M.C.AGARWAL, J. - (1.) THIS is a petition under Article 226 of the Constitution of India by a tenant whose defence in a suit for ejectment has been struck off under the provisions of O. XV, R. 5 of the Civil P.C. as amended in the State of Uttar Pradesh.
(2.) I have heard the learned counsel for the petitioner and the learned counsel for the respondents. The respondent No. 3 filed a suit No. 95 of 1991 in the Court of Judge, Small Causes, Allahabad for the ejectment of the petitioner and recovery of arrears of rent. Rule 5 of O. XV of the Civil P.C. provides as below:- 'Rs.5. Striking off defence on failure to deposit admitted rent, etc. - (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent 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 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 date 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, paid to the lessor acknowledged by the lessor in writing signed by him 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. - (1) 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 deduction 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.) ON the first date of hearing i.e. 12.9.1991 the tenant deposited a sum of Rs. 300/- in the Court being the rent admitted by him to be due for the period April, 1991 to August, 1991. He was required to deposit the same with interest that amounted to Rs. 3.50. The petitioner's case is that since he was advised to deposit Rs. 300/- only, he deposited the same. Further deposits were made by the petitioner as below :- Sl. No. Date of deposit Amount Period of deposit 1. 1.11.1991 180/- Sept., 1991 to Nov., 1991 2. 28.12.1991 180/- Dec., 1991 to Feb., 1991 3. 22.5.1991 180/- Mar., 1992 to May., 1992 4. 29.8.1992 180/- June, 1992 to Aug., 1992 5. 31.12.1992 180/- Sept.,1992 to Nov., 1992 6. 27.2.1993 180/- Dec., 1992 to Feb., 1993 7. 14.5.1993 180/- Mar., 1993 to May, 8. 28.8.1993 180/- June 9. 10.11.1993 180/- Sept., 1993 to Nov., 1993 10. 22.4.1994 180/- Dec., 1993 to Feb., 1994 11. 20.5.1994 180/- Mar., 1994 to May, 1994 12. 24.8.1994 180/- June 13. 23.11.1994 180/- Sept., 1994 to Nov., 1994 14. 21.2.1995 180/- Dec., 1994 to Feb., 1995 15. 1.3.1995 125/- towards interest of all delayed deposits. 16. 7.3.1995 120/- Mar., 1995 to Apr., 1995 ;