JUDGMENT
Manmohan Sarin, J.
(1) By this order, I would be deciding Civil Revision Petition No. 919 of 1997, which has been preferred against the order dated 26.8.1977, passed by the learned Additional District Judge, dismissing the application for review of an earlier order dated 23.5.1997 for deposit of rent and requiring the entire arrears to be cleared by 28.8.1977, failing which the defense would be struck off.
(2) This order would also dispose of Civil Revision Petition No-925 ofl997, against the order dated 28.8.1997, by which the defense of the petitioner was struck off on the ground of non-payment of arrears of rent/damages and the evidence of the petitioner was closed.
(3) The petitioner has assailed the impugned orders as being vitiated by material irregularity and illegal exercise of jurisdiction inasmuch as the order Xxxix, Rule 10, Cpc, does not empower the Court to pass an order for striking out the defense. The petitioner further contends that since the specifically applicable provision i.e. Order Xxxix, Rule 10, Cpc, did not provide for striking out the defense, resort could not be had to inherent powers under Section 151, Cpc, to achieve the same.
(4) There is hardly any controversy with regard to the factual position and the same may be noted : (i) The petitioner is a tenant of commercial space at Antriksh Bhawan, 22, Kasturba GandhiMarg, New Delhi under the respondent. Premises were taken on rent in June, 1990, and rent was enhanced by 20% after every three years. The rent was last enhanced to Rs. 8,784.00 per month w.e.f. July, 1996. The petitioner claims to have sent six months rent in advance in July, 1996. There is also an interest free security deposit of Rs. 36.000/, which the petitioner claims has become adjustable. (ii) The respondent required the petitioner to vacate the premises in June, 1996 and on his failing to do so terminated the tenancy and filed a suit for possession and mesne profits. The petitioner filed its written statement raising objections on the maintainability of the suit. The petitioner moved an application under Order Xxxix Rule 10 read with Section 151, Cpc, claiming that the respondent had not paid the charges for use and occupation w.e.f. August, 1996. The tenancy was terminated w.e.f. 31.8.1996. Since the respondent had admitted the liability for payment of Rs. 8,784.00 per month, directions were sought to deliver and pay the admitted amount from August, 1996, without prejudice to the petitioner’s claim to recover damages @ Rs. 50 per sq.ft. (iii) The learned Additional District Judge vide order dated 23.5.1997, directed that the arrears of rent @ admitted rate of Rs. 8,784.00 per month be paid. Further, that the cheques which have not been cleared or the cheques which have been tendered, but returned be again issued by the petitioner. The encashment of the cheques was to be without prejudice to the rights of the parties. The case was listed for respondent’s evidence on 26.8.1997. The petitioner moved another application under Section 151, Cpc, claiming that it had already remitted the cheques for the period July, 1996 to December, 1996 and also claimed adjustment of the security deposit because of the institution of the suit for possession. Petitioner admitted the rate of Rs. 8,784.00 per month and arrears from January to July, 1997. Petitioner sought in review application instalments of Rs. 10,000.00 per month due to losses in business.
(5) The learned Additional District Judge dismissed the application on 26.8.1997, for review holding that a period of three months had passed when the order was made on 23.5.1997, but no amount had been deposited by the petitioner. The case was fixed for 23.8.1997, by which date the entire arrears were directed to be cleared, failing which the defense of the petitioner was to be struck off. The petitioner thereupon filed the revision petition bearing No. 919/ 97, challenging the order dated 26.8.1997. The learned Additional District Judge on 28.8.1997, struck off the defense for non-payment of arrears and fixed the case for 10.9.1997 for arguments. The order dated 28.8.1997, as noticed, was challenged vide Revision Petition No. 925/97.
(6) As would be noticed from the aforesaid factual narration, the petitioner admits the rate of rent of Rs. 8,784.00 per month. The petitioner only claims that cheques for rent from July, 1996 to December, 1996 were sent to the respondent. It is not the petitioner’s claim that these cheques have not been encashed. It is for this reason that the learned Additional District Judge had directed the petitioner to replace the said cheques. Accordingly, there is no dispute as regard the rate of rent or the period from which the rent has been in arrears.
(7) Before coming to the ground of challenge to the impugned orders, it is pertinent to record that when the Revision Petition No. 919/97 came up for admission, learned Counsel for the petitioner made a fervent plea for sometime to clear off the arrears admittedly due @ 8,784.00 per month from August, 1996 till date. Learned Counsel offered to tender a demand draft in the sum of Rs. 50,000.00 in favour of the respondent by 12.9.1997 and pay off the balance or before 12.10.1997. Counsel for the petitioner also submitted that petitioner would continue to pay the amount at the rate of Rs. 8,784.00 by 15th of following month by way of demand draft in favour of the respondent. Learned Counsel for the petitioner further submitted that he has proposed to the petitioner to pay a sum of Rs. 15,000.00 as compensation to the respondent on account of delays and litigation costs etc. Time was sought to seek final instructions from the petitioner’s other partner. The respondent’s Counsel on receiving instructions from the respondent’s son agreed to the above course of action in principle. The matter was, therefore, directed to be listed on 12.9.1997, when the petitioner was to bring a demand draft in the sum of Rs. 50,000.00 in favour of the respondent. In view of this development, the learned Trial Court was directed not to proceed with the judgment till 12.9.1997. The respondent also stated that in case in the meantime decree of possession has been passed, he would not execute it. On 12.9.1997, Counsel for the petitioner submitted that a cheque of Rs. 50,000.00 had been brought in place of demand draft, however, he would attempt to get a demand draft within a day. The petitioner was, however, not willing to pay any amount as compensation to the respondent. In these circumstances, it was also put to the Counsel for the petitioner to ascertain whether the petitioner would be willing to make the payment of the entire arrears during the course of the next week, without compensatory costs as earlier proposed and contemplated to be paid. On 15.9.1997, learned Counsel for the petitioner submitted that petitioner would clear off the arrears of rent but however, no definite plan or period was forthcoming. Accordingly, arguments were heard in the matter and the case was reserved.
(8) Mr. O.P. Verma, Counsel for the petitioner submitted that there was no power under Order Xxxix, Rule 10 Cpc, to strike out the defense. The order passed on 23.5.1997, was not a conditional order. Counsel for the petitioner submitted that in the Code of Civil Procedure wherever it is contemplated that defense will be struck off, a special provision is made therefor. Counsel for the petitioner referred to Section 35(b) where the payment of cost imposed is made a precedent for defense of the suit by the defendant. Reference was also made to the provisions of Order Vi, Rule 14(a) Sub-rule 5, Order Viii, Rule 10, Order Xi, Rule 21 and Order xxxviii, Rule 5, CPC. Referring to these provisions, learned Counsel submitted that the absence of stipulation in Order Xxxix, Rule 10, Cpc, for striking out the defense, it was clear that the Legislature did not intend the defense to be struck out for non-compliance of the directions under Order Xxxix, Rule 10, CPC. He submitted that the order passed under Order Xxxix, Rule 10, Cpc, at best could be on an analogy of an order under Order Xii, Rule 6, Cpc, i.e. based on an admission which would be an executable order. It was open for the respondent to seek its execution. However, the petitioner’s defense could not be struck off, which entailed penal consequences. Learned Counsel further submitted that once the power to strike out the defense has been deliberately not included under Order Xxxix, Rule 10, Cpc, the inherent powers under Section 151 could not be invoked to achieve the said result.
(9) Learned Counsel relied on Shankar Deoba Patial & Another v. Ganpatilal Shiodayal Chamedia, . In the aforesaid case, petitioner/revisionist were directed to furnish security in the sum of Rs.30,000/ – to recover the cost, mesne profits and future mesne profits. A further order was made by the Civil Judge that if they failed to furnish security within 15 days from the date of order, the defense of the defendants would be struck off. The Court in the instant case disapproved of the order for striking out defense since there were various other options available under Order xxxv to order the petitioner to furnish security even he could be sent to civil prison and the Court could even attach the property if-the defendants failed to show cause under Order xxxviii, Rule 6, CPC. The Court accordingly held that in such a case it was improper to disable a party from defending himself when other steps could be taken, if necessary. It may be noticed that in this very case, the Court recognised and accepted that there may be situation for exercise of inherent powers under Section 151, CPC. The Court observed. “But it may be that in a given case a Civil Court may think of ordering under Section 151, Civil Procedure Code in the way the Trial Court has ordered but that should be done only when the Court finds that the defendant’s acts or defaults are wilful and as a last resort; but surely this was not a case in which he could have ordered that the defense of the defendants should be struck out. The facts and circumstances do not warrant such an order…….” Whether this case can be of any assistance to the petitioner would be discussed a little later.
(10) Learned Counsel for the petitioner also placed reliance on R. Ganga Reddyv. P. Raghunatha Reddy, . This was a case where a suit for partition of the properties had been instituted against the petitioner. Application of the respondent/plaintiff for appointment of Receiver to manage lands was refused. However, direction was given to petitioner for deposit of annual sum. Some deposit was made, but there was default. Application for reducing the amount was dismissed. The defense of the petitioner was ordered to be struck off under Section 151, Cpc, for failure to deposit.
(11) The learned Single Judge considered the scope of the inherent powers under Section 151, CPC. The learned Civil Judge was of the view that striking out the defense is the heaviest penalty which could be imposed on the defendant in a suit, since it denied the defendant “reasonable opportunity of being heard” This could be satisfied only when the party is afforded the opportunity of staling his case, of producing his evidence of cross-examining the witnesses etc. Learned Judge noted that only in specific cases, the Legislature in its wisdom considered necessary to forfeit basic right of defendants and made specific provisions viz. Order Vi Rule 16, Order Viii, Rule 10, Order Xii, Rule 21 and Order Xvi, Rule 20, Civil Procedure Code etc. The Court further held that inherent powers could not be exercised so as extend the penal provisions as given in Order Xi, Rule 21, Cpc, to other cases by imposing penalty. If this was done, the Court would be investing to itself a penal power not conferred by the statute. The impugned order striking out the defense was set aside.
(12) I find that although the learned Single Judge in the above case has referred to the decision of the Apex Court in M/s. Ram Chand b Sons Sugar Mills Pvt Ltd., Barabanki v. Kanhayalal Bhargava & Ors., and even included an extract, therefrom, the ratio of decision in Mis. Ram Chand & Sons Sugar Mills Pvt. Ltd., Barabanki v. Kanhayalal Bhargava & Ors., (supra) does not appear to have been appreciated. The observations made by the Apex Court in the above case run counter to reasoning advanced in R. Ganga Reddy v. P. Raghunatha Reddy (supra). In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd., Barabanki v. Kanhayalal Bhargava & Ors., an order had been passed.under Order Xxix, Rule 3, Civil Procedure Code for the personal presence of the Director. There was repeated non-compliance with the said order. Thereupon after issue of show cause, the defense of the defendant was struck off. Here also the argument raised was that Section 151, Civil Procedure Code could not be invoked to strikeout the defense in circumstances covered by Order Xxix, CPC. The arguments being that Order Xxix, Rule 3, Cpc, only empowered the Court, to require personal presence and did not provide for any penalty in case the Director required to appear in the Court failed to do so. In this context, the findings of the Apex Court in para 7 need to be reproduced : “Even so, learned Counsel for .the appellant contended that Order Xxix Rule 3 of the Code did not provide for any penalty in case the Director required to appear in Court failed to do so. By drawing an analogy from other provisions where a particular default carried a definite penalty, it was argued that in the absence of any such provision it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned Counsel had taken us through Order Ix, Rule 12, Order X, Rule 4. Order Xi, Rule 21, Order Xvi, Rule 20 and Order Xviii, Rules 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant order provide for making an ex-parte degree or for striking out the defense. But it does not follow from these provisions that because no such consequential provision is found in Order Xxix, the Court is helpless against recalcitrant plaintiff or defendant who happens to be a Company. There is nothing in Order Xxix of the Code, which, expressly or by necessary implication, precludes the exercise of the inherent power of the Court under Section 151 of the Code. We are, therefore, of the opinion that in a case of default made by a Director who failed to appear in Court when he was so required under Order Xxix Rule 3 of the Code, the Court can make a suitable consequential order under Section 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
From the foregoing, it would be clear that the submissions which have been made, the basis of the decision in R. Ganga Reddy v. P. Raghunatha Reddy (supra) had been negatived by the Apex Court in the aforesaid decision. The Court is accordingly vested with the jurisdiction to invoke inherent powers and pass consequential orders including striking out of the defense, to meet the ends of justice or prevent abuse of process of Court. Further this could be done even where the applicable provision does not contain a penal consequence.
(13) It would also be recalled that even in Shankar Deoba Patial &Anr. v. Ganpatilal Shiodayal Chamedia’s (supra) case the Court recognised that an order for striking out the defense in a given case could be passed in exercise of powers under Section 151, Cpc, but that should be done only when the acts of defaults are wilful and as a last resort.
(14) At this stage, I may also notice another decision of the learned Single Judge of this Court in Brig. S.S. Puriv. R. Chandershekar, . In the said case, the petitioner/landlord had moved an application under Section 151, Civil Procedure Code for direction to the respondent/tenant to deposit the arrears of rent. The learned Single Judge dismissed the said application holding that the damages claimed as well as the rate of rent were disputed and no order in the application could be found. The learned Single Judge found that the petitioner was not seeking the interim order at the rate of damages claimed in suit, but only at the admitted rate of rent in the written statement. The learned Single Judge considered the effect of Order Xii, Rule I and Order Xxxix, Rule 10, Civil Procedure Code and held that the Court had the jurisdiction to pass an order for deposit of rent and considering the principles underlying under Order Xii, Rule I and under Order Xxxix, Rule 10, Cpc, held that such an order could be passed in the exercise of inherent powers under Section 151, CPC. The learned Single Judge held as under : The combined effect of Order Xii Rule I and Order Xxxix Rule 10 of the Code of Civil Procedure is that a Court can, in a case of this kind, in fair exercise of its judicial discretion order for deposit of money pending decision of a suit. Surely, the provisions of Section 151 of the Code of Civil Procedure can be invited in aid to cover all such cases as are analogous to these principles. This being the position, invocation of Section 151 in the present case would neither be in conflict with what has been expressly provided in the Code nor against the intention of the Legislature. Having reached the conclusion that there is jurisdiction to pass an order for deposit of arrears of rent under Order Xxix, Rule 10, Civil Procedure Code and in case of default to pass a order under Section 151, Civil Procedure Code for striking out the defense, let us consider whether the said jurisdiction has been exercised lawfully in the instant case ?
(15) As noticed in para 4, the rate of rent @ Rs. 8,784.00 is admitted. There is no dispute with regard to the period from which rent is due although the petitioner contends that he had remitted the rent for the period July, 1996 to December, 1996 by cheques. It is not his case that the said cheques had been encashed after the termination of tenancy. An order for payment of arrears of rent was made on 23.5.1997 to clear off the same within a month. What does the petitioner do?On the date when the case isfixedforevidencei.e.26.8.1997, an application is filed for review seeking among others a adjustment of security deposit on untenable grounds. Yet there is no dispute with regard to the arrears. Request is made for instalments of Rs. 10,000.00 each per month being granted to clear the arrears from January, 1997 to July, 1997, completely over-looking the period from July, 1996 to December 1996, for which the cheques were admittedly remitted and had not been encashed and become state. The learned Judge as noticed above dismissed the application calling upon the petitioner to clear the arrears of rent on 28.8.1997. This order was challenged in the revision petition. When the case was taken up for admition, on 10.9.1997, it appeared that perhaps the petitioner was bonafide making an attempt to clear the arrears. An offer was made to pay a sum of Rs. 50,000.00 by way of demand draft and the balance arrears on or before 12.10.1997. Not only this petitioner’s Counsel submitted that he had proposed to petitioner to pay voluntarily a sum of Rs. 15,000.00 as compensation to the respondent for delays and litigation costs. The respondent deprived of the rent/compensation for use was eager to avail of this opportunity and in that process was even willing for a settlement by which the order striking out of the defense could be set aside and the petitioner permitted to de fend the suit. The hope of the respondent was alas shortlived. On 12.9.1997 itself, the petitioner retracted from the offer of voluntary payment of Rs. 15,000 / – as compensation towards delays and litigation costs. Counsel for the petitioner fairly expressed his inability to persuade the petitioner. Even at this, the Court on its own called upon the petitioner to ascertain whether the petitioner was willing to make the payment of the arrears during the course of next week. Here again on 15.9.1997, no definite plan for payment was forthcoming and Counsel requested that the matter be heard on merits.
(16) From the foregoing, it would be seen that the petitioner had ample opportunity to pay the arrears from 23.5.1997 to 26.8.1997, which he failed to do. Even thereafter opportunity was given to pay the amount in two instalments upto October, 1997, which the petitioner did not avail of. It is apparent that the petitioner wishes to continue to enjoy the use and benefit of the premises without having to pay for the same. In these circumstances, the impugned orders would seem to be fully justifiable and do not warrant any interference in the exercise of revisional jurisdiction. The revision petitions have no merit and are dismissed.