Judgment :

The landlady is appellant in this case. She filed a suit for eviction of the respondent in the Court of the Civil Judge, Bareilly on the ground that the respondent tenant had defaulted in payment of the rent.

The suit was dismissed by the Civil Judge on the ground that certain amounts had been deposited up to January 1979. The learned Third Additional District Judge, Bareilly set aside the order of the trial court and remanded the matter for fresh disposal. Again the tenant defaulted in payment of the monthly instalments as required by Order 15 Rule 5 CPC as amended in Uttar Pradesh.

The appellant moved an application for striking off the defence of the tenant on the ground that he had not deposited the admitted rent and that the rent paid was also insufficient. It may be mentioned that at one stage the appellant claimed rent payable as Rs.100 per month. The tenant was contending that the rent payable was Rs.60 per month and that another sum of Rs.12 is payable towards water and house tax making total of Rs.72.

The Civil Judge by his order dated 7-3-1981 held that there was a default in depositing of the rent for the months of August, September, October, November and December 1980. While coming to this conclusion the Civil Judge also noted that even if it is to be taken that the rent payable was Rs.60 per month, there was a default in payment of rent. The Civil Judge also observed that the tenant had not made any “representation” under Order 151 Rule 5(2) CPC (U.P. Amendment) and that therefore the defence was liable to be struck off and accordingly the defence was struck off.

The tenant filed a revision petition before the Additional District Judge, Bareilly, who concurred with the trial court in finding that whether the rent payable was Rs.72 per month or Rs.60 per month, there was a default and since there was no “representation” by the tenant under Order 15 Rule 5 the defence was liable to be struck off. While coming to this conclusion both the trial court as also the Revisional Court referred to the judgment of the Allahabad High Court in Pooran Chand v. Pravin Gupta (1980) 6 All WC 712). Against this judgment the tenant filed a writ petition in the High Court at Allahabad. The learned Judge who heard this case was of the view that in the light of the decision of this Court in Bimal Chand Jain v. Gopal Agarwal ((1981) 3 SCC 486 : (1982) 1 SCR 124) wherein the decision of the Allahabad High Court above referred to had been overruled, the striking off the defence was not in accordance with law and accordingly set aside the order of the revisional authority and remanded the matter to the revisional authority with a direction to take up the case on file and to dispose of the same on merits in the light of the observations made in the judgment. It is against this order the present appeal has been filed.

Order 15 Rule 5 as amended in Uttar Pradesh reads as follows:

“5. Striking off defence on failure to deposit admitted rent, etc. –

(1) 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 centum 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.

Explanation 1. – The expression ‘first hearing’ means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2.