- (1.) RAKESH Tiwari, J. Heard learned Counsel for the parties and perused the record.
(2.) THE facts of the case, in brief, are that the petitioner filed an S. C. C. Suit No. 7 of 1993 for a decree of ejectment of the defendant-respondent No. 2 from House No. 272, Chowki Gate, Firozabad and recovery of Rs. 2946. 50p. as arrears of rent besides arrears of water tax etc. from him on 27-3-1993. Written statement was filed by respondent No. 2 on 4-5-1994, inter alia, that he had remitted the rent to the petitioner for the period 15-1-1998 to 14-1-1990 through money order but the same having been refused by him, he was left with no option but to file an application under Section 30 (1) of U. P. Act No. 13 of 1972 which was registered as Misc. Case No. 17/90, Ambika Prasad v. Inder Datt Sharma. The application was allowed and the respondent was depositing the rent in Court in the aforesaid Misc. Case No. 17/90 pending in the Court of the then Munsif, Firozabad. It was also stated that he had not committed any default in the payment of rent. The petitioner moved an application under Order XV Rule 5 C. P. C. for striking off the defence of the respondent on the ground that since he had not complied with the provisions of Order XV Rule 5 C. P. C, therefore, he was not entitled to its benefits. Objection was filed by the respondent reiterating that he had deposited the rent under Section 30 (1) of U. P. Act No. 13 of 1972 in Misc. Case No. 17/90 and as such he is entitled to the benefit of Section 30 (1) of U. P. Act No. XIII of 1972. It appears from the record that respondent No. 2 moved an application/representation dated 10-2- 1998 under Order XV Rule 5 C. P. C. before the trial Court praying that the same be decided first before deciding the application of the petitioner under Order XV Rule 5 C. P. C. and the delay, if any, be condoned. The petitioner filed objection alleging that the defendant-respondent has complied with neither the first part nor the second part of Order XV Rule 5 C. P. C. nor he had shown any cogent and convincing reason for non-compliance thereof. The trial Court by order dated 4-5-1998 rejected the representations filed by the respondent under Order XV Rule 5 C. P. C. for deciding the same first before deciding the application of the petitioner under Order XV Rule 5 C. P. C. for striking off the defence of the defendant and condone the delay, if any. The trial Court rejected the aforesaid representations of the respondent holding that respondent No. 2 had neither complied with first part nor with second part of the provisions of Order XV Rule 5 C. P. C. nor sufficient cause had been shown by him for non-compliance thereof. It was also held that the deposits were not made within the time in S. C. C. Suit No. 7/93. The finding of the trial Court is as under: ...[VERNACULAR TEXT OMITTED]...
(3.) WHILE allowing the application of the petitioner for striking off the defence of the respondent, the trial Court has held that the respondent had not deposited the rent in time. Moreover, he has not deposited the rent by 11-3-1994, which was the first date of hearing. It is also submitted that the representation of the defendant dated 10-2-1998 was made beyond time which ought to have been submitted by him on 11-3-1994, hence the representation was time-barred. The Court noted that apart from the tender on the file, from the record also it is revealed that the respondent had not been depositing the rent month to month within time and that he had deposited the rent for the period from 15-6-1993 to 14-8-1994 amounting to Rs. 1,190/- while the rent for the period 15-6-1993 to 16-7-1996 had been paid in Misc. Case No. 17/90 and from 17-7-1996 to 15-2-1998 remained unpaid including which the respondent had to deposit Rs. 2,100/ -. The aforesaid deposits itself shows that the respondent was in arrears of rent even during the pendency of the suit as he had neither filed any application for condonation of delay nor acceptance of rent for the aforesaid period within time. Even thereafter he had not deposited full rent as he only deposited the rent for the period 16-7-1997 to 15-2-1998 on 9-2-1998 at the rate of Rs. 595/ -.;