Hon'ble Dilip Gupta, J.: -

The tenants have filed this petition for quashing the order dated 20th July, 2010 passed by the Court of Small Causes by which the defence of the tenant was struck off under Order XV Rule 5 of the Code of Civil Procedure. The tenants have also sought the quashing of the judgment dated 23rd September, 2011 passed by the Revisional Court by which the Revision filed by the tenants for setting aside the aforesaid order was dismissed.

The Courts below have recorded a finding of fact that on the first day of hearing, the tenants did not deposit the arrears of rent and, therefore, the defence has been struck off under Order XV Rule 5 of the Code of Civil Procedure.

It is submitted by the learned counsel for the petitioner that the rent was deposited under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the 'Act') and, therefore, it cannot be said that the petitioner was in arrears of rent on the first day of the hearing.

It is not in dispute that on the first date of hearing the tenant did not deposit the entire amount admitted by him to be due together with the interest in the Court of Small Causes.

In order to appreciate the controversy involved in this petition it would be necessary to place the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:-

Order XV Rule 5 CPC

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 cent 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 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 lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account.

(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible

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