LADLY PRASAD Vs. RAM SHAH BILLA

JUDGEMENT

(1.) THE appellant Ladly Prasad filed a suit in the court of the Munsif, Ghaziabad, for eviction of the defendants from the premises in dispute and for recovery of arrears of rent and damages for use and occupation alleging that the defendants were tenants at a monthly rent of Rs. 150.00 and their tenancy had been terminated by a notice under Section 106 of the Transfer of Property Act. The suit was contested by the defendants, inter alia, on the grounds that the notice terminating the tenancy was illegal and the tenancy had not been terminated in law and no rent was due. Necessary issues were framed in the suit.

(2.) DURING the pendeency of the suit Rule 5 was added to Order XV of the Code of Civil Procedure by the Uttar Pradesh Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972). The plaintiff made an application praying that the defence be struck off and an ex parte decree be passed against the defendants as they had failed to deposit the arrears of rent and damages as required under Order XV, Rule 5, Civil Procedure Code. The application was contested on the ground that Rule 5 was not attracted as the lease had not been validly determined and no arrears of rent were due. It was further pleaded that in case Rule 5 was held applicable, 15 days' time be granted for making the requisite deposit.

(3.) WE find no merit in the contention of the respondents that Rule 5 is not attracted unless the court first decides the questions whether the tenancy has been validly terminated and any amount of rent is due from the defendants. Order XV relates to disposal of suit at the first hearing. This stage is arrived after the defendant has filed his written statement, the parties have been examined under Order X, if considered necessary, to clarify the points in controversy, documents on which parties rely have been produced and admission and denial obtained, and necessary issues framed as provided under Order XIV. After the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order XV comes into play. This is anterior to the stage when the parties examine their witnesses. At the stage of Rule 5 of Order XV the court is not required to record finding on disputed questions of fact which can be done only after the parties have led evidence in support of their conflicting claims.