- (1.) PRAKASH Krishna, J. Question ing the legality and propriety of the order dated 25th May, 2005 whereby the defence of the tenant has been struck off, the present. revision has been filed under Section 25 of the Provincial Small Causes Court Act. The factual matrix of the case qua the above controversy in brief is as fol lows:
(2.) THE Opp. party, Shyam Sundar Agrawal, instituted SCC Suit No. 1 of 2004 against the present applicant Chandan Singh, who is defendant in the said suit for recovery of damages for use and occupation of the disputed shop as well as ejectment of the defen dant on the pleas inter alia that for a period of 11 months, the plaintiff on February 20, 2003 let out the disputed shop, described at the foot of the plaint, on a monthly rent of Rs. 5, 000 to the defendant tenant, it was pleaded that the defendant tenant executed a rent deed for the aforesaid period of 11 months on the said date i. e. 20-2-2003. THE defendant having failed to hand over the vacant possession after the ex piry of the aforesaid period of 11 months, the necessity to file the suit arose after determining his tenancy by means of the notice date 13th of January, 2004. In reply, the defendant-applicant pleaded that the agreed rate of rent is Rs. 500 per month inclusive of house tax and water tax and he being semi literate executed the rent note on 20th of February, 2003, '"without under standing its purport and contents. He admitted the installation of electric con nection but pleaded that it was done with the knowledge and consent of the plaintiff. In additional pleas it has been pleaded that the defendant has taken the disputed shop on rent for carrying on the business of selling South Indian dishes under the name and style, of 'madras Dosa'. It has been further pleaded that a sum of Rs. 50, 000 was demanded towards the security by the plaintiff at the time of letting. The defen dant being unable to pay such a huge amount in lump-sum handed over signed blank stamp paper as also five post dated cheques of Rs. 30, 000 be sides Rs. 20, 000 in cash. The allegation that the shop was given for a fixed period of 11 months was denied with the plea that it was agreed upon that the defendant tenant shall continue as tenant so long he pays the rent. The suit is pending adjudication.
(3.) AN application purporting to be under Order XV Rule 5 C. P. C. (as amended in the State of U. P.) has been filed, giving rise to the present revision, by the plaintiff landlord on the allega tions that the defendant has mis represented that the monthly rate of rent as Rs. 500 while there is over whelming evidence by way of rent note, cheques, monthly receipts and the receipt counter-foils to show that the rent is Rs. 5000. The defendant having failed to deposit the rent at the rate of Rs. 5000 per month which was agreed rent between the parties, his defence is liable to struck off under Order XV Rule 5 C. P. C. . The tenant applicant, in reply, submitted that the said application is not maintainable as rent is Rs. 500 per month inclusive of house tax and water tax. It was further stated that the plaintiff has fabricated counter foils of the rent receipts and also the rent note. No such rent receipt was ever issued by the plaintiff to the defendant nor the defen dant has put his signature on the counterfoils. The Court below by the order under revision allowed the application of the plaintiff under Order XV Rule '5 C. P. C. and struck off the defence of the defendant tenant, who is applicant in the revision on the finding that the monthly admitted rate of rent was Rs. 5, 000. Challenging the aforesaid judg ment and order, the present revision has been preferred.;