The main legal point established is that the failure to deposit the monthly amount due as required by Rule 5 of Order XV of the Code justifies the striking off of the defence.

( 1 ) HEARD Sri B. N. Agarwal. the learned counsel appearing for the defendant-applicant and Sri prakash Gupta, the learned counsel appearing for the respondent-opposite parties.

( 2 ) INSTANT revision under Section 25 of the Provincial Small Cause Courts Act, 1887, as amended by the State of U. P. is directed against the order dated 16th September. 1989, passed by the judge. Small Causes Court/iv Additional District and Sessions Judge, Jhansi in Original Suit wo. 15 of 1988, Ramanand Dixit and another v. Bal Krishna.

( 3 ) THE impugned order was passed on the application No. 30-C moved by the plaintiff-opposite parties under Rule 5 of Order XV of the Code of Civil Procedure. 1908 (hereinafter called the code), and by the order the defence of the defendant-applicant has been struck off. The applicant seeks to assail the Impugned order on the following two grounds :

1. that the trial court has misconstrued the provisions of Order XV Rule 5 of the Code of Civil procedure and wrongly struck off the defence of the defendant-applicant inasmuch as under order XV, Rule 5 of the Code of Civil Procedure, only admitted amount is to be deposited by the defendant-applicant but defendant-applicant has not admitted any amount which is due and as such, the defence was not liable to be struck off : and 2. that the application of the plaintiff-opposite parties for striking off the defence of the applicant was not maintainable after close of the evidence of the plaintiffs witnesses and the trial court committed illegality in entertaining and allowing the application.

( 4 ) SO far as ground No. 2 is concerned. It does not survive inasmuch as on a reference made in this case itself, a Division Bench of this Court by its judgment and order rendered on 9th April. 1996, has held as below :

". . . . . . in view of the provisions of Rule 5 of Order XV of the Code, where the defendant commits default in making the deposit of the monthly amount due during the continuation of the suit, even after the closure of the evidence of the plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV. Rule 5, C. P. C. and decide the same on merits. "

( 5 ) FOR the purposes of proper appreciation of and adjudication upon ground No. 1, the provisions of Rule 5 of Order XV of the Code, as amended by the U. P. Act No. 57 of 1976, is quoted below in extenso :

5. Striking off defence for 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 depositthe 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.--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.--The expression entire amount admitted by him to be due means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessors account (and the amount, if any, paid to the lessor acknowledged by lessor in writing signed by him) and the amount, if any, deposited in any Court under Sec