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Allahabad High Court · body

2018 DIGILAW 765 (ALL)

Ramesh Prasad Jaiswal v. Purushotham Narain

2018-03-30

RITU RAJ AWASTHI

body2018
JUDGMENT AND ORDER : 1. Heard learned counsel for revisionist. 2. For the order proposed, I do not find necessary to issue notice to respondents. It is dispensed. 3. This SCC Revision has been filed challenging the order dated 16.3.2018 whereby the application preferred under Order XV Rule 5 Code of Civil Procedure (CPC) by the respondents-defendants has been allowed by the learned Trial Court. 4. Learned counsel for revisionist submit that the revisionist being landlord has preferred a suit for ejectment and arrears of rent under the Small Causes Court Act. The suit was filed on 17.10.2017 and the first date after service of summons was fixed as 23.11.2017. The perusal of the order-sheet indicates that on 23.11.2017 Sri Arvind Kumar Mishra, Advocate had appeared on behalf of respondents-defendants and had assured that he would file the vakalatnama on the next date. On the next date i.e. 6.12.2017 the case was adjourned due to non-appearance of advocates. Thereafter it was listed on 4.1.2018 when it was again adjourned to sad demise of an advocate. It was thereafter that the case was listed on 6.2.2018 for filing of written statement/final hearing. On 6.2.2018 the application under Order XV Rule 5 CPC was filed by the defendant for allowing them to deposit the arrears of rent, interest, Court fee, expenses, etc. The learned Trial Court has allowed the said application by the impugned order. 5. Submission is that as per Order XV Rule 5 CPC in any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence. It is submitted that the expression first hearing has been provided under Explanation 1 according to which the expression first hearing means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. 6. It is contended that as per summons the first date fixed for filing written statement was 23.11.2017 and on that date the defendants lawyer had appeared before the Court, as such, it shall be treated to be the first date and on that date the defendants had not made any application for depositing the required amount, as such, the defense of defendants should have been struck off. They should not be allowed to deposit the required amount. The order impugned as such is patently wrong and illegal. 7. I have considered the submissions made by learned counsel for revisionist and gone through the records. 8. The perusal of impugned order indicates that the learned Trial Court has allowed the application filed under Order XV Rule 5 CPC by the respondents-defendants (9C/2) meaning thereby the respondents-defendants have been permitted to deposit the required amount. 9. It is to be noted that the order-sheet (Annexure-2) clearly indicates that on 23.11.2017 one Sri Arvind Kumar Mishra, Advocate had appeared on behalf of respondents- defendants and had assured to file his vakalatnama on behalf of respondents-defendants on the next date. The next date was fixed as 6.12.2017 on which date no proceedings were held and the next date was fixed as 4.1.2018. Again on 4.1.2018 no proceedings were held and the matter was adjourned to 6.2.2018. On 6.2.2018 the application under Order XV Rule 5 CPC was filed by the respondents-defendants. 10. The question as to whether 6.12.2017 was the first date of hearing or not is a vital question which may be decided after framing of issues and on the basis of evidence on record and giving opportunity of hearing to the parties concerned, as such, I am of the considered view that this question may be considered by the Court concerned at the stage of hearing. The required amount which the respondents-defendants are required to deposit pursuant to the impugned order dated 16.3.2018 shall be deposited subject to the decision in the suit and it shall be at their own risk of respondents-defendants. 11. The required amount which the respondents-defendants are required to deposit pursuant to the impugned order dated 16.3.2018 shall be deposited subject to the decision in the suit and it shall be at their own risk of respondents-defendants. 11. With these observations, the revision is disposed of.