Prakash Krishna, J. - (1.) CHALLENGING the order dated 12th July, 2010 whereby the court below has refused to strike off the defence of the defendant -tenant under Order XV Rule 5 of the Code of Civil Procedure, present revision has been filed under section 25 of Small Causes Court Act. Heard Sri Rahul Sahai, learned counsel for the applicant. None is present on behalf of the opposite party nor the opposite party has filed any appearance. Service of notice on opposite party is reported to be sufficient.
(2.) THE relationship of landlord and tenant between the parties is not in dispute. S.C.C. Suit No. 35 of 2009 was instituted for recovery of arrears of rent and ejectment etc stating that the defendant -tenant is in arrears of rent since 14th September, 2007. An application under Order XV Rule 5 of the Code of Civil Procedure was filed by the plaintiff on the ground that the defendant -tenant has not deposited any rent/damages as required under Order XV Rule 5 of the Code of Civil Procedure, during the pendency of the suit. The defendant -tenant came out with a case that he is not in arrears of rent as he has advanced a sum of Rs. 27,000/ - to the landlord. The court below by the order under revision has held that since the defendant -tenant is disputing the liability to pay the rent on the ground that a sum of Rs. 27,000/ - has been given in advance, therefore, the defence cannot be struck off.
(3.) LEARNED counsel for the applicant submits that under Order XV Rule 5 of the Code of Civil Procedure, the defendant -tenant is required to deposit arrears of rent as admitted in the written statement as also the damages for use and occupation of the premises in question for subsequent months till the disposal of the suit. Admittedly, the tenant has not deposited any amount in the suit.;