S.C.VERMA, J. - (1.) THE petitioner landlord is aggrieved by an order dated 17.11.1989 passed by the District Judge, Allahabad, setting aside the order, striking off the defence of the defendant opposite party.
(2.) A suit for arrears of rent and ejectment was filed claiming a sum of Rs. 3,250/- as arrears of rent for the period 1.1.1978 to 13.6.1979 and arrears of damages for the use and occupation for the period 14.6.1979 to 31.5.1983. The suit was filed for recovery of time barred rent as also damages for use and occupation. The relevant paras of the plaint claiming this amount are quoted below :- "Para 3. - That the defendant is a habitual defaulter in payment of rent and so much so that he has not paid rent to the plaintiff since 1.1.1978 till this day despite repeated requests and demand." Para 6. - The new arrears of rent since 1.1.1978 to 13.6.1979 and Rs. 50/- per month and damages since 14.6.1979 to 31.5.1983 at the same rate total Rs. 3,250/- along with Rs. 32/- as cost of notice is due to the defendant which he is liable to pay to the plaintiff." In the written statement in answer to Paragraphs 3 and 6 following reply was given :- "Para 3. - That the contents of Para 3 of the plaint are denied. The plaintiff is not entitled to recover the arrears of rent for more than three years under the law." "Para 6. - That the contents of Para 6 of the plaint are denied. The plaintiff is entitled to only last three years rent and beyond that period the rent became time barred and not recoverable under law." On the basis of the aforesaid pleadings learned Counsel for the petitioner submitted that the defendant has not denied that the rent was not due but has only denied his liability to pay and this amounts to his admission to pay rent including time barred rent. The provisions of Order 15, Rule 5 of the Code of Civil Procedure as applicable in State of U.P. is as follows :- "5. Striking off defence for failure to deposit admitted rent etc. - (1) In any suit by a lessor for the eviction of a lessee after the determination of the 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 centum 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. - The expression 'first hearing' means the date for filing written statement or 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 be the lessor acknowledged by 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."
(3.) THUS , the question for consideration in the present case is as to what is the amount of rent due and what amount of rent which is due has been admitted by defendant. Therefore, it is not only the amount of rent which is due to be seen under the aforesaid provisions but what amount which is due has been admitted to be due by the defendant. It may be that for calculating the amount due even the time barred rent is included but what actually has to be determined is as to what amount has been admitted to be due by the defendant. Looking to the pleadings the plaintiff has claimed the amount for the period 1.1.1978 to 31.5.1983 amounting to Rs. 3,250/-. The plaintiff has thus claimed time barred rent as also rent and damages for use and occupation of the premises.;