- (1.) Heard learned Counsel for both the sides. The present revision has been filed by the revisionist against an order dated 18.10.2004, passed by the Court below in S.C.C. No. 4 of 2020, by which the Court below has struck off the defence of the revisionist under the provisions of Order XV, Rule 5 of the C.P.C.
(2.) Learned Counsel for the revisionist has argued that the defence of the revisionist has wrongly been struck off especially in view of the fact that the Court below has not recorded any finding with regard to the relationship of the revisionist and the opposite party being landlord and tenant or lessor and lessee.
(3.) Rule 5 of Order XV, C.P.C. as inserted by U.P. Act No. 57 of 1976, is reproduced 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 regularly deposit the monthly amount due within a week from the date of its accrual, 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. Explanation 1.--The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2.--The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account [and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him] and the amount, if any deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.--(1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.;