S. S. KULSHRESTHA, J.

This revision under section 25 of Small Causes Courts Act was brought by the applicant/defendant against the order dated 23. 11. 2005 passed by the learned Judge Small Causes Court/additional District Judge, Allahabad whereby striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure (hereinafter referred to as the Code) on the Application 25-C moved in that behalf by the landlord/opposite parties. It is said that the Trial Court has erect while construing the first date of hearing and finding the deposits to be not in accordance with law. For the purpose of Order XV, Rule 5 of the Code the date of hearing would be the date when the Court applied its mind to determine the points of controversy and not date fixed for filing of written statement. The Trial Court has fixed 12. 1. 2006 for final hearing on the points in issue and so that would be deemed to be the first date of hearing. Finding to the contrary recorded by the Trial Court holding 3. 1. 2005 to be the first date of hearing when the written statement was filed as patently illegal and against the well settled principle of law. It has also been contended that the deposit under section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 (hereinafter re ferred as the Act) ought to have been adjusted by the Trial Court. As regards non deposit of the interest @ 9% per annum accrued on the arrears of rent was on account of lack of suitable advice from the Counsel. Subsequently, that amount was also deposited and so such lapses on the part of the defendant was to be condoned by the

Trial Court. Even otherwise the provisions of Order XV, Rule 5 of the Code are directory and for non deposit of the amount on the first date of hearing, if the defence is struck off it would defeat the very intendment of the legislature which is for the benefit of the tenant.

2. This revision is resisted by the landlord/opposite parties contending that the defendant came to know about filing of the suit on 7. 12. 2004 when he asked for giving the copy of plaint and other annexures would be construed to be date of first hearing. Whatever money has made under section 30 of the Act by the defendant would not be adjusted towards the deposit under Order XV, Rule 5 of the Code. Entire admitted rent was not deposited by him. Tax is also the part of rent as its statutory and contractual liability is of the defendant. The same was not deposited by him from 1994. Further in compliance of Order XV. Rule 5 of the Code the defendant has not made deposit of the interest amount @ 9% per annum within the stipulated period and subsequent deposit cannot be validated by condoning delay as the Court had no power for the same.

3. In order to appropriate the answer to the questions raised by the learned Counsel for the parties. It shall be useful to make a brief resume of the facts. Respondents filed suit No. 23 of 2004 on 18. 8. 2004 in the Court of Judge Small Causes Court, Allahabad for the ejectment of the applicant/defendant and also for the recovery of the arrears of rent. Summons were issued to the de fendants fixing 8. 10. 2004 for filing written statement and for final hearing of the suit. Suit was transferred to another Court on 8. 10. 2004. Nobody turned upto attend the proceedings of that suit on the date fixed. Ultimately fresh sum mons were issued fixing 20. 10. 2004 for filing of written statement and final hearing. On 20. 10. 2004 service of the summons found to have not been affected on the defendant/applicant and so fresh summons were issued for 7. 12. 2004 for filing written statement and final hearing. On 7. 12. 2004 appearance has been put in by the learned Counsel for the defendant and request was made for fur nishing copy of the plaint and its annexures so that written statement may be filed. That application moved on behalf of the defendant was ordered to be put-up on 13. 1. 2005 for further orders. In the meantim

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