Case Note & Summary
The case arose from a suit by the petitioner, an agriculturist, against the respondent, a businessman, concerning rent arrears. On 27 November 2015, the trial court passed an order under Order XVA of the Code of Civil Procedure directing the respondent to deposit Rs.72,000 as arrears of rent for the period September 2012 to August 2015 within one month. The respondent failed to comply. Consequently, the petitioner filed an application on 22 January 2016 seeking to strike off the respondent’s defence. The respondent then filed an application on 16 February 2016 for three weeks’ time to comply, which was rejected the same day. Another application on 22 February 2016 seeking permission to deposit Rs.84,000 was rejected on 29 February 2016. The respondent challenged the rejection of the latter application before the High Court in Writ Petition No. 2337 of 2016, which was dismissed by a judgment dated 21 April 2016. After this dismissal, the respondent filed a reply to the strike-off application on 7 June 2016. The trial court passed the impugned order granting one week’s time to the respondent to deposit the amount, failing which the defence would be struck off. The petitioner challenged this order before the High Court. The High Court observed that the trial court had committed a patent illegality by granting time, thereby ignoring its own earlier orders and the High Court’s judgment in the earlier writ, which was an error of jurisdiction. It further noted that under Order XXXIX Rule 11(2) CPC, condonation of a default requires the court’s satisfaction that the defaulting party makes amends, and no such satisfaction was recorded. The petitioner also highlighted that no rent had been paid for the period from April 2016. The High Court set aside the impugned order and allowed the petitioner’s application to strike off the respondent’s defence. The rule was made absolute, with no order as to costs.
Headnote
A) Civil Procedure – Striking Off Defence – Non-Compliance with Rent Deposit Order – Code of Civil Procedure, 1908, Order XVA – The plaintiff applied for striking off defence after the defendant failed to deposit Rs.72,000 towards arrears of rent as directed on 27.11.2015. The trial court had earlier rejected the defendant’s applications for time and permission to deposit, which orders were upheld by the High Court. Despite this, the trial court granted one week’s time to deposit. The High Court held this was a patent illegality and an error of jurisdiction, and set aside the order, striking off the defence. Held, the defence must be struck off for non-compliance. (Paras 3-5, 8)
B) Civil Procedure – Condonation of Default – Requirement of Satisfaction – Code of Civil Procedure, 1908, Order XXXIX Rule 11(2) – The trial court granted time to deposit arrears without recording any satisfaction that the defaulting party had made amends as required under Order XXXIX Rule 11(2). In view of the earlier orders and the High Court judgment affirming the refusal to permit deposit, the trial court could not have exercised jurisdiction under this provision. Held, the order was unsustainable for lack of satisfaction. (Para 6)
Issue of Consideration
Whether the trial Court committed an error of jurisdiction and acted illegally by granting further time to the defendant to deposit arrears of rent despite earlier orders refusing such extension and after the High Court had dismissed the challenge to those orders, and whether the defendant's default warranted striking off the defence.
Final Decision
The High Court set aside the trial court’s order. The application of the plaintiff (Exhibit 30 prayed for striking off defence) was allowed in terms of the prayer. The defence of the defendant was struck off. Rule was made absolute. The parties were directed to bear their own costs.
Law Points
- Non-compliance with order under Order XVA CPC mandates striking off defence
- Trial court cannot override earlier orders affirmed by High Court
- Error of jurisdiction when ignoring binding judicial orders
- Condonation under Order XXXIX Rule 11(2) CPC requires satisfaction that defaulting party makes amends
- No satisfaction recorded invalidates extension of time
Case Details
2017 LawText (BOM) (04) 150
WRIT PETITION NO. 3372 OF 2016
Shri A.C. Dharmadhikari, Advocate for the petitioner; None for the respondent
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Nature of Litigation
Writ petition under Article 227 challenging trial court’s order granting further time to deposit rent arrears instead of striking off the defence for non-compliance with a previous order under Order XVA CPC.
Remedy Sought
Petitioner/original plaintiff sought to set aside the impugned order and to have the respondent/defendant’s defence struck off.
Filing Reason
The trial court had granted time to deposit arrears despite earlier orders rejecting extensions and the High Court affirming the refusal, which the petitioner contended was an error of jurisdiction and illegal.
Previous Decisions
Trial court directed deposit of Rs.72,000 on 27.11.2015; rejected application for extension (Exhibit 35) on 16.2.2016 and permission to deposit (Exhibit 37) on 29.2.2016; High Court dismissed Writ Petition No.2337/2016 on 21.4.2016, confirming rejection of Exhibit 37.
Issues
Whether the trial court had jurisdiction to grant further time to the defendant to deposit rent arrears after its own earlier orders rejecting extensions had been affirmed by the High Court.
Whether the non-compliance with the order dated 27.11.2015 warranted striking off the defence under Order XVA CPC.
Whether the trial court complied with the requirement of recording satisfaction under Order XXXIX Rule 11(2) CPC before granting time.
Submissions/Arguments
Petitioner argued that the trial court’s order was patently illegal and an error of jurisdiction as it completely ignored its own earlier orders and the High Court’s judgment in Writ Petition No.2337/2016.
Petitioner contended that no satisfaction was recorded as required under Order XXXIX Rule 11(2) CPC, and the trial court could not have exercised its discretion under that provision.
The petitioner’s advocate submitted that the respondent had not paid or deposited any rent for the period from April 2016, indicating continued default.
No argument was advanced on behalf of the respondent as he remained absent despite service.
Ratio Decidendi
Non-compliance with an order for deposit of rent under Order XVA CPC justifies striking off the defence. A trial court cannot grant further time for compliance when its earlier orders refusing extension have been affirmed by the High Court, as that constitutes an error of jurisdiction. Under Order XXXIX Rule 11(2) CPC, condonation requires satisfaction that the defaulting party makes amends, and such satisfaction must be recorded; failure to do so renders the order unsustainable.
Judgment Excerpts
I find that the learned trial Judge has committed patent illegality by giving a complete gobye to the orders passed by him on application (Exhibit No.35) and on application (Exhibit No.37) and the judgment passed by this Court in Writ Petition No.2337/2016.
After this Court maintained the order passed by the trial Court on the application (Exhibit No.37), it was not open for the trial Court to grant time to the defendant to deposit the amount.
Sub-Rule (2) of Rule 11 of Order XXXIX of the Code of Civil Procedure enables the Court to condone the lapse, however, it can be only on satisfaction of the Court that the party committing default or contravention or breach makes amends.
The trial Court has not applied its mind to the relevant facts and has not recorded its satisfaction as required by the above provision.
Procedural History
The plaintiff obtained an order on 27.11.2015 under Order XVA CPC directing the defendant to deposit Rs.72,000 as arrears of rent within one month. On 22.01.2016, the plaintiff filed an application to strike off the defence for non-compliance. The defendant filed an application (Exhibit 35) on 16.02.2016 seeking three weeks’ time to comply, which was rejected the same day. On 22.02.2016, the defendant filed another application (Exhibit 37) seeking permission to deposit Rs.84,000, which was rejected on 29.02.2016. The defendant challenged that rejection before the High Court in Writ Petition No.2337/2016, which was dismissed on 21.04.2016. After dismissal, the defendant filed a reply on 07.06.2016 to the strike-off application. The trial court passed the impugned order (date not specified) granting one week’s time to deposit, failing which the defence would be struck off. The plaintiff filed the present writ petition, and the High Court set aside that order, striking off the defence.
Acts & Sections
- Code of Civil Procedure, 1908: Order XVA, Order XXXIX Rule 11(2)
