K. N. Singh, J. - (1.) THIS revision application under Section 115 of the Code of Civil Procedure had been preferred by the defendant against the order of the trial court striking off his defence u/Or. XV Rule 5 CPC and also against the order of the District Judge affirming that order in revision.
(2.) THE plaintiff opposite party filed suit for recovery of arrears of rent and ejectment against the defendant applicant with the allegations that inspite of repeated reminders and service of notice of demand, the defendant-applicant had failed to pay arrears of rent for the period 1-5-1970 to 1-11-1970. THE defendant contested the suit and asserted that he was not a defaulter he has been offering rent to the plaintiff but she refused to accept the same. He tendered the rent to the plaintiff by money order but on her refusal, he had deposited the same in the Munsif's Court in proceedings under Section 7-C of the U. P. Act No. Ill of 1947. THE defendant further asserted that on receipt of notice of demand, they again tendered rent to the plaintiff-opposite party through money order for the period May, 1970 to November 1970 but she again refused to accept the same. THE defendant thereafter deposited the rent in the Munsif's Court and he has continued to deposit rent and nothing was due from him. THE plaintiff did not file any objection in the Munsif's Court and he is entitled to withdraw the amount deposited by the defendant. The plaintiff made an application before the trial court for striking off defendant defence on the ground that the defendant had failed to make the necessary deposit as contemplated by Order XV Rule 5 CPC. The defendant contested the application and asserted that since he had already deposited the entire amount of rent in proceedings under Section 7-0 of U. P. Act. No. Ill of 1947, nothing was due from him and his defence could not be struck off. The trial court held that any deposit made by the defendant in proceedings under Section 7-0 of 1947 Act could not enure to his benefit in the suit for the purpose of Order XV Rule 5 CPC. On these findings, the trial court struck off the defence. On revision by the defendant, the District Judge affirmed the trial court's order. The learned District Judge affirmed the order of the trial court on two grounds, firstly, that during the pendency of the suit, U. P. Act. No. XIII of 1972 came into force as a result of which proceedings under Section 7-C of 1947 Act could not be taken and the defendant could not make any deposit in those proceedings, instead he should have taken proceedings under Section 30 of the U. P. Act No. 13 of 1972. Since the defendant did not make any deposit under Section 30 of the 1972 Act, the deposit made by him in Section 7-C proceedings could not be taken into account. Secondly, the learned District Judge held that any deposit made by the defendant in Section 7-0 proceedings, even if valid, could not be taken in to account for the purpose of Order 15 Rule 5 CPC.
(3.) LEARNED counsel for the defendant-applicant urged that the courts below acted in excess of their jurisdiction in striking off the defence as nothing was due from the defendant and he had made no such admission in the written statement the provision of Order 15 Rule 5 CPC were not attracted. In Ladly Prasad v. Ram Shah Billa, 1975 AWC 602, a Division Bench held that if the defendant does not admit that any amount is due to the plaintiff as rent or damage for use or occupation it need not make any deposit. At that stage, the court is not required to decide the question whether any amount is really due and whether the lease has validly been terminated. The court cannot compel the defendant to deposit >the amount claimed by the plaintiff if the defendant does not admit any amount due from him. Order XV Rule 5 CPC as applicable in the State of U. P. confers jurisdiction on the court to strike off defence in a suit by lessor for eviction of lessee from an immoveable property if the defendant fails to deposit the entire amount of rent or compensation for the use and occupation admitted by him to be due at or before the first hearing of the suit and he further continues to deposit the rent or compensation for use and occupation at the rate admitted by him. It is significant to note that the deposit is required to be made only if the lessee admits the amount to be due from him. If the lessee, for any reasons, does not admit the amount, to be due from him, the question of striking off defence on his failure to make the deposit will not arise. The question of striking off defence arise only in the case where the defendant admits that rent was due to the plaintiff. In the instant case, the defendant had clearly asserted in his written statement that he had deposited the entire rent in the Munsif's Court in proceedings under Section 7-C of 1947 Act and, nothing was due from him. In view of this assertion, there was no admission by the defendant. On these facts Order XV Rule 5 CPC was not attracted at all and the courts below exceeded their jurisdiction in striking off the applicant's defence.;