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Guddu Prasad v. The Iiird Addl. D.J. & Others - WRIT - A No. 47651 of 1999 [2005] RD-AH 7737 (19 December 2005)


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(Court No.51)

Civil Misc. Writ Petition No.47651 of 1999

Guddu Prasad  Vs.  The IIIrd Additional District Judge & Others


This is tenant's writ petition directed against order through which his defence has been struck off.  Landlady-respondent no.3 - Smt. Taramati Devi has filed SCC suit no.8 of 1991 against Dinesh - respondent no.5, petitioner- Guddu and respondent no.4- Kashi Nath.  In the suit it was alleged that Dinesh was the tenant and Guddu was the sub-tenant.  Petitioner Guddu asserted that he was the main tenant.  Petitioner further asserted that on the refusal of the landlady to accept the rent he had deposited the same under Section 30 of U.P. Act No.13 of 1972.

In July/August - 1997 petitioner filed an application in the suit before JSCC/Civil Judge (SD), Mau (where the suit was pending) stating therein that until December - 1996 he had deposited the rent under Section 30 of the Act and he wanted to deposit the rent with effect from January - 1997 till June - 1997 alongwith court fee, counsel's fee and interest.  Prayer for condonation of delay in deposit was also sought.  It was stated that he was not advised by his counsel to deposit the amount within time.  Trial court by order dated 12.8.1997 refused the permission to the petitioner to deposit the amount and struck off the defence of the petitioner.  Against the said order petitioner filed Civil revision no.40 of 1997 which was dismissed by IIIrd A.D.J., Mau on 27.10.1999 hence this writ petition.

Under Order XV Rule 5 C.P.C. it has been provided that if entire admitted rent is not deposited on the first date of hearing and thereafter monthly rent is not deposited every month then defence of the tenant shall be struck off.  Under Order VIII Rule 1 C.P.C. as substituted by C.P.C. Amendment Act 2002, written statement cannot be allowed to be filed after ninety days from the date of service of summons.  The Supreme Court in Kailash Vs. Nanku 2005 (1) A.R.C. 861 has held that inspite of imperative language used under Order VIII Rule 1 C.P.C. court has got jurisdiction to allow the defendant to file written statement even after ninety days of service of summons if proper reason for not filing the same within the said time is given.  It has further been held in the said authority that if written statement is allowed to be filed after ninety days from the date of service then it shall be done on heavy cost.  The same principle may be applied to Order XV Rule 5 C.P.C.  Under Order XV Rule 5(2) C.P.C. as added in Uttar Pradesh, before striking off the defence court may consider representation filed by the defendant.

I am of the opinion that in the facts and circumstances of the case defendant should have been permitted to deposit the amount on payment of heavy cost.  Provision of striking off the defence is quite harsh hence defence shall not be struck off mechanically.

Accordingly, both the impugned orders are set aside.  Petitioner's application for permission to deposit the entire admitted rent is allowed on payment of Rs.6,500/- as cost.  Petitioner is at liberty to deposit the entire rent due till 31.1.2006 on or before 7.2.2006 on the condition that alongwith deposit an additional amount of Rs.6,500/- is also deposited as cost which shall immediately be paid to the landlady-respondent no.3 - Smt. Taramati Devi.

Writ petition is accordingly allowed.




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