R.H.ZAIDI, J. - (1.) HEARD learned Counsel for the parties and also perused the record.
(2.) PRESENT revision arises out of S.C.C. Suit No. 34 of 1998 filed by opposite party against the revisionist-defendant and is directed against the order dated 7.11.2001 passed by the XIIth Additional District Judge, Lucknow whereby the defence of the defendant-revisionist has been struck off in exercise of power under Order 15, Rule 5, CPC. Brief facts of the case, which are relevant for the purposes of present revision, are that the opposite party filed the suit for ejectment and recovery of rent on the ground of default against the revisionist. It was pleaded that in spite of notice of demand and termination of tenancy, the amount of rent, which was outstanding against the revisionist was not paid within the time prescribed under the law. The rate of rent was stated to be Rs. 2,000/- per month. Consequently, the plaintiff-opposite party had to file the suit for the above mentioned relief. In the said suit, as it is evident from the material on the record, 30.10.1998 was the first date of hearing. On the said date defendant-revisionist appeared but nothing was deposited in the Court, even the written statement was not filed by her. The written statement is stated to have been filed on 17.3.1999 in which the relationship of landlord and tenant was admitted but the rate of rent was disputed. In the written statement a copy of which has been placed on the record alongwith the counter-affidavit, it was claimed that the rate of rent was Rs. 1,500/- per month. The defendant-revisionist used to pay the rent to the plaintiff- opposite party but no receipts were alleged to have been issued by him. As on the date of first hearing or thereafter, even the admitted amount of rent was not deposited in the Court. The plaintiff-opposite party filed an application for striking off the defence. On the said application on 24.8.1999, following order was passed by the Court below :- "C-23, application under Order 15, Rule 5, C.P.C. Because the rate of rent is differed as alleged in the plaint, C-23 will be decided after adducing of the parties' evidence."
(3.) AFTER the evidence of the parties was concluded, the plaintiff-opposite party again applied for striking off the defence on the ground that the amount of admitted rent was not deposited in the Court by the defendant-revisionist, therefore, her defence was liable to be struck off. The said application was objected to and opposed by the revisionist. The Court below after going through the material on the record, came to the conclusion and recorded a clear and categorical finding that amount of admitted rent was deposited by the revisionist till October, 2000 only and not thereafter. Consequently, in view of the provisions of Order 15, Rule 5, CPC, the defence of defendant- revisionist was liable to be struck off. Having recorded the said finding, the order dated 7.11.2001 was passed. Hence the present petition.;