- (1.) THE petitioner who is the de fendant in SCC Suit No. 22 of 1999 that had been filed by the landlord for ejectment and recovery of arrears of rent has filed this peti tion for setting aside the order dated 3rd Feb ruary, 2005 by which his defence has been struck off under Order XV, Rule 5 of the Code of Civil Procedure (hereinafter referred to the 'cpc')- He also sought the quashing of the order dated 20th November, 2007 passed by the Revisional Court by which the Revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887 for setting aside the aforesaid order dated 3rd February, 2005 was dismissed.
(2.) THE records indicate that during the pen dency of the Suit, an application was filed by the plaintiff- landlord for striking off the de fence of the defendant as the provisions of Order XV, Rule 5 CPC had not been complied with. THE application filed by the landlord was allowed by the order dated 3rd February, 2005 as it was found that the defendant had not deposited the monthly rent due during the continuation of the Suit. Learned counsel for the petitioner sub mitted that Rule 5 to Order XV CPC which was added in the State of Uttar Pradesh by U. P. Act No. 37 of 1972 ceases to have any force after the coming into force of The Code of Civil Procedure Amendment Act, 1999 (Act No. 46 of 1999) and The Code of Civil Proce dure (Amendment) Act, 2002 (Act No. 22 of 2002 ). He further submitted that in any view of the matter, he had made the deposits under Section 30 (1) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'act') and, therefore, it cannot be said that he had not deposited the monthly rent due during the con tinuation of the Suit as the said deposit was always available to the landlord. In order to appreciate the contentions advanced by the learned counsel for the petitioner, it would be necessary to refer to the provisions of Order XV, Rule 5 CPC. Rule 5 was added to Order XV in State of U. P. by U. P. Act No. 37 of 1972 and is as follows:- "order XV Rule 5 CPc Striking off defence for failure to deposit admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee after the determi nation of his lease and for the recovery from him of rent or compensation for use and oc cupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence. Explanation 1.- The expression "first hear ing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2.- The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calcu lated at the admitted rate of rent for the ad mitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in re spect of the building on lessor's account. (2) Before making an order for striking Off defence, the Court may consider any repre sentation made by the defendant in that be half provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plain tiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount depos ited includes any sums claimed by the deposi tor to be deductible on any account, the Court may require the plaintiff to furnish the secu rity for such sum before he is allowed to with draw the same. " It is the contention of the learned counsel for the petitioner that in view of the provisions of Section 16 (1) of Amendment Act No. 22 of 2002 and Section 32 (1) of Amendment Act No. 46 of 1999, Rule 5 of Order XV CPC which was added by the State of U. P. by U. P. Act No. 37 of 1972 ceases to have any effect and in support of his contention he has placed reliance upon the decision of two -; Hon'ble Judges of the Supreme Court in Ganpat Giri v. Second Additional District Judge, Ballia and Ors. , (1986) 1 SCC 615 : t (1986 All LJ 271) wherein Section 97 (1) of f The Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) which came into effect from 1st February, 1977 came-up-for interpretation. According to the learned counsel for the petitioner, Section 16 (1) of Act No. 22 of 2002 and Section 32 (1) of the Act No. 46 of 1999 are identical to the provisions of Section 97 (1) of Act No. 104 of 1976 and, therefore, the decision rendered in Ganpat Giri (supra) would equally apply in the present case. In Ganpat Giri (supra), the Supreme Court had examined the effect of Section 97 (1) of Amending Act No. 104 of 1976 on any amendment made or any provision in serted in the CPC by a State Legislature or High Court prior to the commencement of the Amending Act.
(3.) SECTION 97 (1) of Amending Act No. 104 of 1976 which came into effect from 1st Feb ruary, 1977 reads as under:- "any amendment made, or any provision inserted in the principal Act by a State Legis lature or a High Court before the commence ment of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. " The Supreme Court observed:-"there are three sub-sections in Section 97 of the Amending Act. A reading of section 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consist ing of sections and die First Schedule to the Code which contains orders and Rules. Sec tion 97 (1) of the Amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except in so far as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands re pealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i. e. , on February 1, 1977. The repealing provision in Section 97 (1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal be fore us. ";