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2014 DIGILAW 2443 (ALL)

Sunder Devi v. Meera Bhatnagar

2014-08-11

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. Heard Sri R.C. Singh, learned counsel for the petitioner and Sri Sujit Kumar Rai, learned counsel for the respondents. 2. Respondents instituted a suit for the eviction of the petitioner on the ground of default in payment of rent and for recovery of arrears. In the said suit respondents filed application 32Ga for striking off the defence of the petitioner under Order 15 Rule 5 C.P.C. The application was rejected by order dated 18.10.2014 by the Small Cause Court. 3. Aggrieved respondents filed revision under Section 25 of the Provincial Small Causes Court act, 1887. The revision has been allowed by the impugned order dated 14.08.08 and the defence of the petitioner has been ordered to be struck off under Order 15 Rule 5 C.P.C. 4. The submission of Sri R.C. Singh, leaned counsel for the petitioner is that the revisional court is not justified in striking off the defence of the petitioner without recording any finding with regard to the first date of hearing and the sufficiency of deposits made by the petitioner. 5. Learned counsel for the respondents is unable to show from the impugned order that any finding with regard to sufficiency or non-sufficiency of the deposits. 6. I have perused both the orders of the courts below. 7. The court of first instance has recorded finding that the petitioner has deposited the entire amount admitted by him to be due together with interest on or before the first date of hearing and therefore, his defence is not liable to struck off. The revisional court has set aside the said order holding that? it does not record any finding with regard to the first date of hearing and the actual deposits made by the petitioner. 8. The revisional court however itself committed the same mistake as is said to have been committed by the court of first instance. It has also not recorded any finding with regard to the first date of hearing, the amount admitted to be due along with 9% interest and whether the amount? deposited by the petitioner is sufficient or not. In the absence of any such finding? the defence of the petitioner could not have been struck off by the revisional court. 9. It has also not recorded any finding with regard to the first date of hearing, the amount admitted to be due along with 9% interest and whether the amount? deposited by the petitioner is sufficient or not. In the absence of any such finding? the defence of the petitioner could not have been struck off by the revisional court. 9. Order 15 Rule 5 C.P.C. as applicable to the State of U.P. provides for striking off the defence of a tenant if he fails to deposit the entire amount admitted to him to be due along with 9% interest per annum on or before the first date of hearing and the rent regularly on monthly basis within a week of its accrual. 10. Thus, it is sine qua non for the courts to record finding with regard to the first date of hearing, the amount admitted to be due along with interest, whether the deposits made by the tenant are sufficient and whether any default has been committed in the payment of a? admitted rent on monthly basis. 11. In the absence of any such finding, it is not possible for the court to struck off the defence of the tenant. 12. In view of the aforesaid facts and circumstances, as in the present case the revisional court has ordered for the striking off the defence of the petitioner without recording findings to the above effect, the order of the revisional court cannot be sustained in law. 13. In view of above, the judgment and order dated 14.08.2008 passed by the VI Additional District Judge, Allahabad in SCC revision No.981 of 2004 Smt. Meera Bhatnagar (Dead) through heirs and legal representatives Vs. Smt. Sundar Devi is quashed and the matter is remanded to the revisional court for deciding the revision afresh in accordance with law. 14. The petition is allowed.