the basis of
material on record.(Para 15 to 25)

The revision is Partly allowed. ( E-5)

List of Cases cited:-

1. M/S Mangat Singh Trilochan Singh Thru.
Mangat Singh(Dead) by L.Rs. & ors. Vs
Satpal,(2003) AIR SC 4300

2. Bimal Chand Jain Vs Gopal Agarwal,(1981) SC
1657
132 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Anil Kumar Mayor Vs IIIrd ADJ, Saharanpur &
ors,(2008) 3 ARC 580

4. Mrs. S. Abel Vs The D.J. & ors.(1980) AIR
Alld. 300

5. Meena (Smt.) & Anr. Vs Smt. Pramodani
Awasthi, (2016) 2 ARC 379

6. Om Prakash Gupta Vs D.J. & anr. (2019) 1
ARC 826

7. Salem Advocate Bar Assc. Vs UOI,(2005) 6
SCC 344

8. Kailash Vs Nanhku & ors.(2005) 4 SCC 480

9. Kanwar Singh Saini Vs High Court of
Delhi,(2012) 4 SCC 307

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Vivek Kumar Rai, learned
counsel for the revisionist and Sri Rakesh
Pandey, learned counsel for the respondent.

2. The instant revision has been filed
under Section 25 of the Provincial Small
Causes Court Act, 1887 against the order
dated 07.01.2020 passed by the Additional
District Judge / Special Judge/ Prevention of
Corruption Act, 5th, Lucknow in SCC Suit
No.42 of 2019; Pramod Kumar Tiwari Vs.
Sanjeev Kumar Sibbal by means of which the
application
no.C-22
of
the
revisionist/defendant (here-in-after referred as
revisionist) for condonation of delay in filing
written statement has been rejected and the
application of the opposite party / plaintiff
(here-in-after referred as opposite party)
under Order-8, Rule-10 of Civil Procedure
Code (here-in-after referred as C.P.C) and
application under Order-15, Rule-5 of C.P.C.
have been allowed and defence of revisionist
has been struck off.

3. The brief facts of the case, for
adjudication of instant revision, are that the
opposite party and the revisionist had entered
into an agreement for tenancy on 01.04.2018
in regard to shop No.B-80 situated at Sri Ram
Tower, 13-Ashok Marg, Lucknow for a
period w.e.f. 01.04.2018 to 28.02.2019 at a
monthly rent of Rs.50,000/- per month. The
opposite party has filed a suit for arrears of
rent and ejectment. The suit was filed on
03.07.2019. The notices were issued fixing
08.08.2019
for
written
statement
and
disposal.
The
revisionist
appeared
on
08.08.219 and filed an application for
permission to deposit the due rent. The
revisionist was permitted to deposit the entire
due rent till 31.08.2019 on his own risk. In
pursuance thereof the revisionist deposited an
amount of Rs.3,00,000/- towards the rent
w.e.f. 01.03.2019 to 31.08.2019. Thereafter
on application of the revisionist, with the
permission of the trial court, the rent of
September and October, 2019 was deposited
on
24.12.2019.
The
revisionist
again
preferred an application on 03.01.2019 for
permission to deposit the rent of November
and December, 2019, which has not been
disposed of till date.

4. In regard to filing of written
statement it has been stated that the copy of
the plaint alongwith documents was not
served and after getting the copy of plaint,
the
written
statement
alongwith
an
application for condonation of delay was
filed on 04.01.2020 marked as C-22. In the
meantime, the opposite party had filed two
applications;
one
application
No.C-15
under Order-8, Rule-10 C.P.C. and another
application No.C-16 under Order-15, Rule5 C.P.C for striking of defence. The
revisionist had filed the objections to the
same thereafter the application nos.C-15,
C-16 and C-22 have been considered and
decided by means of the impugned order
dated 07.01.2020. Being aggrieved the
present revision has been filed.
2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
133

5. Submission of learned counsel for
the revisionist was that the revisionist had
entered into a tenancy agreement with the
opposite party for the shop in question.
During the period of agreement, the opposite
party had forcefully tried to evict the
revisionist on 26.08.2018 therefore the
revisionist has filed a suit for permanent
injunction bearing Regular Suit No. 2001 of
2018. The revisionist had continuously paid
the rent and the rent receipts were issued by
the opposite party up to 01.02.2019 which
have been annexed with the suit by the
opposite party. The notice for termination of
tenancy was not served on the revisionist.
The suit was filed on 03.07.2019. On notice,
the revisionist appeared on 08.08.2019 and
on application of the revisionist and with the
permission of the trial court revisionist had
deposited Rs.3,00,000/- towards rent up
31.08.2019 on 01.09.2019. Thereafter he has
again deposited the rent of September and
October, 2019 on 24.12.2019 with the
permission of court. The rent deposited by the
revisionist has been withdrawn by the
opposite party. He has also filed an
application for depositing the rent of
November
and
December,
2019
on
03.01.2020 but the same has not been
disposed of till date. Therefore, the revisionist
could not deposit the same. He has further
submitted the applications for depositing the
rent. He is ready to deposit the entire dues up
to date but the trial court has not permitted
therefore it could not be deposited. But
without considering it and the objection filed
by
the
revisionist
and
also
without
considering that the 'first date of hearing'
would be the date of framing issues, which
have not been framed till date, the application
under Order-15, Rule-5 has been allowed.

6. He further submitted that the
application for condonation of delay in
filing written statement has also been
rejected without considering that the
written statement was filed after getting a
copy of plaint because after filing of tender
on 04.09.2019 the date was fixed for
23.09.2019
but
subsequently
it
was
mentioned on the order sheet that copy
received of plaint but without any signature
or date of the revisionist or his counsel. The
impugned order has been passed in an
arbitrary and illegal manner, which is not
sustainable in the eyes of law and is liable
to be set-aside. Learned counsel for the
revisionist relied on M/S Mangat Singh
Trilochan Singh through Mangat Singh
(Dead) by L.Rs. and Others Vs. Satpal;
AIR 2003 (SC) 4300, Bimal Chand Jain
Vs. Gopal Agarwal; AIR 1981 SC 1657
and Anil Kumar Mayor Vs. IIIrd
Additional District Judge, Saharanpur
and Others; 2008 (3) ARC 580.

7. Per contra, learned counsel for the
opposite party had submitted that as per
tenancy agreement the rent of the shop in
question was Rs.50000/- per month. But
the same was not being paid regularly and
the period of agreement had also expired
therefore after issuing notice in accordance
with law, which was avoided by the
revisionist, the suit for arrears of rent and
ejectment was filed. He further submitted
that the copy of the plaint was served on
the revisionist alongwith the notice and a
copy of the same was also filed alongwith
supplementary counter affidavit in the civil
suit filed by the revisionist in the month of
July, 2019 and again on 04.09.2019 before
the trial court as the receipt of the plaint
was denied. But the written statement was
not filed within a period of 90 days and the
written statement was filed with delay on
04.01.2020 alongwith an application for
condonation
of
delay
without
any
explanation for delay in filing the written
statement. Therefore the application has
134 INDIAN LAW REPORTS ALLAHABAD SERIES
rightly been rejected in accordance with
law.

8. He further submitted that in the suit
for arrears of rent and ejectment, the issues
are not required to be framed and for the
said purpose no date is fixed therefore the
first date of appearance which was also for
disposal is the first date of hearing by
which date compliance of the Order-15,
Rule-5 of C.P.C. should have been made,
but it was not done because the interest was
not deposited. Thereafter the due rent is
required to be deposited regularly each and
every month within the period provided but
the same has been deposited with delay.
Therefore the opposite party had filed the
aforesaid applications which have been
considered after inviting objections and the
applications
have
been
allowed
in
accordance with law after considering all
facts and circumstances of the case. Hence
there is no illegality or error in the
impugned order. The revision has been
filed on misconceived and baseless grounds
which are not tenable in the eyes of law.
Hence the revision is liable to be dismissed
with
cost.
Learned
counsel
for
the
respondent has relied on Mrs. S. Abel Vs.
The District Judge and Others; AIR
1980 Allahabad 300, Meena (Smt.) and
Another Vs. Smt. Pramodani Awasthi;
2016 (2) ARC 379 and Om Prakash
Gupta Vs. District Judge and Another;
2019 (1) ARC 826.

9. I have considered the submissions
of learned counsel for the parties and
perused the impugned order and the
records.

10. The revisionist and the opposite
party had entered into an agreement for
tenancy on 01.04.2018, which was for a
period w.e.f. 01.04.2018 to 28.02.2019. The
opposite party, on completion of the period
of agreement, after giving a notice to the
revisionist, filed a SCC Suit for arrears of
rent and ejectment. The opposite party had
filed two applications; one under Order-8,
Rule-10 C.P.C. and another under Order15, Rule-5 C.P.C for striking off defence of
the revisionist. Both the applications
alongwith an application for condonation of
delay in filing the written statement by the
revisionist have been considered together
and the applications filed by the opposite
party
have
been
allowed
and
the
application filed by the revisionist has been
rejected by means of the impugned order.
Hence, the present revision has been filed.

11. The learned trial court has rejected
the application for condonation of delay in
filing written statement on the ground that
the written statement has been filed with a
delay of about one month but no
explanation for delay has been filed and the
application of the opposite party under
Order-8, Rule-10 C.P.C has been allowed.

12. Order-8, Rule-1 of C.P.C.
provides that the defendant shall, within 30
days from the date of service of summons
on him, present a written-statement of
defence. The said period may be extended
up to 90 days for reasons to be recorded in
writing. After service of summons the
revisionist had appeared on 08.08.2019. It
appears that the copy of the suit was not
served and the same was served on
04.09.2019, however it has also been
disputed. Therefore after receipt of the
copy of the plaint by the revisionist on
04.09.2019, the written statement should
have been filed within thirty days. But it
was not filed and it was filed on 04.01.2020
which is also beyond ninety days, the
maximum period provided for filing
written-statement. Copy of the order sheet
2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
135
filed alongwith revision indicates that on
04.09.2019, the copy of the plaint was
received
by
the
revisionist
and
subsequently the dates were fixed for
written statement and lastly 02.01.2019 was
fixed for written statement but the written
statement
was
filed
on
04.01.2019
alongwith an application for condonation of
delay.

13. The Hon'ble Apex Court, in the
case of Salem Advocate Bar Association
Vs. Union of India; (2005) 6 SCC 344,
has held that the rules of procedure are
made to advance the cause of justice and
not to defeat it. After considering Order-8,
Rule-1 and Order-8, Rule-10 of C.P.C it has
been held that the provision of upper limit
of 90 days for filling written statement is
directory. However, the time can be
extended only in exceptional cases.

14. The Hon'ble Apex Court, in the
case of Kailash Vs. Nanhku and Others;
(2005) 4 SCC 480, considered the
provisions of Order-8, Rule-1 of C.P. C.
and held that the provisions are directory in
nature and the time may be extended in
case sufficient reason is shown. The
extension of time sought by the defendant
should not be granted in routine manner
and it should be by way of an exception
and for the reasons assigned by the
defendant and also recorded in writing by
the Court with its satisfaction. However, no
straitjacket formula can be laid down for it.
The relevant paragraphs 42 to 45 are
reproduced below:-

"42. Ordinarily, the time schedule
prescribed by Order VIII, Rule 1 has to be
honoured.
The
defendant
should
be
vigilant. No sooner the writ of summons is
served on him he should take steps for
drafting his defence and filing the written
statement on the appointed date of hearing
without waiting for the arrival of the date
appointed
in
the
summons
for
his
appearance in the Court. The extension of
time sought for by the defendant from the
court whether within 30 days or 90 days, as
the case may be, should not be granted just
as a matter of routine and merely for asking
more so, when the period of 90 days has
expired. The extension can be only by way
of an exception and for reasons assigned by
the defendant and also recorded in writing
by the Court to its satisfaction. It must be
spelled out that a departure from the time
schedule prescribed by Order VIII, Rule 1
of the Code was being allowed to be made
because
the
circumstances
were
exceptional, occasioned by reasons beyond
the control of the defendant and such
extension was required in the interest of
justice, and grave injustice would be
occasioned if the time was not extended.

43. A prayer seeking time beyond
90 days for filing the written statement
ought to be made in writing. In its judicial
discretion
exercised
on
well-settled
parameters, the Court may indeed put the
defendants on terms including imposition of
compensatory costs and may also insist on
an affidavit, medical certificate or other
documentary evidence (depending on the
facts and circumstances of a given case)
being annexed with the application seeking
extension of time so as to convince the
Court that the prayer was founded on
grounds which do exist.

44. The extension of time shall be
only by way of exception and for reasons to
be recorded in writing, howsoever brief
they may be, by the court. In no case, the
defendant shall be permitted to seek
extension of time when the court is satisfied
that it is a case of laxity or gross
negligence on the part of the defendant or
his counsel. The court may impose costs for
136 INDIAN LAW REPORTS ALLAHABAD SERIES
dual purpose: (i) to deter the defendant
from seeking any extension of time just for
asking and (ii) to compensate the plaintiff
for the delay and inconvenience caused to
him.

45.
However,
no
straitjacket
formula can be laid down except that the
observance of time schedule contemplated
by Order VIII Rule 1 shall be the rule and
departure therefrom an exception, made for
satisfactory reasons only. We hold that
Order VIII Rule 1, though couched in
mandatory form, is directory being a
provision in the domain of processual law."

15. In view of above, the provisions
made in Order-8, Rule-1 of C.P.C. are
directory in nature and the period may be
extended by the Court in case sufficient
cause / reason is shown in writing and on
consideration the Court finds the same
sufficient and if time is not extended grave
injustice may be done.

16. Perusal of the application for
condonation of delay alongwith written
statement placed on record reveals that
the condonation of delay has been sought
in the application on the basis of
averments made in the written statement
but in the written statement no reason or
explanation for delay has been given.
Consequently,
the
application
for
condonation of delay in filing written
statement has been rejected. However the
copy of the order sheet dated 04.09.2019
indicates that 'copy received of plaint' is
mentioned on margin but there is no
signature or date. So far the plea of
respondent that the plaint was served with
the supplementary counter affidavit filed
in R.S. No.2001 of 2018 is concerned,
perusal of which annexed as Annexure
no.C.A.2 to the counter affidavit indicates
that there is no mention of SCC Suit
No.42 of 2019 in it and only two
annexures have been shown although
copy of plaint has been annexed as SCA3. Therefore it is required to be
considered.

17. The application filed under
Order-15, Rule-5 of C.P.C. has been
rejected on the ground that the revisionist
has not deposited the interest of 9% in
accordance with Order-15, Rule-5 while
depositing the rent w.e.f. 01.03.2019 to
31.08.2019 and the revisionist has not
disclosed
any
reason
for delay
in
depositing the monthly rent of September
and October, 2019 and the representation
as provided under rule has not been
made. However the revisionist had
preferred an application on 03.01.2020 to
deposit the rent for two months up to
December,
2019.
Therefore
the
revisionist has deposited the rent up to
October, 2019 and he had further given
the applications for depositing the rent
although the interest was not deposited
and there is some delay in depositing the
monthly rent. Therefore it can not be said
that there was complete non compliance
of provision made in Order-15, Rule-5 of
C.P.C. Therefore, the question arises as to
whether the defence could have been
struck off in the facts and circumstances
of the case and because the revisionist
has not preferred any representation as
provided under Rule-2 of Order-15 of
C.P.C. However the revisionist has
submitted
further
application
for
depositing the rent and is ready to deposit
the entire dues. The revisionist has also
pleaded in his objection against the
application under Order-15, Rule-5 that
security deposit of Rs.1,80,000/- is still in
deposit with the opposite party and he is
ready to deposit the remaining rent till
date etc.
2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
137

18. In order to appreciate the rival
contentions, the provisions contained in
Order 15 Rule 5 of C.P.C. may be referred
to, which is extracted below:-

"5. Striking off defence for 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 cent, per annum and whether or
not he admits any amount to be due, he
shall throughout the 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 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, paid to the lessor
acknowledged by the lessor in writing
signed by him 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.-(1) 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
deduction 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 the security for such
sum before he is allowed to withdraw the
same."

19. Sub-rule (1) of Order-15, Rule-5
provides that in the event of any default in
making, the deposit of the entire amount
admitted by him to be due or the monthly
amount as aforesaid, the court may, subject
to the provisions of such-rule (2), strike off
his defence. Sub-rule (2) provides that
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,
138 INDIAN LAW REPORTS ALLAHABAD SERIES
of the expiry of the week referred to in subsectio (1) as the case may. In both sub-rule
(1) and (2) the word "may" has been used.
Therefore the court may consider the
representation, if made within the period
provided in such-rule (2). But it does not
mean that if the representation is not made
then the court has to strike off defence in
every case of default. Therefore in case the
representation is made within the time
provided under sub-rule (2) then the court
may consider the same before taking any
decision. However even in absence of
representation it is for the court to decide as
to whether on the basis material available
on
record
and
in
the
facts
and
circumstances of the case, the defence
should or should not be struck off.

20. The Hon'ble Apex Court, in the
case of Bimal Chand Jain Vs. Gopal
Agarwal
(Supra),
considered
the
provisions of Order-15, Rule-5 of C.P.C
and held that delay 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 vests power in the court to strike
off the defence but it does not oblige it to
do so in every case of default. The relevant
paragraph no.6 is extracted below:-

" 6. It seems to us on a
comprehensive understanding of Rule 5 of
Order XV 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. Subrule (2) obliges the court, before making an
order for striking off the defence to
consider any representation made by the
defendant in that behalf. In other words,the
defendant has been vested with a statutory
right to make a representation to the court
against his defence being struck off. If a
representation is made the court must
consider it on its merits, and then decide
whether the defence should or should not
be struck off. This is a right expressly
vested in the defendant and enables him to
show by bringing material on the record
that he has not been guilty of the default
alleged or if the default has occurred, there
is good reason for it. Now, it is not
impossible that the record may contain
such material already. In that event, can it
be said that sub-rule (1) obliges the court
to strike off the defence? We must
remember that an order under sub-rule (1)
striking off the defence is in the nature of a
penalty. A serious responsibility rests on the
court in the matter and the power is not to
be exercised mechanically. There is a
reserve of discretion vested in the court
entitling it not to strike off the defence if on
the
facts
and
circumstances
already
existing on the record it finds good reason
for not doing so. It will always be a matter
for the judgment of the court to decide
whether
on
the
material
before
it,
notwithstanding
the
absence
of
a
representation under sub- rule (2), the
defence should or should not be struck off.
The word "may" in sub-rule (1) merely
vests power in the court to strike off the
defence. It does not oblige it to do so in
every case of default. To that extent, we are
2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
139
unable to agree with the view taken by the
High Court in Puran Chand (supra). We
are of opinion that the High Court has
placed an unduly narrow construction on
the provisions of clause (1) of Rule 5 of
Order XV."

21. A coordinate bench of this Court,
in the case of Mrs. S. Abel Vs. the District
Judge and Other (Supra) relied by the
respondent, has held that word 'may'
provided in Order-15, Rule-5 confers the
power on the court to condone subject to
representation made within ten days.
However as discussed above and in view of
judgment of Hon'ble Supreme Court in the
case of Bimal Chandra Jain Vs. Gopal
Agrawal (Supra) it is to be decided by the
court as to whether in absence of
representation the defence should be struck
off or not. The other judgments relied by
the learned counsel for respondent are not
applicable in facts and circumstance of this
case and the discussion made above.

22. In view of above, the concerned
court has to take a decision under Order-15,
Rule-5,
looking
to
the
facts
and
circumstances of the case, in which the
revisionist has made the compliance of
Order-15, Rule-5 with some shortcoming
and delay and he is ready to comply it up to
date, as to whether the defence should be
struck off or not on the basis of material on
record in absence of representation.

23. One of the arguments of the
learned counsel for the revisionist was that
the first date of framing issues would be the
first date of hearing, which have not been
framed till date, therefore also the defence
could not have been struck off because the
revisionist was ready to deposit the
remaining dues. It has been disputed by the
learned counsel for the opposite party on
the ground that issues are not framed in
SCC Suit and the first date was for writtenstatement and hearing. According to the
law of "Lexican" "the trial of a suit is called
a "hearing" and technically considered, this
includes not only the introduction of the
'evidence and arguments of the counsels,
but the pronouncing of the decree by the
presiding officer'. Therefore the "hearing"
would be when the court applies its mind to
the facts of the case and the first date of
hearing, the first date on which the court
applies its mind to the facts of the case.

24. The Hon'ble Apex Court, in the
case of Kanwar Singh Saini Vs. High
Court of Delhi; (2012) 4 SCC 307, has
held that "first hearing of a suit "under
C.P.C. is ordinarily understood to be the
date on which the court proposes to apply
its mind to the contentions raised by the
parties and it can never be earlier than the
date fixed for the preliminary examination
of the parties and the settlement of issues. It
has further been held that on the date of
appearance of the defendant, the court does
not take up the case for hearing or apply its
mind to the facts of the case, and it is only
after filing of the written statement and
framing of issues, the hearing of case
commences. The relevant paragraphs 12
and 13 are extracted below:-

"12. The suit was filed on
26.4.2003 and notice was issued returnable
just after three days, i.e. 29.4.2003 and on
that date the written statement was filed
and the appellant appeared in person and
his statement was recorded. Order X Rule 1
CPC provides for recording the statement
of the parties to the suit at the "first
hearing of the suit" which comes after the
framing of the issues and then the suit is
posted for trial, i.e. for production of
evidence. Such an interpretation emerges
140 INDIAN LAW REPORTS ALLAHABAD SERIES
from the conjoint reading of the provisions
of Order X Rule 1; Order XIV Rule 1(5);
and Order XV Rule 1, CPC. The cumulative
effect of the above referred provisions of
CPC comes to that the "first hearing of the
suit" can never be earlier than the date
fixed for the preliminary examination of the
parties and the settlement of issues. On the
date of appearance of the defendant, the
court does not take up the case for hearing
or apply its mind to the facts of the case,
and it is only after filing of the written
statement and framing of issues, the
hearing of the case commences. The
hearing presupposes the existence of an
occasion which enables the parties to be
heard by the Court in respect of the cause.
Hearing, therefore, should be first in point
of time after the issues have been framed.

13. The date of "first hearing of a
suit" under CPC is ordinarily understood to
be the date on which the Court proposes to
apply its mind to the contentions raised by the
parties in their respective pleadings and also
to the documents filed by them for the
purpose of framing the issues which are to be
decided in the suit. Thus, the question of
having the "first hearing of the suit" prior to
determining
the
points
in
controversy
between the parties i.e. framing of issues does
not arise. The words the "first day of hearing"
does not mean the day for the return of the
summons or the returnable date, but the day
on which the court applies its mind to the
case which ordinarily would be at the time
when either the issues are determined or
evidence is taken. (Vide: Ved Prakash
Wadhwa v. Vishwa Mohan, AIR 1982 SC 816;
Sham Lal (dead) by Lrs. v. Atma Nand Jain
Sabha (Regd.) Dal Bazar, AIR 1987 SC
197;Siraj Ahmad Siddiqui v. Shri Prem Nath
Kapoor, AIR 1993 SC 2525; and M/s Mangat
Singh Trilochan Singh thr. Mangat Singh
(dead) by Lrs. & Ors. v. Satpal, AIR 2003 SC
4300).

25. In view of above "first hearing of
a suit" would be the day on which court
applies its mind to the case which
ordinarily would be at the time when either
the issues are determined or evidence
taken. The Hon'ble Apex Court in the case
of Sham Lal (Dead) By Lrs Vs. Atme
Nand Jain Sabha (Regd.); (1987) 1 SCC
222, held that the words the 'first day of
hearing' as meaning not the day for the
return of the summons or the returnable
day, but the day on which the Court applies
its mind to the case which ordinarily would
be at the time when either the issues are
determined or evidence taken. The relevant
paragraph-11 is extracted below:-

"11. It appears that there is
consensus in regard to the interpretation of
the expression 'first day' in the context of
the rent legislations of several other states,
for instance, the Gujarat High Court in
Shah Ambalal Chhotalal. v. Shah Babaldas
Dayabhai, dealing with the identical
question as to the meaning of the words
"the first day of the hearing of the suit" as
provided in sub-Seciion 3(b) of Section 12
of Bombay Rents, Hotel and Lodging
House Rates (Control) Act, 1947 has
observed
after
considering
several
decisions that "the words 'the first day of
hearing' as meaning not the day for the
return of the summons or the returnable
day, but the day on which the Court applies
its mind to the case which ordinarily would
be at the time when either the issues are
determined or evidence taken."

26. In view of above and considering
the overall facts and circumstances of the
case and the interest of justice this court is
of the view that the impugned order is
liable to be set aside with an opportunity to
the revisionist to submit explanation for
delay
in
support of
application
for
2 All. M/S Torque Pharmaceuticals Pvt. Ltd. Vs. U.O.I. & Ors.
141
condonation of delay within a period of two
weeks from the date of this order before the
trial court and partly allow the revision
with a cost to be paid by the appellant and
direction to the trial court to decide the
applications afresh in accordance with law.

27. With the aforesaid the impugned
order dated 07.01.2020 is hereby set-aside
and the revision is partly allowed with a cost
of Rs.20,000/- to be deposited by the
revisionist before the trial court within two
weeks of this order. The trial court is directed
to reconsider the applications afresh in
accordance with law and the observations
made here-in-above in this order. The cost
deposited by the revisionist shall be released
in favour of the opposite party and paid to the
account in the name of opposite party.
----------
(2021)02ILR A141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ Tax No. 655 of 2018
with other cases

M/S Torque Pharmaceuticals Pvt. Ltd.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Rahul Agarwal, Sri
Vipin Kumar Kushwaha

Counsel for the Respondents:
A.S.G.I., Sri Akhilesh Kumar Mishra, C.S.C.,
Sri Krishna Ji Shukla, Sri Om Prakash
Srivastava, Sri Ramesh Chandra Shukla.
Tax Law-This batch of Writ are appealable
before the Appellate Tribunal u/s 112 of
the CGST ACT/U.P. GST Act-but Tribunal
u/s
109
CGST
Act
not
constitutedchallenge to impugned orders relates to
question of fact and Appellate Authority is
last
fact
finding
authority-mandamus
issued to specify by notification the State
bench at Prayagraj and-four area benches
at Ghaziabad, Lucknow, Varanasi and Agra
-as Appellate Tribunal of the Goods and
Services
Tax
Appellate
Tribunal-made
functional from 01.04.2021.

W.P disposed(E-7)

List of Cases cited:-

1.PIL Civil No.6800 of 2019 (Oudh Bar
Association through Secretary, & anr. Vs U.O.I.
through Secretary, Ministry of Finance & ors.)

2. Special Appeal No.1481 of 2007 (M/S
Universal Insulator and Cereamics Ltd. Vs
Official Liquidator High Court Allahabad)

3. Vijendra Pal SC Singh Vs Senior Regional
Manager, Food Corporation of India, Lucknow &
anr., AIR 2002 (All) 206

4. Ashok Pandey Vs Allahabad High Court,
(2014) 3 All.LJ 507

5. U.P. Junior Doctors' Association Committee Vs
B. Sheetal Nandwani, (1990) 4 SCC 633

6. L.P. Misra Vs St. of U.P., (1998) 7 SCC 379

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Navin Sinha, learned
Senior Advocate assisted by Ms. Kalpana
Sinha, Sri Nishant Misra, Sri Vishwjit, Sri
Harish
Chandra
Dubey,
Sri
Suyash
Agarwal, Sri Atul Gupta, learned counsel
and
other
learned
counsel
for
the
petitioners, Sri Shashi Prakash, learned
Additional Solicitor General of India