A tenant denying rent is not required to deposit until the court adjudicates the issue of tenancy, as per Order XV Rule 5 of the Code of Civil Procedure.

JUDGMENT

Abdul Moin, J.

Heard learned counsel for the revisionist and Shri. Goverdhan Lal, learned counsel appearing for the respondents no. 2 to 5.

2. With the consent of learned counsel appearing for the contesting parties, the revision is being finally decided.

3. The contention of learned counsel for the revisionist is that a suit was filed before the learned District Judge Lucknow by Shri. Kadir Aaga, the husband of the respondent no. 2 and father of respondents no. 3 to 5 praying for ejectment of the revisionist herein and praying for payment of arrears of rent. The property in dispute is a flat/apartment. The revisionist put in appearance before the learned trial court and filed his written statement, a copy of which is annexure 5 to the revision, specifically indicating that he is not a tenant of the premises in dispute rather there was an agreement for sale entered into between the plaintiff and him of which a substantial amount has already been paid and possession has been given.

4. However, as alleged arrears of rent were not deposited, consequently the plaintiff filed an application under Order XV Rule 5, Code of Civil Procedure indicating that as the alleged arrears of rent have not been deposited consequently right of defense of the revisionist herein should be forfeited.

5. Learned trial court vide the order impugned dated 07.09.2021 after considering certain judgements of this Court was of the view that as the revisionist herein has failed to deposit the arrears of rent consequently his right of defense is being forfeited. Learned trial court has also considered the xerox copies of the agreement of sale which was filed by the revisionist herein but was of the view that as the original document has not been filed and as the plaintiff has described the said document to be fake and fraudulent document consequently no reliance can be placed upon the same and hence the order impugned.

6. Challenging the aforesaid order, the instant revision has been filed.

7. The argument of learned counsel for the revisionist is that he was only required to deposit the arrears of rent on the date of first hearing when he admitted that he was a tenant and that the arrears were admittedly due. His contention is that while filing the written statement, it was categorically stated by the revisionist herein that at no stretch of time the revisionist has ever been a tenant of the premises in dispute rather an agreement of sale had been entered into between Shri. Kadir Aaga the plaintiff and landlord and the revisionist, of which a substantial amount had been paid which aspect of the matter has not been considered by learned trial court while passing the order impugned in as much as the division bench of this Court in the case of Kunwar Baldevji v. XIth Additional District Judge, Bulandshahr, 2003 (1) ARC 637 upon a reference being made to it pertaining to interpretation of Order XV Rule 5, Code of Civil Procedure has held that if the amount of rent is admitted then it is not required to be adjudicated by the Court but in case the tenant denies any rent to be due the Court shall be required to decide the same and in such circumstances the Court will have to adjudicate and its finding will come subsequent to the "first date of hearing" contemplated under Order XV Rule 5, Code of Civil Procedure.

8. Placing reliance on the aforesaid judgment the argument of learned counsel for the revisionist is that when a dispute had been raised by the respondent pertaining to he not being a tenant and consequently the revisionist not being in arrears of rent as such it was the duty of learned trial court to have first framed an issue with regard to deciding as to whether any rent is in fact due to be paid by the revisionist herein and only after recording the said finding could the "first date of hearing" as contemplated under Order XV Rule 5, Code of Civil Procedure would arise and as such, without deciding the said issue the learned trial court has pate