V.K.JHANJI, J. - (1.) THIS revision petition is directed against the order of the Additional Senior Sub Judge Ambala City, whereby application filed by the Plaintiff (petitioner herein) under Order 15 Rule 5 read with Section 151 of the Code of Civil Procedure, for striking off the defence of the defendants from contesting the suit, or in the alternative directing the defendants to pay all the arrears of rent on demand for use and occupation of the shop, was dismissed.
(2.) IN brief, the facts are that plaintiff (petitioner herein) filed a suit against the defendants (respondents herein) for possession by way of ejectment of shop, comprising one room along with an open platform in front of the shop on the ground that the shop was rented out to defendants at the rate of Rs. 450/- per month w. e. f. 1. 7. 1983 for a period of 11 months and Rent note was executed by defendant No. 1 in favour of plaintiff-petitioner to this effect. The rent was enhanced from Rs. 450/- to Rs. 600/- w. e. f 1. 1. 1988. As per averments made in the plaint, defendants paid the rent upto February, 1988. Thereafter from the month of March, 1988, the defendants did not pay the rent despite many requests made by the plaintiff. It is further alleged in the Plaint that tenancy of the defendants was terminated vide legal notice dated 23. 3. 1990 which was duly received by the defendants on 26. 3. 1990. For some time, respondents No. 1 and 2 did not appear and, therefore, were proceeded ex-parte. Respondent No. 3 alone filed written statement in which he denied the relationship of landlord and tenant and set up the title in him. He in his written statement alleged that he had perfected his title by way of adverse possession. During the pendency of the suit, petitioner filed an application under Order 15 Rule 5 of the Code of Civil Procedure, which inter-alia provides for striking off the defence for failure to deposit admitted rent. Application, on contest, was dismissed on the ground that since there is a dispute about the status of the defendant, provisions of Order 15 Rule 5 C. P. C. cannot be invoked. Petitioner has now impugned the said order in the present revision petition. Having heard learned counsel for the parties at length, I am of the view that the revision petition deserves to succeed. At the time when the impugned order was passed, some evidence on behalf of the plaintiff had already come on record. In the impugned order, the trial Judge has noticed that some documents, reliance, on which was placed by the plaintiff, were exhibited in the statement of the plaintiff. During the pendency of the revision petition more evidence has come on record of the suit. Petitioner has annexed copies of some of the documents with this revision petition. Exhibit PW-5/j is Indemnity-bond submitted by Baru Ram, defendant, to various Authorities Including the Sales-Tax authorities and the Electricity Board, showing his status of a tenant and also the rent which the defendants were paying at the rate of Rs. 600/- per month. In view of the evidence which has already come on record, prima-facie I am of the view that the denial of relationship of landlord and tenant was totally unjustified and there was no substance in that denial. In case, where the Court finds that the plea of the defendant to strike-off the defence is untenable and that such a relationship existed, it would be justified in recording a finding to that effect and thereafter, in making an order striking off the defence under Order 15 Rule 5 of the Code of Civil Procedure. If such a course is adopted, that would discourage a frivolous plea which may be taken to avoid consequences of Order 15 Rule 5 of the code of civil Procedure.
(3.) VIDE interim order dated 9. 3. 1994, this Court had directed that during the pendency of the revision petition, respondent No. 3 shall pay/deposit the rent/compensation for the use and occupation at the rate of Rs. 600/- per month w. e. f. 1. 1. 1994. Counsel for defendant No. 3 has informed that the rent so directed has been deposited till date.;