- (1.) PRESENT Civil Revision has been filed questioning the validity of the order dated 14. 11. 2008 passed by Sri Amitabh Sahai Additional District and Session Judge, FTC Gautam Budh Nagar in JSCC Suit No. 9 of 1007 whereby application under XV Rule 5 of Code of Civil Procedure filed by plaintiff has been allowed and defence of defendant has been struck off.
(2.) BRIEF facts giving rise to instant Civil Revision is that rent agreement has been executed on 15. 03. 2005 by plaintiff-respondent in favour of his wife who was the Secretary of the defendant-revisionist no. 1 in respect of plot no. 77 situated at village Namoli, post Surajpur District Guatam Budh Nagar for letting the aforesaid plot to the revisionist at the monthly rent of Rs. 9,500/. It has further been contended that plaintiff-respondents did not provide accommodation as per rent agreement dated 15. 03. 2005, as such there was failure on the part of plaintiff-respondents of not fulfilling the agreement. It has been stated that defendants-revisionists was regularly paying rent in cash to the plaintiff-respondent and further premises in question was vacated also. JSCC suit had been filed on 20. 09. 2007 before JSC Court Gautam Budh Nagar. Said suit was contested by filing written statement. Plaintiff-respondent filed application under Order XV Rule 5 of Code of Civil Procedure. Against said application objection had been filed. Issue no. 1 was framed as to whether revisionist had been paying Rs. 9,500/- as rent to the respondents since March 2005 till the date of institution of suit in court or not ? Said issue has been decided on 14. 11. 2008. At this juncture present Civil Revision has been filed. Sri Dheeraj Singh Bohra, learned counsel for the revisionists contended with vehemence that in the present case JSC Court acted with material illegality, inasmuch as evidence which has been adduced on behalf of defendant-revisionist and case of defendants-revisionist has not at all been touched, and adverted to as such judgement dated 14. 11. 2008 passed by Additional District and Session Judge, FTC Gautam Budh Nagar is liable to be set aside.
(3.) IN order to appreciate respective arguments which have been advanced, 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 percent 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. ";