- (1.) Heard learned counsel for the petitioner.
(2.) Suit No. 4 of 1996 was filed by one Indu Prakash (since deceased) represented by respondent nos. 2 to 5 herein against the tenant-petitioner for arrears of rent and ejectment from the shop in dispute. Suit was filed on the allegations that the tenant was in arrears of rent from May 1994 to May 1996 and water tax, but has not paid the same despite the notice and, as such, the tenancy has been terminated. The proceedings were contested by the tenant by filing written statement denying the plaint allegations. During the pendency of the proceedings, the respondent-landlord moved an application under Order 15 Rule 5 C.P.C. on the allegations that the petitioner has failed to deposit the outstanding rent on the first date of hearing. The application was contested by the tenant-petitioner with the allegation that the rent is being regularly deposited under Section 30 of the U.P. Urban Building (Regulation of Letting and Eviction) Act, 1972 (hereinafter referred to as the Act) in Case No. 41 of 1996.
(3.) Trial court after considering the entire evidence brought on record by the parties, recorded a finding that the tenant-petitioner has only deposited rent for 18 months under Section 30 of the Act, however, due rent was for 91 months from 19.09.1996 to March, 2004. The trial court has also recorded a finding that no deposit has been made of the monthly rent in the present suit. On the basis of the said findings, the trial court not only struck off the defence of the tenant-petitioner, but by the same order also decreed the suit. Tenant-petitioner went up in revision. Vide impugned judgment and order dated 25.07.2007, the revisional court though allowed the revision and set aside the decree of the trial court for arrears and eviction on the ground that suit was decreed without proving the case by the plaintiff and without any opportunity to the defendant to cross examine. Revisional court, however, affirmed the order passed by the trial court striking off the defence under Order 15 Rule 5 C.P.C. that monthly rent was not deposited regularly. Still the revisional court left it open to the trial court to consider this question again if something new emerges out from the evidence of the plaintiff or from the cross-examination by the tenant-petitioner. Though the defendant was not given any right to make any fresh application in this regard or to file any evidence.;