V.K.Shukla - (1.) -Petitioner who is practising advocate has filed present writ petition for quashing of the order dated 19.8.2008, passed by Special Judge E.C. Act, Allahabad striking off defence of the petitioner in exercise of authority vested under Order XV, Rule 5 of Code of Civil Procedure and further prayer has been made for deciding various applications moved on behalf of the petitioner and for framing issue in suit.
(2.) BRIEF background of the case as is reflected from the writ petition that petitioner is tenant of respondents No. 2 and 3 for the rent of Rs. 1,800 per month since October, 2001. Petitioner has stated that landlord was interested in increasing rent and to evict the petitioner, in this background he was constrained to file Suit No. 729 of 2003. Petitioner has contended that as counter blast to the said proceedings notice dated 28.11.2003 was sent terminating his tenancy. Petitioner has stated that he filed detailed reply and then Eviction suit was not filed after expiry of period of notice and inter se parties compromise was entered on 5.1.2004. Petitioner has further stated that term and condition of compromise was not respected and suit for eviction was filed being Eviction Suit No. 11 of 2004 without any cause of action. Written statement was filed on 20.4.2004. Petitioner has contended that an application under Order XV, Rule 5 of Code of Civil Procedure was moved on 12.1.2005 whereas rent was duly received. Petitioner has tried to contend that lease deed was also fabricated and filed on 12.1.2005. Petitioner has contended that he objected to the said application by contending that rent was being regularly paid. Petitioner has stated that various dates were fixed in the matter and said application was not pressed as talks of compromise was going on. Petitioner has tried to contend that landlord-plaintiff No. 2 has received rent by way of cash on 8.11.2005 for month of October, 2005 up till December, 2007 and prior rent and subsequent was received by him through money order and by challan. Petitioner has thereafter contended that as false affidavits have been filed, application under Section 340, Cr. P.C. has also been moved and details of negotiation which took place in between to settle the matter amicably has also been mentioned. Application under Order XV, Rule 5 of Code of Civil Procedure had been pressed and therein specific stand was taken that rent in question was not being paid. Petitioner gave details of entire payment. Thereafter application moved under Order XV, Rule 5 of Code of Civil Procedure has been allowed, defence of petitioner has been directed to be struck off which is subject-matter of challenge before this Court. Sri Salil Srivastava, the petitioner, who appeared in person, contended with vehemence that in the present case provisions of Order XV, Rule 5 of Code of Civil Procedure were not at all applicable as simple suit has been filed for recovery of rent, arrears of rent and damages for the use of occupation and it is not suit for eviction of a lessee by a lessor from any immovable property after the determination of the lease as such order could not have been passed. Coupled with this provisions of Order XV, Rule 5 of Code of Civil Procedure are directory in nature and here amount in question has been paid by way of cash as such view which has been taken is totally incorrect view and unsustainable view, as such writ petition in question deserves to be allowed. Sri Ravi Kant, senior advocate appearing for landlord on the other hand countered the said submission by contending that here suit for eviction has been filed after determination of lease and seeing the backdrop of the case it is impossible to conceive that amount in question has been paid by way of cash and no receipt had been issued in lieu of the same and admittedly there is default in making payment of monthly rent, as said amount in question has never been paid in cash, in this background discretion in question has rightly been exercised in the facts of the present case as such no interference whatsoever be made, and writ petition be dismissed.
(3.) IN order to appreciate respective arguments which have been advanced on behalf of the parties provision of Order XV, Rule 5 of Code of Civil Procedure as it is applicable to the State of Uttar Pradesh is being looked into : "Order XV, Rule 5 of Code of Civil Procedure :[Uttar Pradesh].-IN its application of State of Uttar Pradesh add the following Rule 5 : 5. 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 determination of his lease and for the recovery from him of rent or compensation for use and occupation, 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 hearing' 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, calculated at the admitted rate of rent for the admitted 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 respect of the building on lessor's account. (2) Before making an order for striking off defence the Court may consider any representation made by the defendant in that behalf 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 plaintiff : Provided that such withdrawal shall not have the effect to prejudicing any claim by the plaintiff disputing the correctness of the amount deposited : Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same." A perusal of the aforesaid provision of Order XV, Rule 5 of the Code of Civil Procedure shows that the said provision is applicable to any suit filed by a lessor for eviction of a lessee from an immovable property after determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during continuance of the lease or of compensation for the use and occupation thereof after the determination of the lease.;