- (1.) B. K. Rathi, J. The opposite party filed a suit for eviction after termination of tenancy from the disputed premises and for recovery of rent against the revisionists, which is Suit No. 31 of 1999. The revisionists contested the suit. However, their defence has been struck off for under the provisions of Order XV, Rule 5 CPC for not depositing the rent by the impugned order dated 3-5-2002. Aggrieved by it, the present revision has been preferred.
(2.) I have heard Sri V. K. Goel, learned Counsel for the revisionists and Sri Sah O. P. Agarwal, learned Counsel for the opposite party. The premises in dispute is godown, which was let out to the revisionists in the year 1995 at rental of Rs. 3,500 per month and lease deed was executed. The suit for eviction was filed in the year 1999 and in the application for striking off the defence the opposite party mentioned that the revisionists have not been paid rent from 1-10-1997. The trial Court found that rent has not been paid as required by Rule 5, Order XV CPC and therefore, strike off the defence. It has been argued by the learned Counsel for the revisionists that the godown is covered by tin shed and it was leaking which caused damage to the goods of the revisionists. That by letter dated 15-8-1997 the opposite party allowed the revisionists to repair the roof by spending amount not exceeding Rs. 21,000. The revisionists spent Rs. 6,000 in the repairs of the roof but it was found that the roof was beyond repair and entire tin sheets are required to be changed and therefore, the repair work was stopped. That the opposite party was requested to change the sheets and the opposite party agree to change the roof and it was further agreed between the parties that no rent shall be payable by the revisionists from 1st day of October, 1997 till the tin sheets are replaced and the roof is made windproof or water proof. According to the agreement, no rent was payable from 1st October, 1997 and accordingly, the rent was not deposited and therefore, the defence cannot be struck off under Order XV, Rule 5 CPC.
(3.) IT has been argued by the learned Counsel for the opposite party that there is written agreement of tenancy, according to which, the rent is payable. That therefore, the alleged agreement cannot be accepted nor can be proved. However this argument of the learned Counsel for the opposite party cannot be accepted. If there is any subsequent agreement, even if it is oral, the same may be proved under the provisions of Clause (4) of Section 92 of the Evidence Act, as the alleged subsequent agreement is not required by law to be in writing and registration. Therefore, it is a matter of evidence whether there was such an agreement. The question for consideration is that in view of the pleading that no rent is payable from 1-10-1997, the defence of the revisionists could be struck off. For appreciating the argument the provisions of Order XV, Rule 5 CPC are extracted below: "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 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, (Emphasis given) 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. " It has been argued by Sri Goel, learned Counsel for the revisionists that the rent is payable within one week from the date of its accrual. That the defendants-revisionists has denied the rent has accrued and therefore, this provision will not apply.;