Failure to deposit the rent as required under Order XV Rule 5 of the Code of Civil Procedure, 1908 can impact the maintainability of a revision under Section 25 of the Provincial Small Causes Court Act, 1887.

Attau Rahman Masoodi, J. -- Heard learned Counsel for the parties.

2. This revision filed under Section 25 of the Provincial Small Causes Court Act, 1887 arises out of an order dated 23.12.2016 passed by the court below on an application filed under Order XV Rule 5 of the Code of Civil Procedure, 1908 by the opposite party who being a subsequent purchaser of the disputed property claims himself to be the landlord. Suit for eviction filed by the opposite party coupled with the prayer for recovery of arrears of rent and damages is pending.

3. Sri N.K. Shukla, learned Counsel for the opposite party has raised a preliminary objection against the maintainability of the instant revision on the ground that the impugned order has since not decided the suit finally as such the revision may not be maintainable within the scope of Section 25 of the Provincial Small Causes Court Act, 1887. He has relied upon a judgment of this Court reported in Allahabad Rent Cases, 1980 page 436 rendered in the case of Banaras Education Society, J.H. School versus Vth Addl. Distt. & Sessions Judge, Varanasi and others.

4. Per Contra, learned Counsel for the revisionist argued that the revisionist being a defendant in the suit filed by the opposite party has through out denied that he was a tenant of opposite party. The subsisting tenancy rights, therefore, ought not to be affected by striking of the defence and that too when the original lessor who had let out the accommodation is not impleaded as a party to the suit proceedings and particularly when the revisionist has paid rent to the landlady as per his stand.

5. The application was filed by the opposite party under Order XV Rule 5 of the Code of Civil Procedure, 1908 which for ready reference is reproduced below: -

"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 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 1-3 * * * *

(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 ten 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 on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."

6. Order XV Rule 5 of the Code of Civil Procedure, 1908 can be read into two parts. The aforesaid provision takes care of the rent due as on the date of institution of the proceedings as admitted by the tenant and it also provides for the deposit of monthly rent during the continuation of proceedings even if the amount due is admitted or not by the tenant.

7. In the present case, the revisionist has set up a case of having made the payment of rent to the landlady but such a defence is a matter of scrutiny by the court.

8. Once it is admitted that the revisionist is a tenant, the defence op