JUDGMENT :

Neeraj Tiwari, J.

1. Heard Sri N.K. Chaturvedi, learned counsel for revisionist and Sri Hausihla Prasad Mishra, learned counsel for respondents.

2. Learned counsel for revisionist submitted at the bar that he does want to press the revision against order dated 4.12.2021 passed by Additional District and Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 3, Gorakhpur and he may be given liberty to file fresh revision against order dated 4.12.2021, for which Sri Hausihla Prasad Mishra, learned counsel for respondents has no objection.

3. Accordingly, present revision stands dismissed against order dated 4.12.2021 with the aforesaid liberty.

4. Learned counsel for the revisionist submitted that plaintiff/respondents have filed SCC Suit No. 10/2017 for eviction, arrear of rent and damages on 24.8.2017 in which defendant/revisionist has filed written statement on 28.3.2003 and taken specific plea that he had already deposited the entire due amount prior to filing of suit through different mode. Later on, after refusal of receiving of rent, he had also instituted a case under Section 30(1) of U.P. Act No. 13 of 1972 and continuously depositing the rent amount there. He next submitted that plaintiff/respondents have filed application dated 3.3.2020 under Order XV Rule 5 CPC, which was numbered as Paper No. 33C to struck off defence, upon which, defendant/revisionist has filed objection dated 11.2.2021, which was numbered as Paper No. 36C. He next submitted that application of plaintiff/respondents was allowed and objection of defendant/revisionist rejected on the ground that in all eventuality, after institution of suit, he has required to deposit monthly rent before the Court, where the suit is pending and any deposit made under Section 30(1) of U.P. Act No. 13 of 1972 cannot be adjusted. He next submitted that impugned order is bad on two grounds; first of all, Order XV Rule 5 CPC is discretionary and secondly, the provisions should not be interpreted in a way that tenant should be trapped to be evicted. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Kedar Nath vs. Waqf Shekikh Abdullah Charitable Madursa and Others, 2016 (6) ADJ 24.

5. Learned counsel for the plaintiff/respondents submitted that from the perusal of Order XV Rule-5 CPC, it is apparent that it is not discretionary, but mandatory in nature, therefore, it is required on the part of defendant/revisionist to deposit entire monthly rent before the Court, where the suit is pending and any deposit made under Section 30(1) of U.P. Act No. 13 of 1972 cannot be adjusted to meet the requirement of Order XV Rule 5 of CPC. Court has rightly struck off the defence of the defendant/revisionist in lack of deposit of monthly rent before the Court, where the suit is pending. In support of his contention, he has placed reliance upon the judgments of this Court in the matter of Haider Abbas vs. Additional District Judge (Court No. 3), Allahabad and Others, 2006 (1) ADJ 197 (All) (DB), More Singh vs. Chandrika Prasad, 2016 (130) RD 90, Krishna Kumar Gupta vs. Manoj Kumar Sahu, 2017 (7) ADJ 152 and Om Prakash Gupta vs. District Judge and Another, 2019 (2) JCLR 529 (All). He also submitted that judgment of Kedar Nath (supra) has not considered the earlier judgment of this Court in the matter of Haider Abbas (supra) and More Singh (supra).

6. I have considered the rival submissions made by learned counsel for the parties. Facts of the case are undisputed. Before proceeding to decide the issue, it would be useful to see the provisions of Order XV Rule 5 of CPC, U.P. Amendment, the same is being quoted below:

''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 th