HARI PRAKASH Vs. RAJA RAM GUPTA

JUDGEMENT

(1.) THIS revision is directed against an order of the District Judge, Jhansi dated 4.1.1975 rejecting a revision of the applicant filed under section 25 of the Provincial Small Cause Court Act. Laxmi Devi instituted a small cause court suit no. 1018 of 1971 for the ejectment of the defendants from the accommodation in suit and further for recovery of arrears of rent and damages for use and occupation. Her allegations were that the accommodation had been let out by her to Rajaram, the defendant no. 1, who sub-let the same to M/s Sewak Ram Oil Mills (P) Ltd. and thereafter the defendants 1 and 2 collectively and individually sub-let the same to Hari Prakash, defendant No. 7 and others. On these allegations she alleged that the defendants were liable to ejectment. Defendant No. 7 filed a written statement contesting the suit. He denied the case of the plaintiff and submitted that he was in occupation of the disputed accommodation as the tenant of the plaintiff. The defendant No. 1 Rajaram admitted to have been in occupation of the disputed premises on behalf of the deceased-plaintiff. During the pendency of the suit, Shrimati Laxmi Devi died. Thereupon, Rajaram, defendant No. 1 got himself substituted in her place on the allegation that the plaintiff Laxmi Devi was his wife and he being the heir of the deceased Laxmin Devi was entitled to be brought on the record as plaintiff. The application for substitution was allowed. Thereafter on 6.9.1974, the Judge Small Causes directed the defendant no. 7 to deposit the rent within a period of one week. The deposit was not made. Consequent upon the failure to deposit the amount, his defence was struck oil. Thereupon, he filed a revision before the Additional District Judge under section 25 of the Provincial Small Cause Court Act. The revision was also dismissed on 4.1.1975. Hence this second revision. The point that arised for decision in the present case is whether the defence of a sub-tenant is liable to be struck off for the failure to comply with the conditions mentioned in Order XV Rule 5 C.P.C. According to the case of the plaintiff, the defendant no. 7 was the sub-tenant. Order 15 Rule 5 C.P.C. provides that in any suit by the lessor for the eviction of a lessee from any immoveable property the lessee will be liable to deposit the arrears of rent and the compensation for the use and occupation. The expression "lessee" does not include a sub-lessee. Order 15 Rule 5 will, therefore, apply to a case where a lessee does not deposit the rent within the time stipulated by Order 15, Rule 5 C.P.C. As defendant no. 7 was a sub-lessee, his defence could not be struck off. Sri K. N. Saxena, counsel appearing for the plaintiff contended that as the allegations made by the defendant no. 7 in the written statement were that he was the tenant of the plaintiff and not the sub- tenant, the allegations made in the written statement had to be taken into account for applying Order 15, Rule 5 C. P. C, I am unable to uphold the submission of the counsel for the plaintiff. Under Order 15, Rule 5, it is incumbent on a lessee to make the deposit of the rent or compensation for the use and occupation and not on a sub-lessee. As a matter of fact, in the present case the plaintiff did not claim any contract of tenancy with sub-tenant and alleged that the sub-tenant had been illegally inducted into possession by the lessee. As according to the plaintiff himself, there was no contract between himself and the defendant no. 7, the defence of the latter could not be struck off for non-compliance of Order 15, Rule 5 C.P.C. In the result, the revision succeeds and is allowed. The order dated 6.9.1974 passed by the Judge Small Causes and that of the District Judge dated 4.1.1975 are set aside. The Judge Small Causes is directed to decide the suit on merits. In the circumstances I direct the parties to bear their own costs.