- (1.) The defendant No. 1 of SCC Suit No. 16 of 2005 has filed this petition for setting aside the judgment and order dated 27th October, 2006 passed by the learned Judge, Small Cause Courts, whereby the application filed by the plaintiff under Order XV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC ) was allowed. The petitioner has also sought the quashing of the judgment and order dated 20th February, 2008 by which the Revision filed for setting aside the aforesaid judgment and order was dismissed.
(2.) The records of the writ petition indicate that the aforesaid SCC Suit No. 16 of 2005 had been filed by the plaintiff for eviction and recovery of arrears of rent. It was alleged that the rent for the period commencing from 1st November, 2003 was not paid as a result of which the plaintiff sent a notice under Section 106 of the Transfer of Property Act for determining the tenancy as well as for demanding the arrears of rent but as neither the possession of the premises was given to the plaintiff and nor the defendant paid the arrears of rent, the suit was filed claiming possession of the suit premises as also arrears of rent for the period commencing from 1st November, 2003. The suit was instituted on 11th May, 2005. The defendant put in appearance on 28th May, 2005 and the written statement was filed on 3rd September, 2005. The plaintiff moved an application under Order XV Rule 5 CPC on 18th January, 2006 for striking off the defence as the requirement of Order XV Rule 5 CPC had not been complied with. Defendant No. 1 filed a reply to the aforesaid application on 18th May, 2006 but did not comply with the requirements of Order XV Rule 5 CPC. The case taken by the defendant was that he was ready to pay the balance amount, if any, after adjusting the loan amount of Rs. 20,000/-. According to the defendant, the plaintiff took a loan of Rs. 20,000/- from him which loan was to be returned in the month of January, 2005 after adjusting the rent payable upto that period. There is no written agreement between the parties to the said effect and nor any rent receipts were filed for the said period. It is only on 18th October, 2006 that the defendant deposited a sum of Rs. 29,336/-. The learned Judge, Small Cause Courts allowed the application filed by the plaintiff who has been arrayed as respondent No. 1 in the present petition and the Revision filed for setting aside the aforesaid order was dismissed.
(3.) I have heard learned Counsel for the petitioner and have examined the materials available on record.;