- (1.) N. L. Ganguly, J. These revisions under Section 25 of the Provincial Small Cause Courts Act are directed against the orders dated 22. 4. 1993 by which the Vth Additional District Judge, Meerut exercising power of Judge Small Causes Court decided the matter under Order XV, Rule 5, C. P. C. , as amended in U. P.
(2.) THE suits were filed by the plaintiff landlord of the accommodation in question. She claimed arrears of rent by notice, dated 20. 4. 1987. THE notice was served. A reply of the notice, was given. During proceeding in the suit the question of striking off the defence of the defendant was taken before the Court. THE defendant-applicant in the suit filed a written statements denying the relationship of the landlord and tenant between the parties. It was said that the accommodation in question was let out by Sri P. K. Kulshreshtra, who is the father of plaintiff-respondent. It was said that the rent for the accommodation in Civil Revision, No. 416 of 1993 was Rs. 700 per month and the rent of accommodation in question in Revision No. 417 of 1993 was Rs. 400/- per month as pleaded by the plaintiff. THE defendant had denied this plea and said that it was one tenancy and the total rent for both the accommodation was 700/- and not Rs. 700/- and 400/- separately. On the first date of hearing, after filing of the written statement the amount due was not deposited by the tenant in both the suits, the application for striking off the defence was considered by the Court below. It is pertinent to note that the notice of demand was admittedly served on the applicant. In reply to the notice, copy of which is of the record and was also before the Court below. No allegation or such fact was stated that there was no relationship of landlord and tenant between the defendant and the present plaintiff in the reply of notice for demand. The plaintiff had filed the agreement entered into between the parties showing that there are two separate accommodations and two separate tenants in possession of the defendant. The agreement has been denied in the written statement but it has not been said that it is forged document. Only it has been said that it is a fictitious one Important to note is that Sri P. K. Kulshreshtra is attesting witness in the agreement. The plaintiff in the suits filed receipts and copy of agreement. The Court below after considering the evidence already on record adduced by the parties was of the opinion that the defendant have failed to comply with the requirements of the Order XV, Rule 5, C. P. C. as amended in U. P. The Court below was prima facie satisfied that there exists the relationship of landlord and tenant between the parties. Learned counsel for the applicant submitted that during the pendency of the suits the applicant have deposited Rs. 1,000/- each by three Bank Drafts and two Bank Drafts of Rs. 26,000/- and Rs. 27,000/- respectively in the name of Sri P. K. Kulshreshtra. Learned counsel submits that since the amount was deposited by Bank Drafts in his name it becomes clear that Sri P. K. Kulshreshtra is the landlord. It has not been shown that the amount said to have been deposited by Bank Drafts, the Bank Drafts were actually tendered to the Bank or were ever encashed by Sri P. K. Kulshreshtra. Learned counsel for the applicant relied on a number of decision, namely 1983 (2) ARC 419 - Maqsood Ah v. Shamsher Khan, for the proposition that where the relationship of landlord and tenant is denied, the Court is to decide that issue first as preliminary issue about the relationship existed and compliance of Order 15, Rule 5, C. P. C. is not made, then only defence could be struck off. Learned counsel for the applicant submitted that it was incumbent and mandatory for the Court below to give opportunity to the tenant applicant for adducing evidence to prove the defence set up. It is submitted that no opportunity was given to the applicant for leading evidence. Thus the finding recorded by the Court below is wholly unwarranted. Neither there is any such ground before the trial Court nor any request was made for filing documents. The record shows that the documents available with the defendant-applicants were filed. The Court below did not determined the same for arriving prima facie conclusion on the- basis of material available on record for the plea in defence set up by defendant, the authorities cited by the learned counsel are of no assistance. Learned counsel for the applicant cited decision reported in AIR 1981 SC 1957 - Bimal Chand Jain v. Gopal Agarwal, wherein the apex Court observed that striking off defence on failure to deposit the admitted rent and further failure to make representation within the terms of Order XV Rule 4, the Court still has discretion not to strike off defence if on facts and circumstances already existing on record there is good reason for not doing so. Learned counsel for the applicant submitted that Order XV, Rule 5, C. P. C. is not to be used for estopping the defendant tenant from raising a genuine ground for not ousting the tenants at the instance of the landlord. Learned counsel for the applicant may be correct but in the present case the Court below did not examine the document available on record for holding that there was a relationship of landlord and tenant between the plaintiff and defendant and the defendant failed to deposit the amount. Still it granted tie to the defendant- tenant for depositing the amount within a month from the date of the order. Thus learned counsel for the applicant submitted that landlord cannot utilise the Order XV, Rule 5 C. P. C. coercing the defender/ tenant and ousting him from the house in question at each and every cost.
(3.) THE Court was pleased to grant one month time on 22. 4. 1993 and the applicant instead of complying with the said order came to this Court challenging the said order and the revision was filed on 27. 8. 1993 practically about four months from the date of the order. This shows that there was no bona fide on the part of the applicant. However, the Court below was pleased to direct the applicant to deposit the entire amount of rent. Learned counsel for the applicant states that for both the revisions rent at the rate Rs. 700 has been deposited by the applicant. Learned counsel for the respondent cited a decision reported in 1994 (2) ARC 554 - Jai Chandra Gangwar v. IIIrd Additional District Judge, Farrukhabad and others and placed reliance on paragraph 3 of the lodgment by which it was said that mere denial in the written statement of the relationship of landlord and tenant, the petitioner was absolved of the liability to deposit the rent, is not sustainable. The Court is required to see whether there was bona fide denial of such relationship between the parties and not mere camouflage. Learned counsel for the respondent also cited another decision reported in 1992 (2) ARC 82 - Smt. Satya Kumari Kamthan v. Noor Ahmed and others, where the Hon'ble Supreme Court considered the earlier Supreme Court case of 1981 ARC 463 (SC) - Bimal Chand, Jain v. Gopal Agarwal and was pleased to observe that when default committed in payment of monthly rent in absence of application for extension of time the defence was liable to be struck off. This judgment is relevant on the subject and is of no assistance for adjudication of the present revision for its own facts. After hearing learned counsel for the parties since both the Revisions No. 416 and 417 of 1993 are connected and between the same parties and controversy is common and are being decided by this judgment. Both revisions are without merit and call for no interference under Section 25 of the Provincial Small Cause Courts Act. However, it is made clear that since this Court had stayed further proceeding in the suit after taking cognizance in the revision application and the order of the Court below was not complied with I consider that in the interest of justice the judgment of Court below needs modification. One month time granted by the Court below for depositing the entire amount due in both the suits which has not been complied and the revisions remained pending. Further proceedings in the suit was stayed by this Court. The tenant-applicant deserves some time for depositing the entire amount at the rate claimed in plaint with interest etc. costs as contemplated in Order XV, Rule 5 C. P. C. which is being extended for a month from today. Any amount already deposited shall be adjusted while depositing amount in the Court below. The Court below shall take into account and examine whether the Bank Drafts in name of Sri P. K. Kulshreshtra was encashed by the landlord-opposite party. The entire amount if deposited within a period of one month the Court below and current monthly rent upto date it shall proceeded to decide the case expeditiously if possible in one year. The applicant shall continue to deposit the rent in accommodation every month for complying the Proviso of Order XV Rule 5, C. P. C. in case of non- compliance of the above conditions the defence shall stand struck off and the Court below shall proceed accordingly expeditiously. Both the revisions are partly allowed and the order of Court below is modified accordingly. Revision partly allowed. .;