Point of law: It can be seen that tenant-opposite party was allowed to make deposit of admitted amount of rent firstly in August 2017 and thereafter in December 2017. The defence has been struck off subsequently in May, 2018. As such it can be seen that the default in deposit of admitted amount of rent as contemplated under second part of Order 15 Rule 5 C.P.C. was continuous and, therefore, the explanation of illness given by tenant-opposite party without adequate evidence to corroborate the same would definitely fall within the meaning of wilful default. The revisional court without interfering with the findings of fact recorded by the trial court erred in law in setting aside the order of trial court for striking off defence without adhering to the principles enunciated by Hon'ble the Supreme Court regarding exercise of revisional power.

JUDGMENT :

Manish Mathur, J.

Heard Sri Ravi Nath Tilhari, learned counsel for the petitioner and Sri S.K.Mehrotra, learned counsel assisted by Ms.Priyam Mehrotra, learned counsel appearing on behalf of opposite party no.1. Opposite party no.2, Additional District Judge being merely a proforma opposite party is not represented.

2. Under challenge is the order dated 30.08.2018 passed by III Additional Sessions Judge, Unnao in SCC Revision No.04/2018 (Jainul Islaam @ Gop v. Maseehamasi Farookhi) whereby revision filed against order dated 17.05.2018 striking off defence of tenant-opposite party on application of petitioner-landlord has been allowed.

3. As per averments made in this petition filed under Article 227 of the Constitution of India, petitioner-landlord filed SCC Suit No.8/2009 for arrears of rent, damages and ejectment of tenant-opposite party with respect to three shops numbered 369, 370, 371 situate in Mohalla Taki Nagar, opposite Central Bank, Pargana, Tahsil and District Unnnao. It has been stated that tenancy of the shops in question was at the rate of Rs.700/- per month for each shop apart from water tax. The landlord was compelled to file suit when monthly rent with effect from June 2008 till April 2009 was not paid by tenant. The tenancy was determined by registered notice dated 27.04.2009 in which arrears of rent and water tax was also demanded along with vacation of the shops in question. However, despite aforesaid notice when arrears of rent were not paid, petitioner-landlord was compelled to file the suit.

4. Tenant-Opposite party having put in appearance in suit proceedings, filed his written statement on 07.05.2010 admitting tenancy but denying the rate of rent at the rate of Rs.700/- per shop for any period prior to April 2007 although admitting aforesaid rate of rent with effect from April 2007. Liability for payment of water tax was also denied.

5. Subsequently, the SCC Suit was dismissed in default of appearance on 30.08.2011 and was restored to its original number only on 25.09.2014 whereafter tenant-opposite party filed application dated 23.01.2015 (Paper No.56-Ga) to deposit rent with effect from August 2011 till January 2015 amounting to Rs.88,200/-. Another application (Paper No.61-Ga) was filed to deposit rent for the months of February 2015 till April, 2015 including water tax and interest at the rate of 9% per annum amounting to Rs.5040/-.

6. Aforesaid applications were allowed by means of order dated 23.08.2017 permitting tenant to deposit rent/arrears of rent/water tax and interest at his own risk.

7. However, it has been stated that despite said order, tenant did not comply with the same and no such deposit as envisaged in the order was made by tenant. Owing to the said fact, petitioner-landlord filed application dated 1.5.2017(Paper No.C-70) under Order 15 Rule 5 CPC seeking the striking off defence of tenant-opposite party for failing to comply with the provisions. Petitioner-landlord filed another application on 30.10.2017 (Paper No.C-86) stating that tenant had not deposited rent with effect from April 2011 and that an amount of more than Rs.2,00,000/- towards rent and water tax was outstanding. A prayer for striking off defence as per the earlier application was also made.

8. Pursuant to aforesaid applications by petitioner-landlord, tenant opposite party filed another application dated 16.12.2017 (Paper No.91-Ga) stating that the due amount could not be deposited owing to ill-health of tenant and permission was sought to deposit Rs.50,000/- out of due amount, with assurance that rest amount would be deposited at the earliest. The application was thereafter allowed vide order dated 16.12.2017 permitting tenant-opposite party to deposit the amount at his own risk. It has been stated that even thereafter, deposit as permitted was not made.

9. Subsequently vide order dated 17.05.2018, application (no.C-70) was allowed striking off defence of tenant-opposite party against which SCC Revision No.4 of 2