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Nathe Ram v. Additional District Judge & Others - WRIT - A No. - 43905 of 2007 [2007] RD-AH 15619 (17 September 2007)

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Court No.7

Civil Misc. Writ Petition No.43905 of 2007

Nathe Ram Vs. Additional District Judge and others

Hon'ble S.U. Khan, J.

This writ petition is being decided at the admission stage without issuing notice or hearing landlords respondents. In case landlords feel aggrieved by this order, they are at complete liberty to file application for recall of this order.

Landlords have filed S.C.C. Suit No.10 of 2004 against tenant petitioner before J.S.C.C./ Civil Judge, Senior Division, Azamgarh. In the suit, landlords filed application for striking off the defence of the petitioner. Trial Court refused to strike off the defence through order dated 10.08.2006 on the ground that tenant was depositing the rent under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 . Against the said order, landlords had filed Civil Revision No.150 of 2006, which has been allowed on 28.05.2007. Revisional Court has set aside order of the trial court and struck off the defence of the tenant petitioner. This writ petition is directed against the said order of the Revisional Court/ A.D.J. Court No.7, Azamgarh.

In the plaint, copy of which is Annexure 3 to the writ petition, the only ground for eviction is default.

The provisions of Order 15 Rule 5, C.P.C. are rather harsh, vide AIR 1981 SC 1657 "Bimal Chand Jain v. Gopal Agarwal." 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 and mandatory 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. Tenant had deposited rent under Section 30 of the Act.

Order of the Revisional Court is, therefore, set aside. Order of the Trial Court refusing to strike off defence is maintained on payment of Rs.5,000/- as cost by the petitioner. Petitioner shall positively deposit cost within six weeks from today for immediate payment to landlord. If cost is deposited, the the suit shall be decided very expeditiously. If cost is not deposited, then this writ petition shall be deemed to have been dismissed. Apart from the cost, tenant may deposit any amount as rent, however the question of the benefit of the said deposit shall be considered while deciding the suit finally.

The question, as to whether depositing the rent under Section 30 of the Act after receipt of notice is valid or not, shall also be decided at the final hearing stage.

Writ petition is accordingly allowed.




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