MUKESH SINGH Vs. RAMESH CHAND SOLANKI

JUDGEMENT

(1.) Heard Sri Rishi Chadha, Learned Counsel for the revisionists at length.

(2.) Sri Chadha submits that striking out of the defence of the revisionists is not in conformity with Order XV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code of Civil Procedure'), inasmuch as, the revisionists were not required to deposit the rent keeping in view the defence having been set up by the revisionists. He has invited the attention of the Court to paragraph 3 of the affidavit disclosing the family pedigree to contend that the revisionists are the coparceners of the property in dispute and in this view of the matter, the provisions of Order XV Rule 5 of the Code of Civil Procedure are not attracted. He further contends that the property was purchased out of the joint nucleus family funds and this aspect of the matter has been ignored by the court below, which has summarily dealt with the issue, hence, the impugned order is vitiated.

(3.) Sri Chadha further contends that the order is cryptic and it does not proceed to consider the claim on merits in view of the law laid down by this Court in the case of Ram Sunder Singh v. Vivek Sah,1986 1 ARC 153, paragraph 16. He has further invited the attention of the Court to the decision cited in the impugned order in the case of Pradyuman Jee Vs. Special/Additional District Judge, Ballia and Ors., 2008 71 AllLR 892 to contend that even the said decision protects the interest of the applicants and accordingly, the provisions of Order XV Rule 5 of the Code of Civil Procedure being not applicable striking out of the defence by the court below, is erroneous.