- (1.) A. B. Srivastava, J. This is a tenant's petition. The petitioners have sought a writ of certiorari for quashing an order dated 31-5-1993 of the J. S. C. C. , Meerut striking off their defence under Order XV, Rule 6, C. P. C. and the order dated 9-5-1994 of the Additional District Judge, Meerut confirming same in revision.
(2.) IN this writ petition counter-affidavit has been filed on behalf of the respondent No. 3, the landlord, in response to notice. No rejoinder affidavit has however been filed on behalf of the petitioners. IN accordance with rules of the Court the petition is being disposed of finally at the stage of admission after hearing learned counsel for both the parties. A suit for ejectment and arrears of rent was filed by the respondent No. 3 against the petitioners and respondents No. 4 and 5 on the ground that the shop in suit was assessed to house-tax w. e. f. 1-10- 1978 and as such on the date of suit in 1987 it had not completed 10 years and was not covered by Act 13 of 1972, the tenancy was determined by notice dated 6-2-1987 served on 12-2-1987. The petitioners contested the suit and amongst other things pleaded that Act 13 of 1972 was applicable and the rent has been duly depo sited under Section 30 of the said Act, By his order dated 8-10-1992 the J, S. C. C. directed the case to proceed ex pane. The petitioners on 14-10-1992 applied for recalling the said order. While the same was pending the respondent No. 3 on 19-4-1993 moved an application for striking off the defence of the petitioner on the ground that the defendants have failed to deposit the amount of rent and interest regularly within a week from the date of accrual. This application was opposed by the petitioners in the plea that they regularly deposited the entire amount falling due and they filed receipts in support. The learned J. S. C. C. held that deposit upto 21-3-1988 in the court of Munsif is not proved, deposit for the period 22-4-1989 to 21-5-1989 and 22-3- 1992 to 21-5-1992 has also not been proved and accordingly directed the defence of the petitioners to be struck off. The revisional court confirmed the said finding and also observing that rent from 22-8- 1992 to 21-3-1993 was deposited on 17-3-1993 i. e. with delay, dismissed the revision.
(3.) LEARNED counsel for the petitioners has contended that the conclu sions of the two courts below regarding non-deposit of the rent for the period 22-4-1989 to 21-5-1989 and 22-3-1992 to 21-5-1992 is factually incorrect, their view that there was no representation hence the defence was liable to be struck off, is legally unsustainable. The contention of the learned counsel for the contesting respondents on the other hand is that there being no material to show the deposit of rent for the period stated above, conclusion of the J. S. C. C. affirmed by the revisional court is correct, and that from the facts on record no extenuating circumstances were established so as to refrain from striking off the defence. Yet another contention raised on behalf of the petitioners is that the J. S. C. C. was not justified in keeping the application for recall of the order to proceed ex pane, which was filed earlier pending. The finding of the learned J. S. C. C. that rent upto 21-3-1988 is not proved to have been deposited under Section 30 of Act 13 of 1972, and there after rent for three months from 22-4-1989 to 21-5-1989 and 22-3-1992 to 21-5-1992, is also not proved to have been deposited, is a finding of fact based on appraisal of evidence on record. There is nothing to show that in arriving at this finding the J. S. C. C. ignored to consider any material evidence on record. Consequently the J. S. C. C. or for that matter the revisional court did not commit any manifest error of law in arriving at their conclusion in this regard.;