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2010 DIGILAW 2402 (ALL)

Nirmala Pandey v. Sachchidanand Chaturvedi

2010-08-09

RAKESH TIWARI

body2010
JUDGMENT Rakesh Tiwari, J. - Heard counsel for the petitioner and perused the record. 2. This writ petition has been filed for issuance of a writ in the nature of certiorari quashing order dated 1.5.2010 passed by Additional District Judge, court no. 10, Varanasi, by which application of the petitioner, paper no. 8-G, under section 5 of the Limitation Act, has been rejected. 3. Facts of the case are that respondent landlord filed J.S.C.C. suit no. 1 of 2002 claiming relief for eviction of the petitioner as well as for a decree of Rs. 36,300/- towards arrears of rent. The suit was contested by the petitioner by filing her written statement. On the first date of hearing, the petitioner did not deposit the arrears of rent as claimed by the respondent and as such the respondent landlord filed an application dated 3.1.2003 under Order XV Rule 50, C.P.C. for striking off defence of the petitioner. Objection was filed by the petitioner against the application dated 3.1.2003. The Civil Judge (Senior Division), Varanasi struck off the defence of the petitioner vide order dated 29.1.2008. Ultimately, the suit was decreed by judgment and order dated 26.5.2009. 4. Aggrieved by the aforesaid judgment and order dated 26.5.2009, the petitioner filed a revision before the District Judge, Varanasi. During its pendency, an application dated 15.9.2009 under section 5 of the Limitation Act supported with affidavit, was moved by the petitioner for recalling the order dated 29.1.2008, by which her defence was struck off. The aforesaid application which was numbered as misc. case no. 258 of 2009, was contested by the landlord by filing his objections to the aforesaid application. 5. After hearing the parties, the Additional District Judge, court no. 10, rejected the application filed by the petitioner under section 5 of the Limitation Act. 6. Contention of the counsel for petitioner is that it is settled that on an application for condonation of delay for depositing arrears of rent claimed by the respondent, the court below ought to have taken a lenient view but in the present case the application has been rejected on technical grounds. 6. Contention of the counsel for petitioner is that it is settled that on an application for condonation of delay for depositing arrears of rent claimed by the respondent, the court below ought to have taken a lenient view but in the present case the application has been rejected on technical grounds. He further submits that arrears of rent could not be deposited by the petitioner on the first date of hearing due to bonafide reasons which were explained in the application under section 5 of the Limitation Act and in this view of the matter, she has cause of action for filing the present writ petition. 7. I have considered the arguments of learned counsel for the petitioner. 8. It is an admitted fact that the petitioner was in arrears of rent of Rs. 1,20,000/- but the landlord claimed only Rs. 36000/- towards rent as other part of amount of rent was beyond limitation. The defence of the petitioner was struck off by the court as she had not deposited arrears of rent under section 30 of the Act within the time prescribed. Once the suit has been decreed, it was not open for the petitioner to have challenged the order dated 29.1.2008 striking off her defence which had merged with the final decree. In the admitted background, the application under section 5 filed by the petitioner was misconceived and not maintainable. 9. For the aforesaid reasons and in view of admitted position of facts and law, this Court is not inclined to interfere with the matter under Art. 226 of the Constitution of India. The writ petition is accordingly dismissed. No order as to costs.