Sibghat Ullah Khan, J. - (1.) LIST is revised. No one is present on behalf of tenant respondent. No counter -affidavit has been filed. This is landlord's writ petition arising out of a suit for eviction instituted by him against tenant (since deceased and survived by respondent No. 3) in the form of suit (SCC Suit) No. 348 of 1984 on the file of JSCC, Allahabad.
(2.) PLAINTIFF -petitioner purchased property in dispute on 12.3.1981 from its previous owner. Previous owner through notice dated 17.4.1981 intimated the tenant about the transfer of ownership/landlordship which was served on 24.4.1981. Similar intimation was given by petitioner also through notice dated 4.6.1981. In the suit, it was alleged that the rate of rent was Rs. 25/ - per month and the tenant was defaulter in paying the rent. The defendant did not comply with the provision of Order XV, Rule 5, C.P.C. and no deposit was made by him in the suit. The defence was therefore strike off on 26.9.1986 by the Trial Court. Thereafter the suit was decreed through judgment and decree dated 23.10.1986. Against the said judgment and decree, respondent No. 3 and respondent No. 4 (since deceased and survived by respondent No. 3), filed revision under section 25, P.S.C.C. Act, which was registered as Civil Revision No. 411 of 1986. The Revisional Court held that the rent had been deposited by the tenant under section 30 of U.P. Act No. 13 of 1972 in the Court of Munsif. The Revisional Court held that even though defendant was required to deposit the rent in the suit after filing of the suit and not in proceedings under section 30 of the Act, however as the deposit under section 30 of the Act was made due to wrong advice of the advocate hence tenant could not be made to suffer for that. Revisional Court also held that the notice was not served. In this regard before the Trial Court copy of envelope containing the notice had been filed which bore the endorsement of the postman of refusal by addressee. In view of the said endorsement and in the absence of any evidence to the contrary, the service of notice stood proved. The Revisional Court held that as original copy of the sale deed had not been filed hence sale did not stand proved. The petitioner landlord had filed photocopy of the sale deed and had stated that the original sale deed was filed in some case in the High Court. This was sufficient for admitting the photostat copy of the sale deed in evidence as secondary evidence under section 65 of Evidence Act.
(3.) REGARDING benefit of deposit of rent under section 30 of the Act due to wrong advice of the advocate, the findings of Revisional Court are not tenable. Some delay in deposit may be condoned under discretionary power by the Court under Order XV, Rule 5, C.P.C., however if no deposit is made then there is no option available to the Trial Court except to strike off the defence. After filing of the suit, tenant is not entitled to deposit the rent under section 30 of the Act. Even if such deposit under section 30 of the Act is made on the wrong advice of the Counsel still defence of the tenant will have to be struck off. Even Otherwise suit was instituted after serving notice of termination of tenancy and demand of rent. After notice of demand tenant is not entitled to deposit or continue to deposit rent under section 30 of the Act (Vide Full Bench decision reported in, 2000 (1) ARC 653). The Revisional Court ultimately allowed the revision and remanded the matter to the Trial Court for decision on merit. Strangely enough Revisional Court did not set -aside the order of the Trial Court dated 26.9.1986, striking off the defence of the tenant. Instead Revisional Court permitted the tenant to file review application before the Trial Court seeking review of the said order dated 26.9.1986. Without setting aside the order of striking of the defence, there was no question of remanding the matter.;