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NASIRUDDIN @ BABU JI versus BUNDA KHAN

High Court of Judicature at Allahabad

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Nasiruddin @ Babu Ji v. Bunda Khan - CIVIL REVISION No. 271 of 2007 [2007] RD-AH 11266 (5 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Janardan Sahai, J.

     By the impugned order the defence of the applicant has been struck off under Order 15 Rule 5 Civil Procedure Code. The respondent had instituted a suit in the Court of Judge Small Causes for eviction of the applicant and recovery of arrears of rent alleging that the applicant is a tenant. It appears that the applicant did not deposit any amount as rent and the landlord filed an application for striking off his defence under Order 15 Rule 5 of the Civil Procedure Code. Objections to the application were filed by the applicant alleging that the plaintiff/landlord had agreed to sell the house to the applicant for a sum of Rs. 3,50,000/- and on 7.6.2005 a sum of Rs. 10,000/- was paid by the applicant as advance and further a sum of Rs. 2 lacs was paid on different dates by the applicant. In the objections it was also denied that there was any relationship of landlord and tenant.

     The trial court found that in  the written statement the applicant admitted the averments made in paragraphs 1 and 2 of the plaint in which it was alleged that the plaintiff is the owner and landlord of the disputed premises. The trial court relied upon the said admission in the written statement. The further finding recorded by the trial court is that an agreement to sell requires to be registered and the oral agreement referred to by the applicant could not be relied upon and that there was a relationship of landlord and tenant between the parties. This finding of the trial court that the applicant had admitted in his written statement to be a tenant of the premises has not been challenged by the learned counsel for the applicant. The stand in the objections that there was no relationship of landlord and tenant cannot be accepted as the applicant is bound by the admission in the written statement. The further finding  that no rent at all has been deposited by the applicant is also not being challenged by the learned counsel for the applicant in the arguments. The provisions of Order 15 Rule 5 Civil Procedure Code are plain on if the tenant fails to deposit the monthly rent during the pendency of the suit his defence is liable to be struck of.

     The only submission made by the counsel for the applicant is that it was incumbent upon the trial court before passing the impugned order to have decided whether the tenancy of the applicant had been terminated and in the absence of any finding regarding the termination of tenancy the order is not justified. He relied upon a decision of this court in 2005 (2) A.W.C. 1187 (Dr. Madhuri Saxena Vs. 5th Additional District Judge, Meerut and others). Reliance is placed upon paragraph 4 of the judgment. The Court in that case upheld the finding of the courts below that the provisions of Act XIII of 1972 were not applicable and the tenancy under Section 106 of the Transfer of Property Act could be determined. The said decision has no application to the present case, which relates to the striking of the defence under Order 15 Rule 5 of Civil Procedure Code for non deposit of rent. No other submission has been made. The revision lacks merits and is dismissed.

5.7.2007.

s..CR.271/07.


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