T.S. Misra, J. - (1.) THIS petition arises in the following circumstances. Mohammad Hussain, the opposite party No. 1 filed a suit against Mahboob alias Chhalla, the Petitioner in the Court of Judge, Small Causes for a decree of ejectment of the Defendant and for recovery of arrears of rent and damages alleging that the Plaintiff had determined the tenancy of the Defendant by a notice of demand dated 21 -9 -1979 sent to the Defendant but he committed default in making payment of rent and in not vacating the premises in question. The suit was resisted and a written statement was filed. On the basis of the pleadings of the parties issues were framed. Issue No. 5 was as to whether the defence was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. Both, Plaintiff and the Defendant adduced oral and documentary evidence in support of their contentions. The trial Court decreed the suit. It recorded a finding on issue No. 5 that the defence was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure. It also held that the Defendant was a tenant at the rate of Rs. 50/ - per month and that he had committed default in making payment of arrears of rent after the service of the said notice. Aggrieved by that decision the Defendant filed a revision in the Court of the District Judge, Lucknow. It was heard by the learned II Additional District Judge, Lucknow, who dismissed the revision petition. The revisional Court below concurred with the trial Court that the written statement was liable to struck off under Order XV, Rule 5 of the Code of Civil Procedure. It also concurred with the trial Court that the Defendant had committed default in payment of rent within the meaning of Section 20(2)(a) of the U.P. Act XIII of 1972 and hence was liable to ejectment.
(2.) THE Petitioner has filed the instant petition under Article 226 of the Constitution to quash the said two judgments. The petition has been opposed and counter -affidavit has been filed. For the Petitioner it was submitted that the Courts below fell in error holding that the defence of the Petitioner was liable to be struck off under Order XV, Rule 5 of the Code of Civil Procedure.
(3.) THE learned II Additional District Judge while construing Sub -rule (2) of Order XV, Rule 5 of the Code has observed as under: Sub -rule (2) says before making an order for striking off the defence, the Court may consider any representation. This shows that the striking off is postponed till consideration of the representation. If there is a default, the Court is under duty to strike off, unless if condones under Rule (2). It is true that the adjudication of the application under Order XV, Rule 5 of the Code, should be decided as a preliminary issue but in this case no procedural irregularity could be said to have been made by the trial Judge as no representation was made by the tenant for condoning the delay in making deposit of 'monthly rent' after July, 1981 which ought to have been deposited in the trial Court as required by the said amended provision and it being not done no illegality was committed by the trial Court in exercising discretion to strike off the defence.;