J.C.Gupta, J. - (1.) By means of this writ petition, the tenant-petitioner has challenged the order dated 7.9.83 passed by respondent No. 1 in S.C.C. Revision preferred by the landlord against the order of the trial court dated 11.2.1981.
(2.) During the pendency of suit filed by the respondent No. 2 against the petitioner for rent and ejectment, the respondent No. 2 moved an application for striking off the defence" of the petitioner for non-compliance of the provisions of Order XV. Rule 5 of the Civil Procedure Code. The petitioner filed reply to the said application stating that since he has already deposited the entire rent due upto 31.3.81 under Section 30 (1) of U. P. Act No. XIII of 1972, petitioner's application deserved rejection. The trial court rejected the said application of the respondent No. 2 by the order dated 11.2.81. Aggrieved by that order, the landlord-respondent No. 2 preferred revision and the same has been allowed by the respondent No. 1 under the impugned order and the petitioner's defence has been struck off.
(3.) Learned counsel for the petitioner contended before this Court that the power to strike off the defence is discretionary and once the discretion had been exercised by the trial court in favour of the petitioner, the respondent No. 1 in revision should not have interfered. It was further contended by him that as per the finding of the trial court rent upto March. 1981, had been deposited by the petitioner under Section 30 (1) of the U. P. Act No. XIII of 1972, thus not only the entire rent claimed in the suit but also future rent upto March, 1981, stood deposited prior to the moving of applicalion for striking off the defence, therefore, there was neither any justification nor occasion for the revlsional court to have shut down the right of defence of the petitioner. On the other hand learned counsel for the respondent supported the impugned order contending that the revisional court has correctly reversed the Order of the trial court as there has been default in making deposits as contemplated under Order XV, Rule 5, C.P.C.;