H.N.Seth, J. - (1.) THIS is a Defendant's second appeal in a suit for ejectment and recovery of arrears of rent.
(2.) PLAINTIFF 's case is that he is the landlord of house No. 328 old (580 New) Muthiganj, Allahabad and that the Defendant had been his tenant in a portion thereof on a monthly rent of Rs. 16/ -. The Defendant did not pay rent from 1 -6 -64 onwards. Consequently, a notice of demand was served upon him on 14th October, 1965. The Defendant, instead of paying the rent, sent a wrong reply. As the Plaintiff required the house for his personal use, he moved an application before the authorities under the U.P. Control of Rent and Eviction Act for permission to file a suit for Defendant's ejectment. That permission was granted on 5th September, 1966. The Defendant then filed a revision against the said permission which was rejected on 2nd January 1967. Thereafter, the plaintiff terminated Defendant's tenancy by serving upon him a notice of demand and by requiring him to vacate the premises within 30 days of receipt of notice. The Defendant neither paid the arrears of rent nor vacated the house in dispute, hence the present suit for ejectment and recovery of arrears of rent was filed. The Defendant contested the suit on the allegation that he always tried to pay the rent to the Plaintiff but the Plaintiff failed to accept the same. Consequently, the Defendant deposited the rent for the period 1 -6 -64 to 31 -8 -68 under Section 7 -C of the Control of Rent and Eviction Act. According to him the application for permission to file a suit for his ejectment made under Section 3 of the U.P. Control of Rent and Eviction Act, was not bona fide and the permission obtained by the Plaintiff was illegal. He also took up a plea that during the suit, proceedings seeking demolition of accommodation in question were initiated under Section 133 of the Code of Criminal Procedure. During those proceedings the Defendant, with the consent of the Plaintiff, made fresh constructions in the house in dispute and subsequently the proceedings under Section 133 Code of Criminal Procedure were dropped. This according to the Defendant, showed that the permission which had been obtained by the Plaintiff for filing a suit for his ejectment had become infructuous and inoperative.
(3.) THE suit which was originally filed in the year 1967 had somewhat chequered history and continued to be pending till the year 1972 when the U.P. Civil Laws Amendment Act, 1972 was passed and a new Rule 5 was added to Order XV of the Code of Civil Procedure. The newly added Rule 5 reads thus: (5) Striking off defence on non -deposit of admitted rent, etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the Defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act) the first hearing after such commencement, deposit the entire amount of rent, or compensation for use and occupation admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may unless after considering any representation made by him in that behalf allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his defence. Accordingly, on 1st December, 1972, the Plaintiff moved an application stating that as the Defendant neither deposited the entire rent and damages for the use and occupation before the first hearing of the suit after commencement of the 1972 Act nor did, he deposit the admitted rent every month thereafter, his defence should, as provided in Rule 5 quoted above, be struck off. The Defendant vide his application dated 5 -12 -1972 objected to the prayer made in the aforesaid application stating therein as follows: 2. That the Defendant after refusing to accept the rent claimed in the notice Rs. 432/ - by the Plaintiff has already deposited the sum in the court of Munsif West. Allahabad in the Misc. Case under Section 7 -C of U.P. Act 3 of 1947. 3. That the Defendant being an old man and has been ailing for a long time and as such he wants one month's time to deposit the rent for which he is prepared to furnish the security.... The trial court, vide its order dated 6th December 1972 held that the Defendant had failed to deposit the arrears of rent and damages as required by the newly added Rule 5 and declined to grant him any further time for furnishing security. In the result it struck off the defence of the Defendant.;