SEEMA PANWAR Vs. AZAD SINGH

JUDGEMENT

(1.) Present petition has been filed under Article 227 of the Constitution of India for setting aside order dated 23.10.2015 (Annexure P8), passed by learned Civil Judge (Junior Division), Gurgaon whereby the defence of the petitioner/defendant was struck off. I have heard learned counsel for the parties and have gone through the entire record carefully including the impugned order passed by the Court below.

(2.) Facts relevant for the purpose of decision of the present petition that respondent/plaintiff filed the main suit for possession by way of ejectment of the petitioner/defendant from the premises No. LG- 16 on lower ground floor in the shopping mall called "Hong Kong Bazaar", Sector 56, Gurgaon, owned by the plaintiff. The said premises was taken on rent vide lease deed bearing vasika No. 15581 dated 1.9.2010 for a period of 96 months ending 11.9.2018 on payment of Rs. 65,300/- per month commencing from 12.9.2010, besides Rs. 2,00,000/- as security. Defendant failed to pay the rent w.e.f. 1.3.2011 despite demands, besides maintenance charges since 12.9.2010 and electricity charges. Defendant issued seven cheques of Rs. 65,300/- each on 12.3.2011 but the same were dishonoured. Even cheque of Rs. 4,50,000/- dated 4.8.2011 was also dishonoured. Legal notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act") was issued on 16.9.2011 thereby terminating the tenancy and despite service of notice, defendant failed to vacate the tenanted premises and as such necessity of the suit for recovery of Rs. 9,07,100/- along with interest at the rate of 18% per annum and the amount for use & occupation of the premises from the date of filing of the suit till vacation of the suit premises.

(3.) Learned counsel for the petitioner submitted that the Court below has not considered the matter in controversy in its true perspective and decided the application with the assumption that the provisions of Order 15 Rule 5 CPC are mandatory, whereas the same are directory. On this point, reliance was placed upon the judgment rendered by this Court in case Raj Kumar Mittal v. Arvind Kumar Jain, 2003 1 RCR(Rent) 63 .