RAM KUMAR Vs. VIRENDER KUMAR

JUDGEMENT

(1.) Virinder Kumar, respondent, filed a suit against the petitioner for possession alleging that he had been inducted as a tenant at the rate of Rs. 600/- per month besides house tax by the mortgagee of the plaintiff and that there existed a relationship of landlord and tenant between his mortgagee and the defendant-petitioner. The further case of the petitioner is that the defendant-petitioner is in unauthorised occupation of the shop and therefore he is entitled to possession of the same along with compensation for use and occupation.

(2.) Petitioner put in appearance and contested the suit. He inter alia pleaded that he is a direct tenant under the plaintiff at the rate of Rs. 600/- per month including house tax.

(3.) During the pendency of the suit plaintiff moved an application under Order 15 Rule 5 of the Civil Procedure Code with a prayer that the defence of the defendant may be ordered to be struck off for his failure to deposit the admitted rate of rent. The trial court on a consideration of the matter directed the defendant to deposit in court the entire amount admitted by him to be due from February 1993 onwards at the rate of Rs. 600/- for month instead or striking off his defence straightway. The defendant petitioner has challenged this order of the trial court by filing the present revision petition. Learned counsel for the petitioner submitted that the provisions of Order 15 Rule 5 of the Civil Procedure Code as amended by this Court have no application to the facts of this case as the plaintiff has not admitted the defendant as his tenant but has alleged to be a trespasser. It is only the tenant who is required by the provisions of the above rule to pay to the plaintiff or to deposit in court the amount atleast at the admitted rate and for the period for which it is admitted to be due. In the present case the relationship being not admitted, petitioner could not be ordered to deposit the amount with the trial court.