A. Banerji, J. - (1.) THIS writ petition is directed against an order passed by the Vth Additional District Judge, Agra, dated 22nd December, 1981. The learned District Judge dismissed the revision under Section 25 of the Provincial Small Cause Courts Act against an order striking off the defence of the Defendant under Order 15, Rule 5 of the Code of Civil Procedure. The case raises an interesting question of law.
(2.) THE landlords filed a suit for eviction of the tenant and reserved their right to bring a suit for arrears of rent later. The rate of rent was of course mentioned as Rs. 50/ - per month. It was also stated that four months' rent had not been paid and there was a default under Section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. There was an allegation that inspite of termination of tenancy and even after the filing of the suit rent was not deposited month by month as required under Order 15, Rule 5 of the Code. The trial Court applied the provision of Order 15, Rule 5 of the Code and struck off the defence. A revision was preferred and it was dismissed, and now the Defendant tenant has come up to this Court in writ petition. On behalf of the Defendant it was argued by Shri M.C. Agarwal that the provisions of Order XV, Rule 5 of the Code was not applicable at all because the suit was not for the reliefs as contemplated in the said provisions. In other words, it was contended that where a landlord brought a suit for mere eviction without claiming any arrears of rent the provisions of Order XV, Rule 5 of the Code would not be attracted. He further urged that since the provisions of Order XV Rule 5 of the Code was penal in nature the provisions had to be strictly construed. On behalf of the Respondent landlord Shri Ram Niwas Singh urged that after the deletion of the provisions of Sub -section (3) of Section 20 of the Act and the amendment of Rule 5 of Order XV of the Code it was immaterial whether the relief for recovery of arrears of rent was sought for or not in the suit. He urged that it was open to the landlord to claim only the relief of eviction and reserve his right for claiming the arrears of rent in a subsequent suit.
(3.) THE Court below took the view that the provisions of Order XV, Rule 5 of the Code would be applicable in the instant suit and struck off the defence. The question before this Court is whether the defence could be struck off under the provisions of Order XV, Rule 5 of the Code where the landlord had not asked for the relief for arrears of rent as well. It would, therefore, be necessary to refer to the relevant provisions of the Rule 5 as applicable in this State. Rule 5 -Striking off defence on 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 9 per centum 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, 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.;