- (1.) Present petition has been filed under Article 227 of the Constitution of India for setting aside order dated 23.10.2015 (Annexure P8), passed by learned Civil Judge (Junior Division), Gurgaon whereby the defence of the petitioner/defendant was struck off. I have heard learned counsel for the parties and have gone through the entire record carefully including the impugned order passed by the Court below.
(2.) Facts relevant for the purpose of decision of the present petition that respondent/plaintiff filed the main suit for possession by way of ejectment of the petitioner/defendant from the premises No. LG- 16 on lower ground floor in the shopping mall called "Hong Kong Bazaar", Sector 56, Gurgaon, owned by the plaintiff. The said premises was taken on rent vide lease deed bearing vasika No. 15581 dated 1.9.2010 for a period of 96 months ending 11.9.2018 on payment of Rs. 65,300/- per month commencing from 12.9.2010, besides Rs. 2,00,000/- as security. Defendant failed to pay the rent w.e.f. 1.3.2011 despite demands, besides maintenance charges since 12.9.2010 and electricity charges. Defendant issued seven cheques of Rs. 65,300/- each on 12.3.2011 but the same were dishonoured. Even cheque of Rs. 4,50,000/- dated 4.8.2011 was also dishonoured. Legal notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as "the Act") was issued on 16.9.2011 thereby terminating the tenancy and despite service of notice, defendant failed to vacate the tenanted premises and as such necessity of the suit for recovery of Rs. 9,07,100/- along with interest at the rate of 18% per annum and the amount for use & occupation of the premises from the date of filing of the suit till vacation of the suit premises. Defendant contested the suit inter alia taking the plea that payment of rent has already been made but no receipt was being issued by the landlord and prayed that suit be dismissed. From the pleadings of the parties, issues were framed by the trial Court. During pendency of the suit, an application, under Order 15 Rule 5 CPC for striking off defence of the petitioner/defendant was moved and the Court below, after considering the grounds taken in the application and reply thereto, accepted the same.
(3.) Learned counsel for the petitioner submitted that the Court below has not considered the matter in controversy in its true perspective and decided the application with the assumption that the provisions of Order 15 Rule 5 CPC are mandatory, whereas the same are directory. On this point, reliance was placed upon the judgment rendered by this Court in case Raj Kumar Mittal v. Arvind Kumar Jain, 2003 1 RCR(Rent) 63 . Learned counsel for the petitioner also submitted that before passing the impugned order, the Court below has not passed any order asking the petitioner to make payment of amount due, if any. No opportunity has been given to the petitioner to deposit the outstanding amount of lease money at the admitted rate before striking off his defence. On this point, reliance was placed upon the judgment rendered by this Court in case Narinder Pal v. Surinderjit Singh and Others, 2011 3 RCR(Civ) 305 , wherein such a view was taken. While arguing on this point, learned counsel for the respondent submitted that conduct of the petitioner reflects that the payment of rent has not been made despite demands and legal notice. Earlier, petitioner had issued cheques with dishonest intentions and the same were dishonoured. Petitioner cleverly remained away from the proceedings of the Court and after passing of the ex parte order by the Court below, she moved an application for setting aside the said order and the only purpose was not to pay any rent and to enjoy the premises and the Court below passed the order while taking into consideration all these facts and present petition is without any merit and the same be dismissed.;