- (1.) THIS is a defendant's revision filed under S.115 Civil P.C. against a judgement of the Second Additional District Judge, Aligarh dated 14-9-1977 accepting the revision preferred under S.25 of the Provincial Small Cause Courts Act.
(2.) THE plaintiffs are the opposite parties in this revision. THEy filed Suit No. 457 of 1975 for ejectment, recovery of arrears of rent and damages for use and occupation. THEy alleged that the defendant was the tenant on a monthly rent of Rs. 80 besides Rs. 3 for electrical charges of a pucca shop situated in Mohalla Jwalapuri G. T. Road, Aligarh. He did not pay the rent and the electricity charges amounting to Rs. 1245 due from 1-10-1973 to 31-12-1974, despite a notice dated 27-1-1975. The suit was contested by the defendant claiming that the rate of rent initially agreed between the parties was Rs. 10. He asserted that he had been paying rent every month and that the plaintiff had been receiving the same. The defendant's case was that rent up to the end of December, 1974 stood fully paid up; that in the month of January, 1975, the plaintiff sent an illegal and wrong notice claiming the rent from 1-10-1973. During the pendency of the suit, an application dated 29-10-1975 (was made) for striking off the defence on the ground that as the defendant had neither deposited nor paid rent, the defence was liable to be struck out under O.15, R.5, C.P.C. The learned Judge Small Cause Court did not dispose of the said application after it was filed and instead observed in the judgement that in view of the deposits referred to by him, it would not be proper to strike of the defence. The judge, Small Cause Court held that the rate of rent had been at Rs. 15 as alleged by the plaintiff. He further concluded that the defendant had not committed any default in the payment of the rent. On these findings, the suit was dismissed.
(3.) AGAINST the judgement of the trial court, the plaintiff preferred a revision under Section 25 of the Provincial Small Cause Courts Act. In the revision the Additional District Judge found that the deposit of the arrears of rent and future rent having not been made, as required by O.15, R.5, C.P.C., the defence was liable to be struck out. After ignoring the defence of the tenant, the learned Additional District Judge held that the plaintiff had established that the rate of rent of the shop in question was Rs. 80 per month and since the defendant had committed a default he was liable to eviction. Consequently, the revision was allowed and the suit of the plaintiff was decreed for the ejectment of the defendant and for the recovery of Rs. 1736 as arrears of rent and electric charges. Dissatisfied, the defendant filed the present revision. The first question that is required to be considered in this case is whether the written statement filed by the defendant was liable to be struck out. By U.P. Civil Laws (Amendment) Act No. 37 of 1972 Rule 5 was added to O.XV of the Civil P.C. It provides for the striking off of the defence at non-deposit of rent. It further requires a defendant to deposit regularly the amount of monthly rent throughout the continuance of the suit. In the instant case, there were two controversies. One of them was about the rate of rent and the other was about the adjustment of the amounts deposited in the proceedings under S.30 of U.P. Act No. 13 of 1972. As already stated above, the case of the defendant was that the rate of rent was Rs. 15 whereas that which was of the plaintiff was that it was Rs. 80 per month. The Judge found in the revision filed under Section 25 of the Provincial Small Cause Courts Act that the rent was Rs. 80 per month and as the deposits had not been made at the rate of Rs. 80 per month the defence was liable to be struck out. In this connection the Revising Authority had found that not only that the arrears of rent had not been deposited on the first day of hearing but also the defendant had not deposited monthly rent regularly. Although, the Judge Small Cause Court had not struck out the defence but even he held that the deposit of the monthly rent had not been regular. It, however, had refused to strike out the defence on the ground that the same was not proper to be done at the late stage when the parties had already adduced evidence and the case was being decided on the merits. This necessitates the consideration of the nature of the provision made under O.15, R.5, C.P.C.;