- (1.) B. M. Lal, J. This revision is directed against the impugned order dated 16-9-1989 passed by Sri S. K. Malviya, Judge, Small Causes Court IVth Additional District and Sessions Judge, Jhansi whereby the defence of the applicant/tenant/revisionist has been struck of.
(2.) THE short facts leading to this revision as well as subsequent reference to this Bench made under Chapter V, Rule 6 of the Rules of the Court; are as under: One Ramanand and an other, landlords of Shop No. 64/2, Khatriyana Jhansi let out the shop to the applicant Bal Krishna at the rate of Rs. 300/- per month and ultimately brought an action against Bal Krishna for his eviction inter alia on the ground that Bal Krishna has not paid rent since 1-12-86 inspite of demand notice dated 18-2-88 which was served on him on 1-3-88. THE said suit was filed under the provisions of U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972. During the pendency of the suit an application was moved on behalf of Ramanand and others, the plaintiffs under Order XV, Rule V, (Allahabad Amendment) of the Code of Civil Procedure for striking of the defence of the defendant Bal Krishna and the same has been allowed by the impugned order and the defence has been struck of. Hence this revision. The revision came to be listed before the learned Single Judge on 15-3-90 before whom it was argued that during pendency of the suit after commencement of the stage of recording the evidence, the application as framed and filed for striking of the defence in terms of Order XV, Rule V of the Code was not maintainable and in support thereof a decision of this Court rendered in the case of Raiendra Pal Garg and Others v. 1st Additional District Judge, Dehradun and Ors. , 1987 (2) A. R. C. 289 was cited wherein it is held that the power of striking off the defence cannot be exercised after the closure of the evidence of the plaintiff. Learned Single Judge of this Court having considered the ratio of Gargs case (supra) expressed his opinion that the view taken in Garg's case (supra) requires reconsideration by a larger Bench, there fore, the papers were placed before Hon'ble the Chief Justice for nominating the Bench upon which this Bench was nominated by Hon'ble the Chief Justice by order dated 31-8-92. No doubt while referring the matter to the Chief Justice for constituting the larger Bench, no specific question for determination by the larger Bench was framed. Despite that whether the reference as made may be construed to be a question which may be answered by this Bench and then the revision may be sent to the learned Single Judge for decision, is to be determined in the light of the provisions of Chap ter V, Rule 6 of the rules of the Court which reads as under: "6. Reference To A Larger Bench.- The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining question if any arising therein. "
(3.) THE provision of Rule 6 deals with two contingencies. First contingency is, if the larger Bench is constituted to decide a case and the second contingency is, if the larger Bench is constituted to decide any question of law formulated by a Bench hearing a case. In the latter event i. e. in the second contingency where the larger Bench is constituted to decide any question of law, the decision of larger Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case. The reference order passed by learned Single Judge reads as under: "this revision involves the question of interpretation of the provisions of Rule 5 of Order XV of the Code of Civil Procedure, 1908, as applicable in the State of Uttar Pradesh, in relation to the power of the Court to strike off defence where the defendant commits default in making the deposit of the monthly amount due during the continuation of the suit after the closure of the evidence of the plaintiff. A learned single Judge of this Court has, in the decision rendered in the case of Rajendra Pal Garg and Others v. 1st Addl. Distt. Judge, Dehradun and Others, reported in 1987 (2) A. R. C. 289, held, in substance, that the power of striking off the defence cannot be exercised after the closure of the evidence of the plaintiff. This view does not appear to be free from doubt and requires consideration by a larger Bench. Let the papers, therefore, be laid before the Hon'ble the Chief Justice for appropriate orders. ";