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Shree Kapoor Chand Agrawal Dharamshala Trust Thru' Pradhan T v. Suresh Chand Varshney - WRIT - A No. 64520 of 2006  RD-AH 20066 (27 November 2006)
Court No. 7
Civil Misc. Writ Petition No. 64520 Of 2006
Shree Kapoor Chand Agrawal Dharamshala Trust
Suresh Chand Varshney
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the petitioner and perused the record.
The dispute in this writ petition relates to an accommodation in the shop in question situated in Mohalla Nawab Vilram Gate Bazar, Town Kasganj, District Etah which is the property of Shree Kapoor Chand Agrawal Dharamshala Trust.
A notice was sent by the said Trust to the respondent in regard to arrears of rent of the disputed accommodation. Thereafter S.C.C. Suit No. 9/2000 was filed before the Judge Small Cause Court, Kasganj, District Etah for ejectment of the respondent and for payment of arrears of rent etc. by him.
The suit was contested by the respondent by filing his written statement.
During the pendency of the suit an application 33-C dated 7.8.2004 was filed by the respondent under Order XV Rule 5 C.P.C. for condoning delay and for depositing arrears of rent which according to him could not be paid during the pendency of the suit due to wrong legal advice.
The plaintiff-petitioner replied the said application and moved an application 35-C for rejection of the aforesaid application 33-C.
By order dated 29.11.2005 the application 33-C filed by the respondent was allowed with costs of Rs. 1500/- striking off the defence of the respondents in the suit and the reply/application 35-C filed by the petitioner was rejected. Aggrieved, the petitioner filed a S.C.C. Revision No. 24/2005 which was also dismissed vide order dated 1.9.2006. Aggrieved by the aforesaid two orders dated 29.11.2005 and 1.9.2006 the petitioner has come in this writ petition.
From a perusal of the record it appears that the counsel for the respondent had shifted to another place, hence the contention of the learned counsel for the respondent as well as the very ground taken by him that he could not deposit the rent in time due to wrong legal advice prima facie appears to be incorrect. It is apparent that it is not a case of wrong legal advice. This Court in similar circumstances rendered judgment in Kailash Shukla Vs Addl. District Judge, Deoria and others, 2004 (55) A.L.R. 305, wherein it has been held that in such a situation the explanation for non-deposit of the rent was neither proper nor valid and the defence was rightly struck off.
The amount of arrears of rent has to be deposited under Order XV Rule 5 (1) C.P.C. on or before the first date of hearing of the suit and monthly deposit thereafter is to be made throughout the continuance of the suit in the court where the suit was filed for ejectment and recovery of arrears of rent and for compensation for use and occupation. Thus it is obligatory and mandatory upon the tenant to deposit these arrears of rent on or before the first date of hearing in the suit and to continue to deposit the same.
A prima facie case for interference has been made out.
Issue notice returnable at an early date.
Apart from normal mode of service the learned counsel for the petitioner shall also take steps for personal service upon the sole respondent within a week. The personal service shall be affected within 15 days from today and affidavit of personal service shall be filed within a week thereafter. The notice shall indicate that the respondent may file counter affidavit by the first week of January, 2007.
List this case on Friday, 5th of January, 2007.
Till further order of this Court the operation of the impugned order dated 29.11.2005 appended as Annexure 8 to the writ petition passed by the Judge Small Cause Court/Civil Judge (Junior Division), Kasganj in S.C.C. Suit No. 9/2000 and order dated 1.9.2006 appended as Annexure 10 to the writ petition passed by the revisional court, i.e., Additional District Judge, Kasganj in Civil Revision No. 24/2005 shall remain stayed unless vacated or modified.
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