SANDEEP BANSAL Vs. DIPESH SEKHRI

JUDGEMENT

(1.) This is a revision petition filed under Article 227 of the Constitution of India read with Sec. 151 CPC praying for setting aside the impugned order dtd. 5/7/2017 (Annexure P-7) passed on 5/7/2017 but erroneously date mentioned as 5/5/2017, with a further prayer to dismiss the application for leave to defend filed by respondent No.1.

(2.) It is submitted by the counsel for the petitioners that the premises upon which the respondent No.1 was a tenant under a written lease agreement already stands handed over to the petitioners pursuant to an eviction order passed by the Rent Controller. In the proceedings before the Rent Controller, the fair rent was determined by the Rent Controller @ Rs.15,000.00 per month. Although the petitioners were claiming the amount as per the written lease agreement, however, even the fair rent determined by the Rent Controller was not paid by the respondents. Therefore, the petitioners had filed a suit for recovery through summary procedure as envisaged under order XXXVII CPC. In the said proceedings, the respondents could not have been permitted to defend the suit except with condition of deposit of fair rent determined by the Rent Controller. The counsel has further submitted that even the respondent No.1 had admitted the rate of rent to be Rs.15,000.00 per month in the application moved by him for seeking leave to defend. Therefore, the trial Court could not have granted leave to defend; unless the said amount is deposited by the respondents; as mandated by the provisions contained in Sub Rule 5 of Rule 3 of Order XXXVII CPC. Therefore, the order passed by the trial Court deserves to be modified by inserting a condition that leave to defend is subject to deposit by the respondent No.1 the entire amount at the rate of Rs.15,000.00 per month for the entire default duration of tenancy. The counsel for the petitioners has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Southern Sales and Services and others Versus Sauermilch Design and Handels GMBH, 2008 (4) R.C.R. (Civil) 729.

(3.) There is no representation on behalf of contesting respondent No.1. Rather, he has chosen to be proceeded against ex-parte. The counsel appearing for respondent Nos.2 and 3 submits that he has no objection, if the present petition is allowed.