RAM AGARWAL Vs. SHEELA DEVI

JUDGEMENT

(1.) By means of this writ petition petitioner tenant has challenged the order passed by the revisional court dated 7.7.2004 whereby the revisional court has affirmed the order passed by the trial court dated 3.12.2003.

(2.) The facts leading to filing of this writ petition are that the respondent-landlord filed a suit against the petitioner-tenant for arrears or rent and ejectment. The tenant contested the aforesaid suit. The respondent-landlord filed an application 18C under Order XV, Rule 5 of the Code of Civil- Procedure with the prayer that since the tenant has not complied with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, his defence may be struck off. The petitioner-tenant filed objection 19C to the aforesaid 18C denying the allegations made in the application 18C that the provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in the State of U.P. which are reproduced below : Order XV Rule 5 "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 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 defence. Explanation 1. -- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned............................ (2) Before making an Order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in Sub-section (1), as the case may be. (3) The amount deposited under the rule may at any time be withdrawn by the plaintiff : Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited : Provided 'further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."

(3.) The trial court recorded finding that it is admitted case of the parties that the petitioner-tenant is the tenant on monthly rent of Rs. 225 and further that even assuming that the details furnished regarding deposit to be correct even according to the petitioner-tenant himself that the rent upto 30th June, 2003 and there is no assertion nor any evidence that any rent thereafter has been deposited by the petitioner-tenant, therefore, it is clear that after 30th June, 2003 no rent has either been paid or deposited by the petitioner-tenant in the Court in compliance of Order XV, Rule 5 of the Code of Civil Procedure. The trial court allowed the application 18C for striking off the defence of the petitioner-tenant and dismissed the objection 19C filed by the petitioner-tenant. Aggrieved thereby the petitioner-tenant preferred a revision before the revisional court which was registered as Revision No. 63 of 2004. The revisional court by its order impugned in the present writ petition affirmed the findings of the trial court that no amount is deposited towards the rent by the petitioner-tenant as is admitted by the petitioner-tenant himself after 30th June, 2003. Learned counsel for the petitioner-tenant has relied upon a decision of the Apex Court in Bimal Chand Jain v. Gopal Agarwal, 1981 ARC 463. wherein the Apex Court has held :