M.L.Bhat - (1.) THIS is a revision petition filed by the defendant-tenant against the impugned order dated 28-11-1984 by which his defence has been struck out in accordance with Order 15 Rule 5 CPC.
(2.) IT appears that two suits were filed against the revisionist-tenant. The first suit was filed in 1980, which was registered as Suit No. 21 of 1980. That suit was only for arrears of rent. Subsequent suit was filed in 1982, which was registered as Suit No. 2 of 1982. That suit was for eviction of the tenant as also for t he arrears of rent for a different period. The two suits seem to have been consolidated. On 8-12-1982 the plaintiff made an application under Order 15 Rule 5 CPC for striking off the defence of the defendant-tenant. However, this application was dismissed on 21-2-1983 by the court because the landlord-plaintiff admitted to have received the entire amount of rent, which was due to him and which was claimed by him in his application dated 8-12-1982. The second application was filed on 19-10-1983. In this application it was stated that the rent from December, 1982 was not deposited in terms of the Order 15 Rule 5 CPC therefore, the defence of the tenant-defendant be struck off. It seems that the defendant has deposited some amount on different dates. The dispute is regarding the amount of Rs. 2070/-. which according to the defendant-tenant is to be adjusted towards the arrears of rent claimed in suit no. 2 of 1982 whereas the plaintiff-landlord contends that amount was accepted by him on account of payment of arrears of rent in Suit No. 21 of 1980. It is contended that the said amount is not adjustable in Suit No. 2 of 1982 because it was not a deposit made in that suit. This contention was contested by the defendant-tenant, who submitted that this amount is to be taken into consideration for being adjusted in Suit No. 2 of 1982 and if that is done, then the defendant-tenant is not a defaulter and cannot suffer panel consequences of Order 15 Rule 5 CPC.
(3.) I have heard learned counsel for the parties in detail. On the factual aspect of the case I do not want to make any comment because that may prejudice one party or the other. The only point which was vehemently debated before the Court is about the amount of Rs. 2070/-. Whether or not that amount can be adjusted towards the arrears of rent in suit No. 2 of 1982 is the sole question which is to be decided by this order. The learned counsel for the landlord-plaintiff while arguing the case submitted that in Suit No. 21 of 1980 an attachment order was passed in terms of Order 38 Rule 5 CPC. Thereafter, the amount attached in that suit was got by the court below with the consent of the parties in Court and the landlord accepted that amount as rent and agreed that the amount attached will be adjusted towards the rent but it was not agreed that amount will be adjusted in Suit No. 2 of 1982. Therefore, his contention is that that amount will be payment of arrears of rent in suit No. 21 of 1980 only. In my opinion, this contention has no substance for a few reasons which I give below.;