K.N.Seth, J. - (1.) THE appellant Ladly Prasad filed a suit in the court of the Munsif, Ghaziabad, for eviction of the defendants from the premises in dispute and for recovery of arrears of rent and damages for use and occupation alleging that the defendants were tenants at a monthly rent of Rs. 150.00 and their tenancy had been terminated by a notice under Section 106 of the Transfer of Property Act. The suit was contested by the defendants, inter alia, on the grounds that the notice terminating the tenancy was illegal and the tenancy had not been terminated in law and no rent was due. Necessary issues were framed in the suit.
(2.) DURING the pendeency of the suit Rule 5 was added to Order XV of the Code of Civil Procedure by the Uttar Pradesh Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972). The plaintiff made an application praying that the defence be struck off and an ex parte decree be passed against the defendants as they had failed to deposit the arrears of rent and damages as required under Order XV, Rule 5, Civil Procedure Code. The application was contested on the ground that Rule 5 was not attracted as the lease had not been validly determined and no arrears of rent were due. It was further pleaded that in case Rule 5 was held applicable, 15 days' time be granted for making the requisite deposit. The learned Munsif held that Order XV, Rule 5, Civil Procedure Code was attracted to the case. Fifteen days' time was allowed to deposit the entire dues. The learned Additional District Judge dismissed the revision filed by the defendants and upheld the order of the trial court. The defendants filed a petition in this Court under Article 226 of the Constitution. The learned single Judge, without entering into the merits of the controversy, issued a direction to the effect that in case the petitioners pay the entire amount of rent which according to them was due upto February 28, 1975, within one month or before the first day of hearing that may be fixed in the case by the trial court, the trial court will not strike off the defence. The defendants have also been directed to continue to deposit every month the amount as required by Rule 5. The legality of the order of the learned single Judge has been assailed in this appeal by the plaintiff. It was contended that the decision of the courts below that Rule 5 was attracted to the case was legally sound and that the petition under Article 226 was not maintainable and the learned single Judge had no jurisdiction to grant time to the petitioners to make the requisite deposit. Rule 5 added to Order XV of the Code of Civil Procedure by Act No. 37 of 1972 provides:- "(5) Striking off defence on non-deposit of admitted rent, etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter, throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his defence. (2) The provisions of this Rule are in addition to and not in derogation of anything contained in Rule 10 of Order XXXIX." The earlier part of the rule describes the nature of the suit as one between a lessor and a lessee instituted after the determination of the lease for the eviction of the lessee and for recovery from him of rent or of compensation. The latter part of the rule provides for deposit by the lessee of the entire amount of rent or compensation for use and occupation admitted by him to be due at the first hearing of the suit. The rule empowers the court to refuse to entertain any defence or strike off the defence in case the lessee commits any default in making the requisite deposit unless the court, after considering any representation made by the defendant, allows him further time to make the requisite deposits on security being furnished for the amount. If the suit is of the nature mentioned in the rule, the provisions relating to deposit and the consequences on failure to do so are attracted.
(3.) WE find no merit in the contention of the respondents that Rule 5 is not attracted unless the court first decides the questions whether the tenancy has been validly terminated and any amount of rent is due from the defendants. Order XV relates to disposal of suit at the first hearing. This stage is arrived after the defendant has filed his written statement, the parties have been examined under Order X, if considered necessary, to clarify the points in controversy, documents on which parties rely have been produced and admission and denial obtained, and necessary issues framed as provided under Order XIV. After the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order XV comes into play. This is anterior to the stage when the parties examine their witnesses. At the stage of Rule 5 of Order XV the court is not required to record finding on disputed questions of fact which can be done only after the parties have led evidence in support of their conflicting claims.;