- (1.) S. U. Khan, J. This is tenant's writ petition directed against order passed by Additional District Judge in revision striking off his defence. JSCC/munsif Nagina in Suit (SCC Suit No. 57 of 1981) had refused to strike off the defence of petitioner tenant by order dated 18-9-1982. Landlord respondent filed revision against the said order being Civil Revision No. 291 of 1982 which was connected with Civil Revision No. 292 of 1982. Civil Revision No. 292 of 1982 was dismissed while Civil Revision No. 291 of 1982 was allowed.
(2.) LALA Radhey Lal original landlord respondent No. 3 (since deceased and survived by legal representatives) filed two suits against Abdul Aziz and Abdul Wahid father and son. Abdul Aziz died during the pendency of revision leaving behind the other tenant Abdul Wahid his son as his only legal representative. Abdul Wahid filed the instant writ petition and he also died during pendency of the writ petition and was survived by legal representatives. Radhey Lal had filed two suits against Abdul Aziz and Abdul Wahid, the tenants regarding the same tenanted accommodation. In suit No. 57 of 1981, eviction was sought from the shop in dispute alongwith recovery of arrears of rent while in suit No. 58 of 1981 decree for arrears of rent of different period was sought. Both the suit were consolidated. Application for striking off the defence had been filed in suit No. 58 of 1981 before consolidation of both the suits. The said suit relates to only recovery of arrears of rent hence provision of striking off the defence is not applicable to the said suit. The Revisional Court after noting the aforesaid facts held that after order of consolidation of both the suits, application for striking off the defence could be treated to have been filed in suit No. 57 of 1981, which contained the prayer for eviction also. The Revisional Court in the alternative held that defence could be struck off even without any application. The Trial Court dismissed the application on the ground that rent had been deposited in a case under Section 30 of U. P. Act No. 13 of 1972. Defendants had also filed application for condonation of any delay in the deposit. The Revisional Court after giving the entire details of the deposits made under Section 30 held that after receiving notice of demand tenants were not authorized to deposit the rent under Section 30 of the Act. 20-11-1981 was the date fixed in the suit. On 20-11-1981 defendants sought adjournment for filing written statement which was granted. The Revisional Court treated the said date to be the date of first hearing. In view of Supreme Court authority reported in A. I. R. 2002 S. C. 995, the said date cannot be taken to be the date of first hearing. Unless written statement is filed, Court cannot apply its mind to the controversy. No date until filing of the written statement, which is taken on record by the Court, can be said to be the date of first hearing.
(3.) THE Revisional Court is right in holding that after receiving notice of demand tenant is not entitled to deposit the rent under Section 30 of the Act. However, as held by the Supreme Court in B. C. Jain v. Y. Agarwal, AIR 1981 SC 1657, the power to strike off the defence is discretionary. Trial Court had exercised the discretion in favour of the tenants. In revision normally such discretion cannot be interfered with. Even otherwise the proper course for Revisional Court was to remand the matter to the Trial Court and not to strike off the defence by itself. From the records, it is not clear as to what was legally the first date of hearing the date on which written statement was brought on record and Court could apply its mind ).;