HAIDER ABBAS Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) A learned Judge of this Court after noticing that there was an apparent conflict in the view taken by this Court in Basant Kumar Chauhan Vs. VIIth A.D.J. 1994 (1) ARC 107 and Pawan Kumar Vs. Ram Saran 1999 (2) ACJ 1276 with that of the view taken by this Court in Habiburrahman Vs. District Judge & Ors,. 2000 (1) ARC 4 and Ratan Bhushan Shukla Vs. ADJ 1989 (2) ARC 54 has referred the following question for decision by a larger Bench.

(2.) This writ petition has been filed for quashing the order dated 22nd March, 1999 passed by the Judge, Small Causes Court, Allahabad by which the application filed by the landlord for striking off the defence of the petitioner- tenant was allowed and the order dated 22nd August, 2001 passed by the Additional District Judge, Allahabad by which the Revision filed by the tenant against the aforesaid order dated 22nd March, 1999 was dismissed. The landlord-respondent nos. 3 and 4 filed a suit on 3rd January, 1997 in the court of Judge, Small Causes being Suit No. 1 of 1997 for giving vacant possession of the premises and for a decree for arrears of rent and cost of notice as the petitioner-tenant had committed default in payment of rent from March, 1994 and inspite of the notice dated 7th October, 1996 terminating the tenancy and demanding arrears of rent, the tenant did not pay the arrears and nor did he vacate the premises. On 13th May, 1997 the Judge, Small Causes Court directed that the matter should proceed ex-parte but the tenant moved an application for recalling the aforesaid order which application was allowed on 28th August, 1997 with a direction to the tenant to file his written statement. The written statement was thereafter filed on 2nd February, 1999 mentioning therein that the tenant had never committed default in payment of rent and that as the landlord had refused to accept the rent w.e.f. September, 1996, the amount was sent through money-order which too was refused by the landlord as a result of which an application under Section 30 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act') was filed which was registered as Miscellaneous Case No. 60 of 1997 and the rent was thereafter regularly deposited in the said Miscellaneous Case. On 2nd September, 1999 an application was moved on behalf of the landlord under Order XV Rule 5 of the Code of Civil Procedure (hereinafter referred to as ''CPC') for striking off the defence of the tenant as the tenant had not only failed to deposit the entire arrears of rent but he was also not regularly depositing the monthly amount due during the continuation of the suit as was required under Order XV Rule 5 CPC. An objection was filed on behalf of the tenant to the aforesaid application pointing out that he had been depositing the rent in Miscellaneous Case No. 60 of 1997 filed under Section 30 of the Act, which amount could be withdrawn by the landlord to which the tenant had no objection.

(3.) The learned Judge, Small Causes Court, Allahabad by his order dated 22nd March, 1999 allowed the application filed by the landlord and ordered that the defence should be struck off on the ground that the amount deposited under Section 30 of the Act in the Miscellaneous Case could not be considered for the purposes of Order XV Rule 5 CPC. The Revision filed by the tenant against the aforesaid order was also dismissed by the order dated 22nd March, 1999 holding that even after 7th July, 1997 when the tenant had put his appearance in the suit, the monthly amount was deposited not in the said Court but in Miscellaneous Case No. 60 of 1997 which could not have been taken into consideration for the purposes of Order XV Rule 5 CPC. The question that has been referred to us is whether the deposit made under Section 30 (1) of the Act after the date of service of summons in a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purposes of deciding the question whether the defence should or should not struck off under Order XV Rule 5 CPC. In order to appreciate the controversy it would be necessary to place the relevant provisions of Sections 20 and 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:- Section 20 (1). Bar of suit for eviction of tenant except on specified grounds. - (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: .....................