THE TENANT IS LIABLE TO DEPOSIT THE MONTHLY RENT IN TIME AS REQUIRED BY ORDER XV, RULE 5 OF THE CODE OF CIVIL PROCEDURE.

Sudhir Narain, J.

The petitioner has challenged the order dated 1-9-1981 passed by IVth Additional District Judge, Allahabad whereby he allowed the revision against the order of the Judge Small Causes, Allahabad.

2. THE facts in brief, are that the petitioner is the landlord and owner of House No. 670 Muthiganj, Shraiya, Allahabad and respondent No. 2 is tenant of the ground floor portion of the aforesaid house.

The petitioner filed Suit No. 50 of 1979 on 11-1-1979 in the Court of Judge Small Causes, Allahabad against respondent No. 2 claiming arrears of rent with effect from 1st December, 1976. He claimed monthly rent of the disputed accommodation at Rs. 100 plus Rs. 20 per month as electric charges The summons was issued to respondent No. 2 and the first date of hearing was 16th April, 1979. On the said date respondent No. 2 filed a written statement and further deposited a sum of Rs. 1910. In the written statement he alleged that he had already deposited a sum of Rs. 1187 and an amount of Rs. 1910 was being deposited thus the total amount comes to Rs. 3,097 while according to the claim of the tenant the total amount till 16th April, 1979 was Rs. 3,070 and Rs. 27 was in excess.

3. ON 3rd November, 1979 the petitioner filed an application to strike off the defence of respondent No. 2 under Order XV, Rule 5, C. P. C. in the ground that the tenant did not deposit the full amount.

4. RESPONDENT No. 2 filed objection to the said application on 15-1-1980 and contended that the amount deposited by him on first date of hearing was in excess. On 24-4-1980 he filed another application praying that he may be permitted to file documents, tenders and receipt in evidence. In the application it was stated that he was a businessman so by chance and mistake in the business file the tenders regarding the deposit made by him were packed and sent to Calcutta and now he was found them. He also sought permission to file electric bills and receipts regarding expenses alleged to have been done by him in repairing and white washing of the house.

The Judge Small Causes Court, Allahabad held that the petitioner had not deposited 9% interest on the amount due on the date of first hearing and further he had not deposited monthly rent in time. He failed to comply with the provisions of Order XV, Rule 5 of the Code of Civil Procedure and his defence was liable to be struck off. Respondent No. 2 filed revision against the said order. Respondent No. 1 allowed the revision by order dated 1-9-1981. The petitioner has challenged this order in this writ petition.

5. I have heard the learned counsel for the parties.

6. THE learned counsel for the petitioner contends that respondent No. 2 committed default: (1) By not depositing the amount of interest @ 9% on the date of first hearing on the amount which was alleged to. be due against him. (2) Respondent No. 2 was depositing monthly rent from the period 15-5-1979 to 13-4-1980 but it was not a regular deposit and there was no explanation for the delay in depositing the amount. He has given the following details of deposit of monthly rent: Monthly amount due Date of deposit 14-5-1979 to 13-7-1979 3-8-1979 14-7-1979 to 13-10-1979 24-10-1979 14-10-1979 to 13-1-1980 16-1-1980 14-1-1980 to 13-4-1980 15-4-1980.

9. There is no dispute that respondent No. 2 had deposited the entire arrears of rent on the date of first hearing. THE contention of the learned counsel for the petitioner is that the tenant had not deposited the amount of interest of @ 9%. THE Courts below have found that even alleged excess amount of Rs. 27 is taken into consideration, the petitioner had not deposited the total amount of interest due on the date of first hearing.

10. THE learned counsel for the respondent contended that the respondent was entitled to adjust the amount which was spent by him in appeal repairing and payment for electric bills.

11. In the application dated 24-4-1980 respondent No. 2 has not given the details of the amount