ISHWARI PRASAD Vs. RAJNI DEVI

JUDGEMENT

(1.) SHRIMATI Rajni Devi, the plaintiff filed Suit No. 739 of 1968 for ejectment, recovery of arrears of rent and damages for use and occupation against Ishwari Prasad and Ghanshyam defendants 1 and 2. On the enforcement of U.P. Act No. 13 of 1972 the suit was transferred to the Judge Small Cause Court side on 25-1-1973. It, however, appears that as Ghanshyam Das was dead a substitution application had been filed by the plaintiff for bringing his heirs on record. On 9th April, 1974 the substitution application was allowed and 1-8-1974 was fixed for final hearing. No date for hearing of the suit was fixed between 15- 9-1972 and 1-8-1974. On 1-8-1974 the suit was adjourned to 19-9-1974. On 19-9-1974 an application was moved by the plaintiff praying that since the defendants had not deposited admitted rent and damages as required under O.XV R.5 Civil P.C., the defence was liable to be struck out. The defendants filed their objection stating that the arrears had already been paid under 7-C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 under the orders of Court up-to-date and, therefore, the defence could not be struck off.

(2.) THE Judge, Small Cause Court held that the deposit made under Section 7-C for the period till 30th Sept., 1972 was justified but found that after the enforcement of U.P. Act No. 37 of 1972, the deposit should have been made in the present suit and, as such, the rent deposited in the proceedings under Section 7-C could not save the consequence of O.XV R.5, C.P.C. In the revision the order of the Judge, Small Cause Court, was maintained. Hence this revision.

(3.) THE Judge, Small Causes, however, did not accept the representation for the period from 30th Sept., 1972 to April, 1974. THE ground given was that as the rent for this period had not been deposited in the present suit despite moving of an application by the plaintiff for striking off the defence, the delay could not be condoned.