J.N. Dubey, J.
1. This revision is directed against the order dated 26-10-1983 of the I Additional District Judge, Varanasi striking off the defence of the applicant No. 2 under Order XV, Rule 5, C.P.C.
2. The opposite party filed a suit for ejectment of the applicants from the house in dispute claiming that the applicant No. 2 had taken the house in question for the applicant No. 1 on a monthly rent of Rs. 250/-. The applicants committed default in making payment of rent and, therefore, their tenancy was terminated and they were called upon to pay the arrears of rent and vacate the house after one month of the receipt of the notice. The applicants neither paid the rent nor vacated the house and as such she had to file the suit for arrears of rent and ejectment of the applicants from the house in dispute.
3. The applicants filed a joint written statement in the suit. While the applicant No. 1 denied that she was tenant of the house the applicant No. 2 asserted that he had taken the house on rent and claim of the opposite party that he had taken it for the applicant No. 1 was incorrect. It was further stated by the applicant No. 2 that the house was let out to him by the opposite on a monthly rent of Rs. 60/- which he has been paying to her regularly and he has committed no default. However, he deposited Rs. 520.50 in the Court on 25-2-1978, the first date of hearing.
4. The opposite party moved anapplication under Order XV, Rule 5, C.P.C. for striking off the defence of the applicants on the ground that they failed to deposit the necessary amount in the Court on the first date of hearing and they also failed to pay rent for subsequent periods regularly.
5. The learned I Additional District Judge while striking off the defence of applicant No. 2 observed that the applicant No. 1 will be at liberty to contest the claim of the opposite party to show that she is not the tenant and thus not liable to pay rent.
6. I have heard the learned counsel for the parties and have perused the record.
7. From a reading of the order of the Court below it appears that the Court was under the impression that the provisions of Order 15, Rule 5, C.P.C. are mandatory while it is now well-settled that these provisions are discretionary. Thus, in every case of default the Court is not obliged to strike off the defence. In other words even if there is a default the Court in its discretion may refuse to strike off the defence.
8. In Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 the Supreme Court held-
'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 defence if on the facts and circumstancesalready 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.'
9. In Dr. Jaipal Singh Pippal v. 1st Addl. District Judge, Aligarh, (1984) 1 All Rent Cas 343 this Court relying on Bimal Chand Jain v. Shri Gopal Agarwal, (AIR 1981 SC 1657) (supra) held that a Court has discretion to strike off the defence or not even if there is a default.
10. The fact that the provisions of Order XV, Rule 5, C.P.C. are discretionary presupposes that even if there is a default the Court has to consider as to whether in a particular case it was in the interest of justice to strike off the defence. For deciding whether in a particular case defence should or should not be struck off one has to consider the circumstances of that particular case which has not been done in this case. One of the main circumstances which requires consideration is the nature of the default. If the amount of default is small or negligible considering the amount already deposited lenient view may be taken. The Court below has not even mentioned the total amount due, the amount deposited and the amount remaining unpaid and, therefore, it cannot be ascertained as to what was the actual extent of the default. Similarly, another important circumstance is the nature of explanation offered for not complying with the provisions regarding deposit of the amount. Here again, the Court below has not considered the case in correct perspective. The case of the applicants was that they failed to deposit the rent on the first date of hearing due to wrong legal advice. The Court below instead of deciding the correctness or otherwise of this allegation on the basis of evidence on record has rejected it with the observations that it will be unbelievable that an Advocate would have given the advice to the tenant that only the deposit of arrears of rent was enough. If the allegation of the applicants that they failed to deposit necessary amount in the Court within time due to wrong legal advice is foundcorrect the defence of the applicants may not be struck off on this ground alone in view of the decision of this Court in City Board, Mathura v. Ashok Kumar, 1979 All LJ 333 that plea for condonation of delay in making deposit of rent on ground of counsel's wrong advice was sufficient for condoning the delay. This Court held-
'It has come in the judgment itself that the counsel appearing for the defendant-applicant had stated that the deposit had not been made because of the wrong advice given by him. If that was so, the Court below should not have insisted upon the affidavit and it should have accepted the statement of the counsel. It is settled that no client should suffer on account of the mistake of a lawyer. Hence the Court below should have accepted the representation and also the deposit which had been made on that date.'
11. In my opinion, the view of the Court below that as the applicants did not make any representation at the time of making the deposit for condonation of delay their defence was liable to be struck off is incorrect. The Court below has placed reliance on a decision of this Court in Bimal Chand Jain v. Sri Gopal Agarwal, (1982) 1 All Rent Cas 638 : (1982 Ail LJ 1315) for this purpose which was practically set aside by the Supreme Court in Civil Appeal No. 2718 of 1982, Bimal Chand Jain v. Shri Gopal Agarwal. V1983) 1 All Rent Cas 203.
12. It was claimed in the plaint that the defendant No. 2 took the house for defendant No. 1 while in the joint written statement filed on behalf of the applicants it was claimed that applicant No. 2 was the tenant and the applicant No. 1 had nothing to do with it. This being so. it was incumbent upon the Court below to decide the question of relationship of landlord and tenant between the parties before proceeding to decide the application for striking off the defence as laid down in City Board, Mathura v. Ashok Kumar, (1979 All LJ 333) (supra), which has not been done in this case. The Court below has also not considered the question as to whether in a case of joint written statement defence of applicant No. 2 could be struck off while permitting the applicant No. 1 to contest the claim of the opposite party to show that she is not the tenant and thus not liable to pay rent.-The very fact that the Court has permitted theapplicant No. 1 to contest the claim of the opposite party that she was her tenant shows that it was in doubt about the existence of relationship of landlord and tenant between them.
13. In the result, the revision succeeds and is allowed and the order dated 26-10-1983 of the I Additional District Judge, Varanasi is set aside. He is directed to decide the application for striking off the defence of the applicants afresh on merits in the light of observations made in accordance with law. There shall be no order as to costs.