S. K. Phaujdar, J. - (1.) THIS revision application was heard on the points of admission on 4.3.97. Shri Pramod Kumar Jain appeared for the defendant-revisionist while Shri Vivek Chaudhary for the caveator plaintiffs.
(2.) A suit was filed before the Xllth Additional District Judge, Meerut, having S.C.C. powers. The suit was registered as S.C.C. Suit No. 13 of 1996. The plaintiffs sued the defendant for rent, eviction and mesne- profit. An order was passed by the trial Judge to take up the matter ex parte as the defendant failed to put in a written statement This order was challenged in Civil Misc. Writ Petition No. 30111 of 1996 before this Court and Hon'ble M. Katju, J., directed the court below to accept his written statement and to proceed with the suit thereafter subject to the payment by the defendant of the entire amount of rent up to date within three weeks from 18.9.96. Certain deposits were made and adjustment of certain payments were claimed and a written statement was proposed to be filed. The trial court was faced with a question if the deposits/payments in terms of the direction In the writ petition had been made. By an order dated 13.12.96, the trial, court kept into consideration all payments and deposits claimed to have been made by the defendant and he came to the calculation that even after conceding all averments of the defence, there was a default in payment for a sum of rupees five thousand and odd. Accordingly, the trial court was of the view that the direction of the High Court had not been complied with and so the written statement could not be accepted and no change of hearing could be given to the defendant. The defendant challenged this order in the present revision to say that the trial court had not considered a payment of Rs. 9,000 made by the defendant as claimed in his application as per averments in paragraph 15 of the affidavit accompanying the writ petition. It was contended that the order of the trial Judge was passed on a palpably wrong appreciation of the materials placed before him and the order cannot be sustained. It was further stated that the date of the tenancy should have been calculated from fifteenth January, 1994 and not from 1st January and the applicant was required to deposit Rs.1,44,000 up to 15.9.96. In fact he had deposited/paid Rs. 1,47,608 and the High Court's order was fully complied with. In the impugned order, the court had given good reasons why he had accepted the date of commencements of the tenancy as 1.1.94 and why he had made a calculation of dues up to 7.10.96. It may be mentioned that the alleged deposit in terms of the order of the High Court was last made on 7.10.96. He calculated the total liability of the payment to the tune of Rs. 1,49,516.13. He had taken into consideration the claim of cash payment for which no receipt was on record. There was a denial of this cash payment of Rs. 9,000 by the plaintiffs on affidavit. There was no counter to this affidavit According to this calculation the plaintiff got a total sum of Rs. 1,34,108 only and a sum of Rs. 18,408.13 stood as a balance-default to be deposited by the defendant in terms of the High Court order. Even the alleged cash payment of Rs. 9,000 could not wipe out this default in full. The court below had met the argument of the defence regarding a sum of Rs. 4,500 and, conceding for the sake of the argument that such payment was made, the court below found that the outstanding balance was for more than Rs. 10,000. The court below even went to the extent of the conceding but not admitting, that the tenancy started from 15.1.94. Even then the default was not wiped out To say that for arguments sake, certain payments were accepted is one thing and to say that they were really made is another. To say again for the sake of the argument, that the tenancy started on 15.1.94 may not obliterate a positive finding that the tenancy really started on 1.1.94. The High Court on the writ petition directed payment up to date and that has been rightly interpreted as requiring a payment up to the date of the tender. The findings of the court below about the total sum due and that the total sum paid are based on proper calculation. These findings may not, therefore, he interfered with simply on the ground that to meet the argument of the defence, he conceded some points for the sake of the argument only, only to show that even thereafter the defence had no case to make out. I find no reason to interfere with the order of the Court below dated 13.12.96. The revision application stands dismissed.;