Prakash Krishna, J. - (1.) The petitioner who is a tenant has challenged the judgment and orders of the two Courts below, striking off his defence under Order XV, Rule 5 C.P.C. as amended in the State of U.P.. The respondent NO. 23 is the owner and landlord of the tenanted property, instituted SCC suit No. 27 of 1988 against the present petitioner for ejectment, recovery of damages etc. on the pleas inter alia that the provisions of U.P. Act No. 13 of 1972 are not applicable. The said suit is still pending. An application dated 10th of November, 1994 under Order XV, Rule 5 C.P.C. was filed before the trial Court on the allegation that the defendant tenant has not deposited the damages after 31st of August, 1991 and as such his defence is liable to be struck off. The said application has been allowed by the trial Court by the judgment and order dated 19th of August, 1994 which was confirmed in SCC revision No. 241 of 1994 by the judgment and order dated 7th of March, 1995 on the finding that the tenant has deposited the amount at his own convenience in lump sum with delay and there is no explanation on his behalf nor he has filed any representation either for condonation of delay in making the deposit or extending the period for making the deposit. In the absence of any cause for not depositing any amount as provided for under Order XV, Rule 5 C.P.C. month by month, the defence has been struck off. Feeling aggrieved against the aforesaid two orders the present writ petition is at the instance of the tenant.
(2.) The learned Counsel for the petitioner submitted that the petitioner tenant has admittedly deposited the amount with delay and keeping in view of the object of the Order XV, Rule 5 C.P.C., the Courts below have mechanically passed the impugned orders. In contra, the learned Counsel for the respondent submitted that the Courts below have rightly struck off the defence of the petitioner.
(3.) I have given careful consideration to the respective submission of the learned Counsel for the parties. It has come on the record that the damages for the period 1st of March, 1990 to 31st of August, 1991 was deposited on 17th of July, 1991. The damages from 1st of September, 1991 to 31st of December, 1993 was deposited on 8th of October, 1993. Damages for the period of 1st of July, 1994 to 30th of September, 1994 was deposited on 5th of July, 1994 and from 1st of January, 1994 to 30th of June, 1994 it was deposited on 13th of May, 1995. There is no dispute with regard to the above deposits made by the petitioner tenant. There is also no dispute that in reply to the application filed by the petitioner for striking off defence, no representation either by way of counter affidavit or objection was preferred by the petitioner for extending the time and condonation of delay in making the aforesaid deposit. Nor there is anything on record to show that there was any cause which prevented the petitioner tenant in making deposit of damages/rent month by month as required under Order XV, Rule 5 C.P.C. It is axiomatic from the various deposits made by the petitioner that he made the deposits according to his sweet will and convenience with utter disregard to the provisions of Order XV, Rule 5 C.P.C.;