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(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.

(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.

(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."

(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 ?