AMI SINGH ALIAS AMI CHAND Vs. PRAKASHWATI VARMA

JUDGEMENT

(1.) THIS revision application under Section 115 of the Code of Civil Procedure had been preferred by the defendant against the order of the trial court striking off his defence u/Or. XV Rule 5 CPC and also against the order of the District Judge affirming that order in revision.

(2.) THE plaintiff opposite party filed suit for recovery of arrears of rent and ejectment against the defendant applicant with the allegations that inspite of repeated reminders and service of notice of demand, the defendant-applicant had failed to pay arrears of rent for the period 1-5-1970 to 1-11-1970. THE defendant contested the suit and asserted that he was not a defaulter he has been offering rent to the plaintiff but she refused to accept the same. He tendered the rent to the plaintiff by money order but on her refusal, he had deposited the same in the Munsif's Court in proceedings under Section 7-C of the U. P. Act No. Ill of 1947. THE defendant further asserted that on receipt of notice of demand, they again tendered rent to the plaintiff-opposite party through money order for the period May, 1970 to November 1970 but she again refused to accept the same. THE defendant thereafter deposited the rent in the Munsif's Court and he has continued to deposit rent and nothing was due from him. THE plaintiff did not file any objection in the Munsif's Court and he is entitled to withdraw the amount deposited by the defendant.

(3.) LEARNED counsel for the defendant-applicant urged that the courts below acted in excess of their jurisdiction in striking off the defence as nothing was due from the defendant and he had made no such admission in the written statement the provision of Order 15 Rule 5 CPC were not attracted. In Ladly Prasad v. Ram Shah Billa, 1975 AWC 602, a Division Bench held that if the defendant does not admit that any amount is due to the plaintiff as rent or damage for use or occupation it need not make any deposit. At that stage, the court is not required to decide the question whether any amount is really due and whether the lease has validly been terminated. The court cannot compel the defendant to deposit >the amount claimed by the plaintiff if the defendant does not admit any amount due from him.