SMT. ANJOO CHATURVEDI Vs. SHRI AAVADHESH KUMAR SRIVASTAVA

JUDGEMENT

(1.) Heard Sri Vinay Khare, learned counsel for the petitioner, who has put in appearance today and filed a rejoinder affidavit and Sri P.K. Srivastava, who has appeared on behalf of the respondent no.1. Facts-

(2.) Briefly stated facts of the present case are that the petitioner defendant claims to be a tenant of a portion of a building bearing House No.112/265, Swaroop Nagar, Kanpur Nagar from last over 60 years and has inherited the tenancy from her father, late Sri R.P. Chaturvedi. Undisputedly, the tenanted building was originally owned by one Sri Atma Ram who admitted the father of the petitioner defendant in tenancy. According to the petitioner defendant, the rent was being lastly realized by one Sri Sita Ram. Undisputedly both Sita Ram and the plaintiff respondent no.1 belong to the family of Sri Atma Ram in line of succession. According to the plaintiff respondent no.1, a family settlement took place on 17.1.1998 in which, the tenanted portion fell in share of the plaintiff respondent no.1 who as well as the aforesaid Sri Sita Ram informed the petitioner defendant that the plaintiff respondent no.1 is the landlord. It is alleged by the plaintiff respondent no.1 that the rent was demanded from the petitioner defendant. On account of non payment of the rent, a notice was issued by the plaintiff respondent no.1 to the petitioner defendant to pay the arrears of rent and vacate the premises. Allegedly, on account of non payment of rent and non vacation of the tenanted premises by the petitioner defendant, the plaintiff respondent no.1 filed SCC Suit No.131 of 2004 on 14.5.2004 seeking relief for eviction of the petitioner defendant and realization of arrears of rent amounting to Rs. 770.93 and Rs. 270/- as damages and Rs. 138.76 as sewer charge, total Rs. 1179.69. According to the plaintiff respondent no.1, the amount was not deposited by the petitioner defendant on his first appearance in terms of Order 15 Rule 5 C.P.C. and as such, they moved an application under Order 15 Rule 5 C.P.C. to struck off the defence of the petitioner defendant. The said application has been allowed by an order dated 14.10.2015 passed by the First Additional Judge, Small Causes Court, Kanpur Nagar and the application under Order 15 Rule 5 C.P.C. being paper no.35C was allowed. Aggrieved with this order, the petitioner defendant filed SCC Revision No.105 of 2015 before the Additional District Judge, Kanpur Nagar which was dismissed by the impugned order dated 23.8.2016. Aggrieved with the aforesaid two orders, the petitioner defendant has filed the present writ petition. Submissions-

(3.) Submission of the learned counsel for the petitioner defendant is that case law relied by the Trial Court as well as the Revisional Court, was inapplicable on the facts of the present case inasmuch as in the present set of facts, the rent was attached by Jal Sansthan Authorities for recovery of water tax and sewer tax. Under the circumstances, there was no breach of provisions of Order 15 Rule 5 C.P.C. Consequently, the Trial Court as well as the Revisional Court committed manifest error of law and facts to allow the application being paper no.35C. In support of his submissions, learned counsel for the petitioner has relied upon the Division Bench Judgment of this Court in the case of Kunwar Baldevji v. XIth Additional District Judge, Bulandshahar, 2003 (3) AWC 2504. He also relied upon Explanation 3 of Order 15 Rule 5 C.P.C. and submits that the amount recovered by the Jal Sansthan Authorities from the petitioner defendant is liable to be adjusted and to be treated as deposit against arrears of rent.