Are the provisions of Order XV, Rule 5, C.P.C. (as amended by U.P. Legislature) mandatory? Has the Court any discretion to condone default in depositing the amount, if a representation is filed after the expiry of ten days of the default?

Answer

On a careful analysis of the provisions of Order XV Rule 5 CPC as amended by U.P. Legislature we find that it is divided into two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit.

Upon Comprehensive Understanding of Rule 5 of Order XV, we find the true construction of the Rule i.e., 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"

Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant on 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.

The Supreme Court in the case of Atma Ram v. Shakuntala Rani, (2005) held that the tenant must comply with the requirements of Order XV Rule 5 CPC 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 ensure 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 CPC.

The Provisions under sub-rule(2) of Rule 5 under Order XV which provides a locus poenitentiae to the defaulting tenant to make a representation within a period of 10 days of the first hearing or within a week from the date of accrual of rent, as the case may be, came up for consideration before a Division Bench of this Court in the case of Pooran Chandra v. Pravin Gupta, [1980 AWC 712], and it was held that in a case where the tenant had not made any representation or had made it beyond the time prescribed the court did not have the discretion to condone the default. The relevant observations made in the judgment are as follows:

“The provision enacted by the 1976 Act, was more detailed and more light. The tenant was required to deposit the entire arrears along with interest at nine percent at or before the first hearing, and also to deposit the monthly amount within a week of its accrual. Previously there was no time limit for depositing the monthly rent. The tenant was to deposit the amount of monthly rent regularly. Now he was required to deposit the monthly rent within a week from the data of its accrual.
The power of the Court to allow further time to deposit was circumscribed. Sub-rule (2) authorised the Court to consider the representation provided such representation is made within ten days of the first hearing or of the expiry of the week...." Thus sub-rule (2) provided a locus poenitentiae to the defaulting tenant; but he must make the representation within ten days of the first hearing or within a week from the date of accrual of rent, as the case may be, If the representation is not made within the specified period of time, the Court has no jurisdiction to consider a time barred representation or condone the delay or extend time.”

Also, in Sri Rangaswmai, the Textile Commissioner and others v. The Sagar Textile Mills (Pvt.) Ltd. and another, A.I.R. 1977 S.C. 1516, the court held that use of word "may" is not decisive, It can mean "shall" Sub-rule (2) uses the word 'may' in the phrase "the Court may consider any representation." It will be preposterous to suggest that the Court can in its discretion refuse to consider a representation made within time. The Court is bound to consider it. It has no discretion there.

Thus, the provisions of Order XV, Rule 5, C.P.C. (as amended by U.P. Legislature) are mandatory and the Court has no judicial discretion to condone default in depositing the amount if a representation is filed after the expiry of ten days of the default.

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