Ajay Kumar Yog, J. - (1.) PAWAN Kumar, petitioner, has prayed for writ of certiorari to quash judgment and order dated 5.7.1997 (Annexure -5 to the petition) and judgment and order dated 15th May, 1999 in SCC Revision No. 42 of 1997 (Annexure -7 to the petition) whereby the application under Order XV Rule 5 Code of Civil Procedure filed by the plaintiff, respondent No. 1 has been allowed and the objections filed by the petitioner (Annexure -4 to the petition) have been rejected. The submission on behalf of the petitioner is that in the instant case no amount was due as pleaded in para 9 of the written statement (Annexure -2 to the petition) and hence he was not required to make any deposit under Order XV, Rule 5, Code of Civil Procedure on the first date of hearing. In para 15 of the written statement, if is also pleaded that defendant committed no default in depositing monthly rent and that the same was being deposited continuously in Court. Persual of the application under Order XV Rule 5, Code of Civil Procedure filed by the plaintiff (Annexure -3) wherein landlord urged that defendant had committed default in payment of rent and the same was not being deposited month by month within time schedule contemplated under law and, thus, the defendant was guilty of committing default and his defence was liable to be stuck off. Defendant in his objections in paras 2 and 3 (Annexure -4 to the petition) took defence and sought to explain the reasons for his default by alleging that he had deposited rent for which tenders were on the file and that he had deposited lump sum amount also with his Counsel engaged previously and had instructed him to deposit the same. He was not aware that monthly rent was to be deposited by 7th of each month. He was depositing money with the clerk of the advocate engaged earlier and after taking tender he was depositing rent and same modus operandi was resorted to in the case of another Counsel. The defendant pleaded that he was not aware of the legal position and hence the delay was not deliberate and same was liable to be condoned. Consequently his defence may not be struck off.
(2.) THE Judge, Small Causes Court in his judgment and order dated July 5, 1997 (Annexure -5 to the petition), after considering the evidence on record and the plea urged before him, came to the conclusion that the explanation pertaining to the engagement of earlier Counsel Sri Ashok Kumar, is not worth credence inasmuch as several defaults have been committed with respect to the deposits of monthly rent even when another Counsel Sri Awadh Behari Lal Gupta, is said to have been in -charge of the case. The trial Court also observed that there is no explanation nor application for condonation was submitted at the time of getting the tenders passed for depositing rent for different periods. The trial Court, after perusing the record and the tenders, recorded a finding of fact that defendant did not deposit monthly rent by 7th of each month and that his explanation with reference to engagement and change of Advocates, firstly Sri Ashok Kumar and then Sri Awadh Behari Lal Gupta, Advocate, could not be believed inasmuch as the defendant had committed default even after application under Order XV Rule 5, Code of Civil Procedure was filed. The Judge, Small Causes Court recorded a finding that defendant had deliberately delayed payments and his explanation was not to be believed and passed judgment and order dated 5th July, 1997 (Annexure -5 to the petition).
(3.) FEELING aggrieved, plaintiff preferred S.C.C. Revision No. 42 of 1997. Revisional Court has affirmed the findings of the trial Court and had given cogent reasons after considering defendant's application, Paper No. 17 -GA. The Revisional Court has affirmed findings on the relevant issue and dismissed the revision by means of a judgment and order dated 15.5.1999 (Annexure -7 to the petition).;