(1.) B. K. Rathi, J. The opposite party filed a suit for eviction after termination of tenancy from the disputed premises and for recovery of rent against the revisionists, which is Suit No. 31 of 1999. The revisionists contested the suit. However, their defence has been struck off for under the provisions of Order XV, Rule 5 CPC for not depositing the rent by the impugned order dated 3-5-2002. Aggrieved by it, the present revision has been preferred.
(2.) I have heard Sri V. K. Goel, learned Counsel for the revisionists and Sri Sah O. P. Agarwal, learned Counsel for the opposite party.
(3.) IT has been argued by the learned Counsel for the opposite party that there is written agreement of tenancy, according to which, the rent is payable. That therefore, the alleged agreement cannot be accepted nor can be proved. However this argument of the learned Counsel for the opposite party cannot be accepted. If there is any subsequent agreement, even if it is oral, the same may be proved under the provisions of Clause (4) of Section 92 of the Evidence Act, as the alleged subsequent agreement is not required by law to be in writing and registration. Therefore, it is a matter of evidence whether there was such an agreement. The question for consideration is that in view of the pleading that no rent is payable from 1-10-1997, the defence of the revisionists could be struck off. For appreciating the argument the provisions of Order XV, Rule 5 CPC are extracted below: "5. Striking off defence for failure to deposit admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, (Emphasis given) and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub- rule (2), strike off his defence. "