HOTU RAM SACHDEVA Vs. ADDITIONAL DISTRICT JUDGE LUCKNOW

JUDGEMENT

(1.) BHAGAT Kundal Lal opposite party no. 3 is landlord owner of house no. 553/151 Adarsh Nagar, Lucknow. Hotu Ram Sachdeva petitioner took one room and some other portion of the house on monthly rent of Rs. 30/- per mensem somewhere in the year 1966. Hotu Ram Sachdeva continued to occupy the aforesaid accommodation. According to Hotu Ram Sachdeva the rent continued to be Rs. 30/- per mensem, whereas BHAGAT Kundan Lal claimed that it was enhanced upto Rs. 52/- per mensem. Some dispute, therefore, arose between the parties in the year 1973 regarding arrears of rent. BHAGAT Kundan Lal opposite party no. 3, therefore, filed SCC suit No. 914 of 1973 for ejectment of Hotu Ram Sachdeva and arrears of rent and damages for use and occupation That suit was decreed on 27-4-1974. Hotu Ram Sachdeva filed revision against that judgment and it was partly allowed on 27-1-1976. The suit for eviction was dismissed and decree for arrears of rent was maintained BHAGAT Kundan Lal thereafter filed SCC Suit No. 1838 of 1976 for recovery of a sum of Rs. 520/- as arrears of rent alleging that the rate of rent was Rs. 52/- per mensem In that suit also Hotu Ram Sachdeva contended that the rate of rent is Rs. 30/- per mensem. That suit was decreed on 28-7-1980 for recovery of the aforesaid sum as arrears of rent holding that the rate of rent is Rs. 52/- per mensem. Against that judgment also Hotu Ram Sachdeva filed revision but it was dismissed in default. An application for restoration of the revision has been moved by Hotu Ram Sachdeva and it is pending in the Court of revision. BHAGAT Kundan Lal filed third suit on 1-4-1978 for recovery of a sum of Rs. 884/- as arrears of rent from 1-11-1976 to 31-3-1978 at the rate of Rs 52/- per mensem and for ejectment of Hotu Ram Sachdeva. This suit was also contested by him pleading inter alia that the monthly rate of rent is Rs. 30/ per mensem and he is not liable to ejectment. In this suit BHAGAT Kundan Lal moved an application under Order 15 Rule 5 CPC for striking off the defence contending that the defendant has not paid the entire amount on the first date of hearing and has not been regularly depositing the rent, due as required under Order 15 Rule 5 CPC. Against this application Hotu Ram Sachdeva filed objection denying that he committed any default as pleaded by BHAGAT Kundan Lal. The learned Additional Judge Small Causes Courts, Lucknow held in his order dated 9-12-1981 that Hotu Ram Sachdeva tenant failed to make deposit of rent regularly as required under Order 15 Rule 5 CPC so his defence is liable to be struck off. He accordingly allowed the application of BHAGAT Kundan Lal and struck off the defence. He then proceeded with the case and decreed the suit for eviction and for recovery of a sum of Rs. 884/- as arrears of rent and pendente lite and future damages for use and occupation at the rate of Rs. 52/- per mensem. Against that judgment Hotu Ram Sachdeva filed a revision but it was dismissed holding that the defence was rightly struck off. Hotu Ram Sachdeva then filed the present writ petition for quashing the aforesaid order striking off the defence and the judgments passed by the trial Court and the Court of revision Annexures no. 9, 10 and 15. His main contention is that he did not commit any default in deposit of admitted rent or monthly amount within the meaning of Order 15 Rule 5 CPC and the Court struck off the defence without properly appreciating the real controversy and legal position. BHAGAT Kundan Lal opposite party no. 2, on the other hand, pleaded that his defence had been rightly struck off for not depositing the admitted rent and did not deposit regularly the monthly amount due from him. During pendency of the writ petition Hotu Ram Sachdeva died. His widow Smt. Mohini Kumari and two sons Narendra Kumar Sachdeva and Manoj Kumar Sachdeva were, therefore, substituted as his legal representatives.

(2.) IT was vehemently argued by the learned counsel for the petitioner that no default as contemplated by Order 15 Rule 5 CPC was committed by Hotu Ram Sachdeva and the order striking off the defence and decreeing the suit has been passed without giving an opportunity to prove his defence. There is much force in this contention.

(3.) IN Suit No. 446 of 1978 the rent was claimed from 1-11-1976 to 31-2-1978 i. e., for 17 months at the rate of Rs 52/- per mensem amounting to Rs. 884/.-. The defendant, on the other hand, clearly pleaded in his written statement that the monthly rate of rent was Rs. 30/- per mensem. He was, therefore, liable to pay rent for the aforesaid period at the rate of Rs. 30/- per mensem amounting to Rs. 510/-. It is undisputed that on 27-7-1978 the date of hearing the defendant paid a sum of Rs. 1230/- to the lessor in cash. This amount was much more than the admitted rent due for the period including the interest at the rate of 9% per annum. It is also undisputed that the defendant lessee thereafter deposited a sum of Rs. 208/- on 7-10-1978, Rs. 208/- on 6-2-1979, Rs. 312/- on 2-8-79, Rs. 1352/,- on 4-5-1981 and Rs. 500/- on 17-5-1982. Since the order striking off the defence had been passed on 9-12-1981, the point to be seen is if the defendant lessee had committed any default in payment of the admitted rent at the time of first hearing of the suit or thereafter. It is true that the defendant did not deposit monthly rent regularly falling due during pendency of the suit but on its basis alone it cannot be said that he committed default within the meaning of Rule 5 of Order 15 CPC. At the time of first hearing he deposited rent for 41 months at the rate of Rs. 30/- per mensem whereas the arrears of rent had been claimed for 17 months only. If the balance is carried forward and the subsequent deposits are taken into account, it can be safely said that the defendant lessee had been depositing monthly amount due at the admitted rate well in advance.