- (1.) Heard Mr. A.K. Sharma, learned Counsel for the petitioner and Mr. Shiv Raj Mohan Nigam, in-person. The petitioner is tenant of the portion of the premises No. 58/35, Pipal Wali Gali, Hussainganj, Lucknow. Subsequently, one of the trustees, namely, Shyam Manohar Lal Nigam, in whose favour the rent was being paid, was mutated in the municipal records and as such, the petitioner continued to pay the rent to Shyam Manohar Lal. After his death, the rent was paid to his son, namely, Hari Mohan Nigam and after his death, Kuldeep Nigam was the owner, who realized the rent of the premises under tenancy from the petitioner. Thereafter, the rent was deposited in the Court. The aforesaid fact of payment of rent is being disputed by the Managing Trustee, namely, Shiv Raj Mohan Nigam. He submits that neither the rent has been paid to the legal heirs of Shyam Manohar Lal Nigam nor he deposited the same in the Court and as such, on account of non-payment of deposition of rent, the defence of the petitioner has been struck down as provided under Order XV, Rule 5 of the Code of Civil Procedure, as applicable in the State of Uttar Pradesh, Against which revision was filed which was rejected by the order dated 6.10.2009. Being aggrieved, the instant writ petition has been filed.
(2.) In order to adjudicate the matter, it is imperative to look into the provisions of Order XV, Rule 5 of the Code of Civil Procedure, which are as under: 5. Striking off defence for failure to deposit admitted rent.--(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence.
(3.) On perusal of the provisions of Order XV, Rule 5 of the code, it is evident that after determination of the tenancy on the first date of hearing of the Suit, he should have moved an application for depositing the entire admitted outstanding amount as rent including 9% interest as well as other charges. Further, during pendency of the proceedings, he shall continuously deposit the entire amount admitted by him to be due failing which it is open for the Court where the proceedings are pending to struck down the defence.;