SALIL SRIVASTAVA Vs. ADDL DISTRICT JUDGE

JUDGEMENT

(1.) -Petitioner who is practising advocate has filed present writ petition for quashing of the order dated 19.8.2008, passed by Special Judge E.C. Act, Allahabad striking off defence of the petitioner in exercise of authority vested under Order XV, Rule 5 of Code of Civil Procedure and further prayer has been made for deciding various applications moved on behalf of the petitioner and for framing issue in suit.

(2.) BRIEF background of the case as is reflected from the writ petition that petitioner is tenant of respondents No. 2 and 3 for the rent of Rs. 1,800 per month since October, 2001. Petitioner has stated that landlord was interested in increasing rent and to evict the petitioner, in this background he was constrained to file Suit No. 729 of 2003. Petitioner has contended that as counter blast to the said proceedings notice dated 28.11.2003 was sent terminating his tenancy. Petitioner has stated that he filed detailed reply and then Eviction suit was not filed after expiry of period of notice and inter se parties compromise was entered on 5.1.2004. Petitioner has further stated that term and condition of compromise was not respected and suit for eviction was filed being Eviction Suit No. 11 of 2004 without any cause of action. Written statement was filed on 20.4.2004. Petitioner has contended that an application under Order XV, Rule 5 of Code of Civil Procedure was moved on 12.1.2005 whereas rent was duly received. Petitioner has tried to contend that lease deed was also fabricated and filed on 12.1.2005. Petitioner has contended that he objected to the said application by contending that rent was being regularly paid. Petitioner has stated that various dates were fixed in the matter and said application was not pressed as talks of compromise was going on. Petitioner has tried to contend that landlord-plaintiff No. 2 has received rent by way of cash on 8.11.2005 for month of October, 2005 up till December, 2007 and prior rent and subsequent was received by him through money order and by challan. Petitioner has thereafter contended that as false affidavits have been filed, application under Section 340, Cr. P.C. has also been moved and details of negotiation which took place in between to settle the matter amicably has also been mentioned. Application under Order XV, Rule 5 of Code of Civil Procedure had been pressed and therein specific stand was taken that rent in question was not being paid. Petitioner gave details of entire payment. Thereafter application moved under Order XV, Rule 5 of Code of Civil Procedure has been allowed, defence of petitioner has been directed to be struck off which is subject-matter of challenge before this Court.

(3.) IN order to appreciate respective arguments which have been advanced on behalf of the parties provision of Order XV, Rule 5 of Code of Civil Procedure as it is applicable to the State of Uttar Pradesh is being looked into :