JUDGMENT :

1. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 is directed against an order of Mr. Devashish, Additional District Judge, Court No.10, Varanasi, sitting as the Judge, Small Cause Court dated 05.04.2022, striking off the tenants’ defence under Order XV Rule 5 of the Civil Procedure Code, 1908 (for short, ‘the Code’).

2. The plaintiff-respondent, Ashok Kumar Mishra, who shall hereinafter be referred to as ‘the landlord’, instituted S.C.C. Suit No. 5 of 2022 in the Court of the District Judge, Varanasi (sitting as the Judge, Small Cause Court) against the defendant-revisionists (for short, ‘the tenants’), seeking a decree for eviction of the tenants from the shop detailed at the foot of the plaint. In addition, a decree for recovery of arrears of rent to the tune of Rs.2,69,237/-for the period 02.04.2017 to 12.03.2020 was sought. A further sum of Rs. 32,013/-was claimed as mesne profits for the period 13.03.2020 to 08.07.2020. These claims apart mesne profits at the rate of Rs.8545/-per month were claimed pendente lite and future till delivery of actual physical possession to the landlord. The aforesaid suit was instituted by the landlord, seeking the tenants’ eviction from a shop admeasuring 350 square feet, situate in premises No. B-30/2A-3, Prafull Nagar Colony, Lanka, District Varanasi.

3. The tenants have put in their written statement dated 23.03.2021, denying the plaint allegations. In substance, the defence taken by the tenants is that though they entered the premises as tenants on a rent of Rs.5000/-per month and paid a sum of Rs.3,00,000/-as security in terms of a rent agreement dated 23.12.2008, but during the currency of the tenancy, parties have entered into a registered agreement to sell dated 22.06.2011, where the landlord has covenanted to sell the demised shop to the tenants for a total sale consideration of Rs.17,50,000/-. It is also the tenants’ defence that a sum of Rs.7,50,000/-has been accepted as earnest. It is also pleaded that the tenants have been delivered possession in part performance of the registered agreement to sell. The landlord has of his own given up his right to receive rent after the month of January, 2011, when he received it last.

4. Pending the suit for eviction, the landlord moved an application under Order XV Rule 5 of the Code with a prayer that the tenants’ defence be struck off for non-compliance of the aforesaid mandatory provision of the law. The application was answered by the tenants through objections saying that there was an earlier unregistered agreement dated 22.02.2011, under which the landlord agreed to transfer the demised shop on the contracted price of Rs.17,50,000/-. It was also said by the tenants that a suit for specific performance being O.S. No. 1174 of 2014, Sarita Mehrishi vs. Ashok Kumar has been instituted, which is pending before the Court of competent jurisdiction. It was also raised as a defence to the plea for striking off the tenants’ defence that the tenants were in possession of the demised shop in part performance of the agreement to sell and not as tenants qua the said premises.

5. The Trial Court did not accept any of the contentions put forth by the tenants and struck off their defence. The Trial Court was of opinion that even if some advance was paid towards part price of a contracted sale, no adjustment could be made with regard to any advance so far as rent required to be deposited month by month during the pendency of the suit was concerned.

6. Heard Mr. Rahul Mishra, learned Counsel for the tenants in support of the motion to admit this revision to hearing and Mr. Atul Dayal, learned Senior Advocate assisted by Ms. Vaishali Sahu, learned Counsel appearing on behalf of the landlord.

7. It is not in dispute that the tenants entered the demised shop as such on an eleven month lease paying a security in the sum of Rs.3,00,000/-. No doubt, there appears to be first an unregistered agreement to sell dated 22.02.2011