MAQSOOD AKHTAR Vs. ADDITIONAL DISTRICT JUDGE/SPECIAL JUDGE

JUDGEMENT

(1.) THE present writ petition has been filed against the judgement and order dated 3.12.2009 passed by the revisional court (Additional District Judge/Special Judge Dacoity Affected Area, Jhansi) upholding the order of the trial court dated 2.11.2010 whereby the defence of the petitioner was struck off.

(2.) LEARNED counsel for the petitioner submits that the order striking off the defence of the petitioner (tenant) should not have been passed in the present case and discretion should have been exercised in favour of the petitioner inasmuch as he had paid the rent to the plaintiff from time to time as is evident from various payment receipts and thus, the courts below have committed apparent error on the face of the record. It is further submitted that the courts below have no jurisdiction to entertain the suit because the suit is barred by Section 85 of the Wakf Act,1995 ( for short the 'Act'). Per contra, learned counsel for the respondent landlord submits that, admittedly , the petitioner committed default in payment of the admitted rent for the period between 1.7.07 and 31.12.200 and it was paid only on 14.7.2009 i.e. after almost two years , as such, he failed to comply with the mandatory provisions contained under Order XV Rule 5 C.P.C. . Thus, the courts below have rightly passed the impugned orders and the same do not call for any interference by this court.

(3.) A bare perusal of the record shows that the petitioner did not make any representation within ten days of the expiry of the week as refereed to in sub -clause (1) of Order XV Rule 5 C.P.C. and deposited the amount on 14.7.2009 for the period from 1.7.2007 to 31.12.2009 without seeking any permission of the court below. The courts below have given cogent, convincing and satisfactory reasons for striking off the defence of the petitioner. Reasons mentioned are good enough to satisfy the order and no fault can be found with the approach adopted by the courts below. The findings recorded by the courts below are based on material on record and this Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse.