K. N. Singh, J. - (1.) THIS is a defendant's revision application under Section 115 Civil Procedure Code challenging orders of the courts below striking off his defence under Order XV Rule 5 of the Code.
(2.) THE plaintiff-opposite party filed a suit for recovery of Rs. 155/- as arrears of rent and ejectment. THE defendant contested the suit. He denied that be was defaulter in payment of rent or that any rent was due from him. He asserted that he had paid a sum of Rs. 100/- towards rent for the period 20th March, 1970 to 19th July, 1970 to Brahm Bala Prasad Nigam a clerk of the plaintiff who promised to issue receipts but he failed to do so. THE defendant further pleaded that under an agreement with the plaintiff, the defendant had constructed a pucca cemented room in the disputed premises and spent Rs. 3000/- on the said construction. THE plaintiff had agreed for adjustment of the said amount towards rent. During the pendency of the suit the plaintiff made an application for striking off the defence under Order XV Rule 5 on the ground that the defendant had failed to deposit the arrears of rent and he had further failed to deposit monthly rent as and when due during the pendency of the suit. THE trial court upheld the plaintiff's contention and struck off the defence under Order XV Rule 5. On revision, the first Additional District Judge, Kanpur, upheld the trial court's order. Hence this revision. After hearing learned counsel for the parties, I find that the courts below have acted with material irregularity in exercising their jurisdiction in striking the ' defence of the defendant. Order XV, Rule 5 as amended by U. P. Act 37 of 1972, lays down that in a suit by the lessor for eviction of a lessee after determination of his lease and for the recovery of rent from him, the defendant shall at or before the first hearing of the suit deposit the entire amount of rent or compensation for use and occupation admitted by him to be due from the lessor and he shall continue to deposit the same during the pendency of the suit. In the event of any default, the court is invested with power to strike off the defence of the lessee. Striking off defence of a party entails serious consequences, it is penal in nature. The legislature has taken care to provide that this penalty should be imposed against the lessee only if he admits the liability to pay rent or compensation, but fails to deposit the same. In a case where the lessee does not admit his liability and contends that no amount of rent or damages was due from him court has no jurisdiction to strike off his defence. The question whether any amount as claimed by the lessor was due from the lessee or not should be decided along with the merits of the case. It is not open to the court to strike off defence on a prima facie satisfaction that the lessee's denial did not appear convincing. The defendant-lessee's claim may later on be found incorrect and in that case it is open to the court to pass a decree for the amount due from him but if the defendant expressly asserted in his written statement that no amount as claimed by the lessor was due, the court has no jurisdiction to strike off his defence on the ground that the averments contained in the written statement do not appear to be true. In the instant case, the defendant-applicant's defence was struck off by the trial court on the finding that there was no prima facie evidence that the amount claimed by the plaintiff was not due from the defendant. The learned District Judge committed error in upholding the trial court's order.
(3.) IN the result, I allow the revision and set aside the orders of the courts below. The trial court is directed to hear and decide the case on merits in accordance with law. The applicant is entitled to his costs. Revision allowed.;