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Deshraj v. Gulab Chand Jain - WRIT - A No. - 43682 of 2007 [2007] RD-AH 15395 (12 September 2007)

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Court No.07

Civil Misc. Writ Petition No.43682 of 2007

Deshraj Vs. Gulab Chand Jain

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties.

Learned counsel for the landlord respondent has requested for disposal of the writ petition at the admission stage. She has stated that she does not want to file any counter affidavit.

This writ petition is directed against following orders through which defence of the tenant has been struck off:

1.order dated 03.01.2007 passed by J.S.C.C., Agra in S.C.C. Suit No.109 of 2004

2.order dated 06.08.2007 passed by A.D.J., Court No.10, Agra, in Revision No.07 of 2007.

Defence has been struck off on the ground of delay in depositing subsequent monthly rent. However, by now entire arrears of rent have been deposited and the rent stands deposited uptill November, 2007.

In view of the fact that now entire amount has been deposited and that the provisions of Order 15 Rule 5, C.P.C. are rather harsh, AIR 1981 SC 1657 "Bimal Chand Jain v. Gopal Agarwal" Impugned orders are set aside on payment of Rs.10,000/- as cost. It may also be noted that the provisions of Order 8 Rule 1, C.P.C., requiring the defendant to file written statement within 90 days from the date of service of summons is also as peremptory as order Order 15 Rule 5, C.P.C. However, the Supreme Court has repeatedly held that in spite of mandatory language used under Order 8 Rule 1, C.P.C. Court has power to take on record the written statement after the expiry of the aforesaid period. [vide Kailash Vs. Nanku 2005 (4) SCC 480 and R.N. Jadi & borthers VS. S. chandra 2007 (3) ARC 1 (SC)]. Same principle will apply to the provisions of Order 15 Rule 5, C.P.C.

Accordingly, writ petition is allowed. Impugned orders are set aside on payment of Rs.10,000/- as cost, which shall be deposited on the next date fixed before the Trial Court. Trial Court is directed to decide the suit very expeditiously preferably within four months.

It is further directed that no unnecessary adjournment shall be given to any party. If any adjournment is to be granted, then the same shall be granted on very heavy cost, which shall not be less than Rs.500/- per adjournment.

If costs are not deposited as aforesaid then this order shall stand automatically vacated and writ petition shall be treated to have been dismissed.

It is needless to add that the amount of cost and rent deposited or to be deposited by the tenant shall, at once, be permitted to be withdrawn by the landlord.




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