RAJ KUMAR MITTAL Vs. ARVIND KUMAR JAIN

JUDGEMENT

(1.) These two revision petitions i.e. C. R. Nos. 2941 and 2942 of 1993 filed under S. 115 of the Code of Civil Procedure. 1908 (for brevity the Code) have raised a common question of law and facts and, therefore, both of them are being disposed of by this common order. The substantial question of law raised in these petitions is as to whether the defence of a tenant could be struck off under Order 15, Rule 5 of the Code in a suit which has been pending prior to the addition of Order 15, Rule 5 of the Code on May 13, 1991 but in respect of non payment of rent for the period subsequent to the date of amendment i.e. May 13, 1991.

(2.) Brief facts of the case necessary for deciding the legal question raised in these revision petitions are being referred from C. R. No. 2941 of 1993. The plaintiff-respondent filed a civil suit No. 591 C of 1989 dated November 28, 1989/November 21, 2000 against the defendant-petitioner with a prayer for possession of a shop and also for recovery of arrears of rent of Rs. 1400/- at the rate of Rs.200/- per month for the period commencing from April 1, 1989 to October 30, 1989. Another prayer has also been made for recovery of Rs.200/- p.m. for use and occupation of shop from November 1, 1989 to November 30, 1989.

(3.) During the pendency of the suit, the plaintiff-respondent filed an application under Rule 5 of Order 15 of the Code with a prayer that the defence of the defendant-petitioner may be struck off as they had failed to deposit the arrears of compensation for use and occupation of shop @ Rs.200/- per month from May 1, 1993 till the date of filing the application, which was payable in advance. Claiming that the nonpayment of arrears of compensation for use and occupation is covered by the provisions of Rule 5, Order 15, the plamtiff-respondent submitted that defence of the defendant-petitioner was liable to be struck off. The afore-mentioned application was filed on June 11, 1993. However, on August 11, 1993 defendant-petitioner moved an application before the trial Court seeking direction to the plaintiff-respondent to receive rent from May 1, 1993 to August 31, 1993 because the plaintiff-respondent did not accept the rent out of the Court as per earlier practice. On August 24. 1993, the application filed by the plaintiff-respondent was allowed and that of the defendant-petitioner was dismissed by recording the following order :