ARUN SHARMA Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) The present revision petition has been filed challenging the impugned order dtd. 6/4/2023 (Annexure P-5) striking off the defense of the defendant-petitioner for non-compliance of Order 15 Rule 5 of the Code of Civil Procedure, 1908.

(2.) Brief facts relevant to the present lis are that the plaintiff- respondent herein filed a suit for possession by way of ejectment with recovery of arrears of rent and mesne profits/damages and permanent injunction. In the said suit it was stated that the plaintiff-respondent was owner of residential plot No.461 admeasuring 220 square meters, situated in a residential colony known as Sector 45, Gurgaon, Haryana. The said property consists of three floors and the first floor is occupied by the defendant-petitioners and his son and the other two portions are on rent. The defendant-petitioners were inducted as tenants on the first floor vide a lease deed dtd. 20/9/2013 for a period of 11 months and the defendant-petitioners agreed to pay a monthly rent of Rs.24,500.00 per month excluding electricity and water charges. The defendant-petitioners further agreed to pay an amount of Rs.49,000.00 as security deposit. It was further the averment in the plaint that the tenancy was renewed on 1/9/2014 and the rent was increased to Rs.27,000.00 per month. The said agreement dtd. 6/9/2014 was also appended with the plaint. A specific stand taken by the plaintiff- respondent was that the defendant-petitioners had failed to pay the rent from 31/8/2017 and sought to recover the arrears @ Rs.27,000.00 starting 1/2/2017. In the written statement, in reply to paragraph Nos.4 and 6 where the lease agreements were referred to, there was a simpliciter denial and the paragraphs were stated to be wrong and denied and no specific denial was made in the written statement. It was, however, the stand taken in the written statement that the defendant-petitioners had paid an amount ofRs.3,00,000.00 in cash to the plaintiff-respondent as earnest money for the purchase of the property in dispute and that the said Rs.3,00,000.00 was to be adjusted at the time of the sale. In para No.23 of the written statement a stand was taken by the defendant-petitioners that the plaintiff-respondent had failed to adjust the amount of Rs.3,00,000.00 either in the rent or towards agreement to sell, therefore, until and unless the plaintiff-respondent clarifies his stand qua Rs.3,00,000.00 taken as advance towards rent or towards the agreement to sell, they were not ready to vacate the property. The issues in the present case were framed on 23/1/2019 and the evidence of the plaintiff-respondent was also closed on 16/2/2021. An application was filed by the plaintiff-respondent under Order 15 Rule 5 read with Sec. 151 of CPC for striking off the defense of the defendant-petitioners on the ground that the rent had not been deposited as per the provisions of Order 15 Rule 5 of CPC. Reply was filed to the said application yet again taking the stand that Rs.3,00,000.00 had been paid as advance for purchasing the property in dispute and that the said amount had not been adjusted. Vide the impugned order the Trial Court allowed the application and the defense of the defendant-petitioners was struck off. Hence, the present revision petition.

(3.) Learned counsel for the defendant-petitioners has contended that in December 2015 an amount of Rs.3,00,000.00 was paid as earnest money in cash as the plaintiff-respondent wanted to sell the suit property. It is further the contention that since the said amount was neither adjusted towards the rent nor the sale deed was executed, hence, the order striking off the defense cannot be sustained. It is further the contention of the learned counsel that the Court ought to have assessed the rent due and given an opportunity to the defendant-petitioners to pay the said amount.