- (1.) POONAM Srivastava, J. Heard learned Counsel for the revisionist Sri Manish Nigam Advocate has filed Vakalatnama on behalf of plaintiff-respondents.
(2.) THIS revision has been filed against the order dated 24-3-2005 passed by Judge Small Causes Court/special Judge N. D. P. S. Act, Ghaziabad in SCC Suit No. 51 of 2002, Abhishek and Anr. v. Smt. Indu Khanna, whereby the plaintiffs' application under Order XV Rule 5 CPC has been allowed and the revisionist's defense has been struck down. The defendant has stated that after the SCC suit was instituted, the rate of rent claimed by the landlord was Rs. 3500/- per month alleged to be due from 20- 10- 2001 to 16-6-2002 and the tenant is defaulter. Inspite of service of the notice under Section 106 of the Transfer of Property Act, neither the rent nor the vacant possession was handed over to the plaintiffs. The revisionist filed her written statement denying the plaint allegation and also the rate of rent was claimed Rs. 1500/- per month. It was further pleaded in the written statement that the rent till June 2001 has already been tendered and the amount claimed to be due is incorrect. The revisionist had gone out and when she came back on 26-1-2004 she found that she was forcibly evicted behind her back. The Court was also informed about the said incident on 29-1-2004 by means of an application. During the pendency of the suit, the plaintiff-respondents moved an application for striking off the defense which has been allowed by means of the impugned order. The submission on behalf of the revisionist is that the rent was tendered to the plaintiffs for which no rent receipt was issued and nothing is due. Besides, she has already been evicted behind her back on 26- 1-2004 and the Court committed an illegality while striking off the defense of the revisionist- tenant. It is further submitted that the Court has fixed a date on which the suit will be decreed, in the event, the order impugned in this revision is not set aside. The tenant is already out of occupation and has no intention to contest the suit but in the event, the suit is decreed at the rate of Rs. 3500/- per month she will have to pay the said amount which is not the 'agreed rent'. Emphasis laid by the Counsel for the revisionist is that the provisions of Order XV Rule 5 CPC speaks about the agreed rent but in the instant case there is nothing to establish that the agreed rent was Rs. 3500/- per month. Sri Manish Nigam has controverted all the arguments of the Counsel for the revisionist. It is argued on behalf of the landlord that the claim of the tenant that the entire amount of rent was tendered and nothing is due, is without any basis. The bald assertion in the written statement cannot be accepted. Admittedly, the suit was instituted in the year 2002 and the appearance was filed in the year 2003. Thereafter neither any deposit was made under Section 20 (iv) of the Act No. 13 of 1972 or under Order XV Rule 5 CPC. This fact has been countered by the Counsel for the revisionist stating that the proceedings were continuing ex parte and there was already an order to proceed ex parte against the revisionist-tenant. When she came to know about this order, an application was moved to recall the order to proceed ex parte and this application was allowed. After hearing the respective Counsels and going through the record the admitted position in the instant revision is that the suit was instituted in the year 2002 and after the Court had ordered to proceed ex parte, an application was moved to set aside the order. Admittedly, the appearance was filed in the year 2003 but there is not a single document in support of the contention that the rent was tendered or was deposited to the landlord. Assuming that the rent, according to the tenant is at the rate of Rs. 1500/- per month, it was the burden of the tenant to have come forward with certain documents, receipts, money order receipt or any tender from applying for deposit of rent under the relevant provisions. It can, therefore, safely be concluded that after filing the appearance in the year 2003, the tenant did not deposit any rent whatsoever and, therefore, she is not entitled for any relief. The Judge Small Causes Court while allowing the application 50-Ga for striking off the defense has placed reliance on a number of decisions, Tulsi Ram Gupta v. IXth Additional District Judge Kanpur and Ors. , ARC 1994 (2) 138, Archana Goyal v. J. S. C. C. , 2002 (1) JCLR 54 (All) : 2001 (2) ARC 127 and S. Abal v. District Judge and Ors. , AIR 1980 Alld. 302. The tenant has admitted that no effort was made on her part to deposit the rent and fulfill the requirement under Section 20 (iv) of the Act No. 13 of 1972 and also month to month deposit, therefore, the impugned order dated 24-3-2005 does not call for any, interference. The Court below has committed no illegality in striking off the defense.
(3.) FOR the reasons discussed above, this revision lacks merit and is accordingly dismissed. Petition dismissed. .;