B. D. Agarwal, J. - (1.) :-
(2.) THE petitioner had been tenant of a portion in house No. 15/251-A Doodhwala Bungalow, Civil Lines, Kanpur. THE rent admittedly is Rs. 12.50 per month. On August 10, 1976 the respondents 3 to 7 gave him a combined notice under section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (for short, the U. P. Act XIII of 1972) and section 106 Transfer of Property Act. THE rent claimed was Rs. 50/- for the period of April 1, 1976 to July 31, 1976 besides drainage tax since April 1, 1975. THE petitioner tendered a sum of Rs. 50/-by Money-Order addressed to the respondent no. 7 which the latter declined to accept. THE petitioner thereupon applied under section 30 (1) of the U. P. Act XIII of 1972 in the court of Munsif City, Kanpur for leave to deposit the rent in favour of the respondent no. 7. THE application was opposed by the respondent no. 7 who filed objection on July 8, 1977 but this was allowed by the order made on the same day. Original suit 1575 of 1976 was instituted thereafter by the respondents 3 to 7 on October 19, 1976 in the court of the Small Causes, Kanpur against the petitioner for eviction. Claim was also made for rent for the period of September 1, 1976 to September 15, 1976 in the amount of Rs. 6.25 only, besides, damages for use and occupation from September 16, 1976 and drainage tax amounting to Rs. 5.62 from April 1, 1975. Summons was issued to the petitioner-defendant in the suit for February 15, 1977 and he filed his written statement the same day. An Application was made by the respondents 3 to 7 in the trial court on July 23, 1979 contending that the petitioner-tenant had not complied to the requirement under Order XV Rule 5 CPC and hence the defence was liable to be struck off. THE petitioner filed objection against this on August 7/9, 1979. THE application was rejected by the trial court on September 3, 1979. Against this the respondent preferred revision which has been allowed by the 7th Additional District Judge, Kanpur on July 15, 1980. Aggrieved the petitioner has filed this petition under Article 226 of the Constitution and has prayed for writ of certiorari to quash the order dated July 15, 1980 made by the respondent no. 1. Order XV Rule 5 CPC was enacted by the U. P. Act 37 of 1972 which commenced on September 20, 1972. This was repealed and re-enacted with effect from January 1, 1977 by the U. P. Act 57 of 1976. The provision reads as under " 5. Striking off defence on failure to deposit admitted rent, etc.-(1). In any suit by lessor for the eviction of a lessee after the determination of bis lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first bearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine 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. Explanation 1 ;-The expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2. -The expression ' entire amount admitted by him to be due ' means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3 ;-The expression monthly amount due means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deductions except the taxes, if any, paid to a local authority in respect of the building on lessor's account. (2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff. Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited ; "
(3.) DISPUTE does not exist in the present with regard to the compliance to the first part of Order XVI rule 5 (1) above mentioned. The summons for filing written statement was issued for February 15, 1977. This was the date of first hearing within the meaning of Explanation 1. Written statement was filed by the petitioner the same day. His version in regard to the arrear claimed of rent by the plaintiffs was that after having tendered the sum of Rs. 50/- by Money Order to the respondent no. 7-landlord he bad made deposit under section 30 (1) of the U. P. Act XIII of 1972 in the court of the Munsif City, Kanpur and nothing remained due. The controversy exists with regard to the alleged non-compliance to the second part of Order XV rule 5 (1) and the consequence thereof. Three points were raised in support of Sri S. O. P. Agarwal, the learned counsel for the petitioner t (i) the deposit made under section 30 (1) of the U. P. Act XIII of 1972 may be taken into account to determine whether monthly amount due has been deposited as required under Order XV rule 5 (1) read with Explanation 3 ; (ii) the order to strike off defence is discretionary and in the exercise of this power the court has to consider the bona fides of the tenant in making deposit under section 30 (1) aforesaid ; (ill) the provision contained in Order XV rule 5 CPC is ultravires Article 14 of the Constitution.;