The applicability of Order XV Rule 5 CPC depends on the sole question whether the suit is by a lessor for eviction of a lessee for non-payment of rent or not.

Palok Basu, J.

1. This revision has been filed by Vijendra Kumar Jain, defendant/tenant, against the order dated 8-7-1987, passed by the 10th Additional District and Sessions Judge, Meerut, in Suit No. 27/85, thereby allowing an application of Smt. Shanti Devi, plaintiff landlady for striking off the defence of the applicant under Order XV Rule 5 CPC. It appears that Smt. Shanti Devi filed the suit before the Judge, Small Causes Court, against the applicant for a decree of arrears of rent and ejectment from an accommodation on the ground that the applicant who was a tenant at the rate of Rs. 400/- per month, was a defaulter for more than four months.

2. When this revision had come up for admission, notice was issued to the opposite party and on 15-9-87 the learned Counsel for both the sides had agreed that the revision be disposed of finally. When the matter came up today, both the learned Counsel stated that the lower court record need not be sent for as the relevant material is already available as annexures to the affidavits filed in this case and the time in deciding the interim matter may be the same as would be taken to dispose of this revision finally. Hence this Court proceeds to decide the revision finally.

In the suit, summons were served on the applicant, who filed a written statement. It transpires that since the applicant did not deposit the entire arrears in Court, the landlady moved the said application. Objections were preferred on behalf of the applicant to the effect that Order XV Rule 5 CPC was not attracted since the suit itself was not maintainable as the initial contract of tenancy between the applicant and the opposite party was " illegal, invalid and against the public policy ". It was further alleged that since the applicant does not admit any liability of payment of rent or compensation, the question of depositing any rent or interest thereon or even payment of "monthly rent' did not arise.

3. The trial court after hearing counsel for the parties, allowed the application of the landlady and struck oft" defence of the tenant on the finding that the defendant could not be absolved of the liability of depositing the rent, once he has admitted his signature on the rent-receipt as also the contract of tenancy between him and the landlady. It further held that the said contract was not void and binds both ; the right to cross-examine the plaintiff's witnesses will be available to the applicant and the argument that Order XV Rule 5 was against the provisions contained in Sections 76 and 104 of the Indian Contract Act was also rejected.

4. The main argument of Sri P. K. Jain on behalf of the applicant relying upon the observations of the Supreme Court in the case of Vimal Chandra Jain v. Sri Gopal Agrawal, 1981 ARC 463, is that the word 'may' used in sub-Rule (1) empowers the court to exercise its discretion but on facts and circumstances existing on record it may not strike off the defence on considering the representation of the tenant. It was argued that after the said case was remanded by the Supreme Court for fresh consideration, the tenant again lost it in this Court. But the tenant's case was accepted by the Supreme Court when he went there for the second time, and the order striking off his defence was set aside, though on some terms vide the judgment in Vimal Chandra Jain v. Sri Gopal Agrawal, 1983 ARC 203. He has also relied upon the case of Navin Chandra Sharma v. VIth Additional Sessions Judge, reported in 1983 ARC 50 for the argument that the initial contract of tenancy being illegal, no relief can be granted to the opposite party landlady finally.

Sri A. K. Yog on the other hand has argued on behalf of the landlady that the three rulings referred to above apply to the facts of the said case alone and the instant case does not depend upon any representation of the tenant because even the "admitted rent" has not been deposited as required by Or. XV Rule 5 CPC. He has supported the trial Cou