JUDGMENT :

Neeraj Tiwari, J.

Heard learned counsel for the revisionists and Sri Harsh Narayan Singh, learned counsel for the opposite party.

2. Present revision has been filed challenging the impugned order dated 3.11.2021 passed by the Additional Session Judge, Court No. 1, Banda in SCC No. 3 of 2019 (Smt. Babita v. Radhe Shyam Chaurasiya).

3. Learned counsel for the revisionist submitted that revisionist No. 1 is never the tenant of opposite party, whereas tenancy is with the revisionist No. 2 through her husband since 1989. After institution of Suit No. 3 of 2019, opposite party has filed written statement denying the tenancy of revisionist No. 1, but accepted the tenancy of revisionist No. 2. During the pendency of suit proceedings, opposite party has filed an application under Order XV Rule 5 of Code of Civil Procedure (in short C.P.C.) on 5.1.2021 to struck off the defence, which was replied by the revisionists-defendants on 2.2.2021. In its reply, it is stated that revisionist No. 1 is never the tenant and revisionist No. 2 is shown to be sub-tenant, against whom, no rent is claimed, therefore, both are not liable to pay rent as required under Order XV Rule 5 of C.P.C.. Further, revisionist No. 2 is continuously tried to pay rent, but the same was not accepted by the opposite party, therefore, revisionist No. 2 sent the rent of shop in question through post office on 30.4.2019. He also stated that revisionist No. 2 paid the rent of 32 months from 13.2.2015 to 13.10.2017. Lastly, he submitted that under such facts and circumstances, application has wrongly been allowed and order is bad in law and liable to be set aside.

4. Per contra, Sri Harsh Narayan Singh, learned counsel for the opposite party submitted that both the defendants-revisionists are tenant of shop in question and taking contrary view. On one hand, they are saying that they are not tenant and on the other hand, it is accepted by revisionist No. 2 that she has deposited rent from time to time. He next submitted that in case, revisionist No. 1 is not the tenant, he must file an affidavit to this effect before the Court below with the specific averment that his name may be deleted from the array of the parties and he is only visitor at the shop of revisionist No. 2, who is original tenant. He further submitted that now it is admitted by the revisionist No. 2 that she is tenant. Further, from the pleadings of this revision as well as objection filed to the application under Order XV Rule 5 of C.P.C., it is admitted by the revisionist No. 1 that he was not the tenant, therefore, he has not paid rent and revisionist No. 2 is tenant, but never deposited the rent as required under provision of Order XV Rule 5 of C.P.C. Therefore, there is no illegality or irregularity in allowing the application filed under Order XV Rule 5 C.P.C.

5. In support of this contention, he placed reliance upon the judgments of this Court in the cases of Maya Devi another v. Vipin Kumar Kushwaha and another passed in S.C.C. Revision No. 489 of 2014 decided on 26.8.2016, State Bank of India, City Branch Pandey Hata, Thru. its Branch Manager and another v. Ram Niwas Verma and others, 2018 (127) ALR 362 and Gaya Prasad v. Thakur Krishna Chandra Ji Maharaj Virajman Mandir Bag Beniram and another, 2018 (127) ALR 104.

6. I have considered the rival submissions advanced by the learned counsel for the parties and perused the provision of Order XV Rule 5 of C.P.C. as well as judgments of this Court. Order XV Rule 5 of C.P.C. Provides as follows :

''5. Striking of defence for failure to deposit admitted rent, etc. 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 centum per annum and whether or not he admits any amount to