A.F.R.

Court No. - 2

Case :- S.C.C. REVISION No. - 19 of 2023

Revisionist :- Amit Sharma

Opposite Party :- Smt. Shikha

Counsel for Revisionist :- Babban Prasad Dwivedi,Hriday Narayan Pandey

Counsel for Opposite Party :- Ashish Kumar Singh

Hon'ble Neeraj Tiwari,J.

Supplementary affidavit filed today is taken on record.

Heard learned counsel for the revisionist and Sri Ashish Kumar

Singh, learned counsel for the opposite party.

Present Revision has been filed challenging the order dated

20.01.2023 as well as Decree dated 25.01.2023, passed by the

Additional District & Session Judge, Ghaziabad in Suit No. 42 of

2016.

Learned counsel for the revisionist-defendant submitted that Suit

No. 42 of 2016 was filed by the plaintiff-opposite party. He next

submitted that plaintiff-opposite party has filed application dated

09.02.2022 under Order XV, Rule 5, C.P.C. to strike off the

defence of the revisionist-defendant, which is dully replied by

revisionist-defendant by reply dated 18.04.2022. He next

submitted that, while passing the impugned order dated 20.01.2023

reply of revisionist-defendant has not been properly considered. In

the reply dated 18.04.2022, revisionist-defendant has stated that

filing of Suit No. 42 of 2016 was itself defective, as it has been

filed before 30 days from the date of notice sent by the counsel for

the plaintiff. He also submitted that as the rent agreement was

extended for 11 months w.e.f. 01.02.2016 and he had paid the

entire dues, therefore, nothing was due on the petitioner-defendant

to pay, therefore, impugned order is bad and is liable to be set

aside.

Learned counsel for the revisionist-defendant submitted that Order

XV Rule 5 is having two parts, first part says that on or before the

first hearing of suit, revisionist-defendant was required to deposit

the entire admitted amount and, thereafter, rent on month to month

basis. In the present case, the application dated 09.02.2022 has

been allowed on the ground that revisionist-defendant has not paid

a single penny on month to month basis as rent after first hearing

of the suit initiated in 2016, which has also not been denied in the

reply dated 18.04.2022 filed by revisionist-defendant, rather this

has been accepted.

He next submitted that application of revisionist-defendant was

allowed only on the ground that he has not deposited any rent after

initiation of suit and after first date of hearing. In support of his

contention, learned counsel for the plaintiff-opposite party has

placed reliance on the judgment of this Court in the case of Radhe

Shyam Chaurasiya and Another Vs. Smt. Babita: 2022 ADJ 272

and judgment of Apex Court Asha Rani Gupta Vs. Sri Vineet

Kumar: (2022) 0 Supreme(SC) 594.

Being confronted by the court, even before Bar, Sri Pandey,

learned counsel for the revisionist-defendant fairly accepted that

no rent has been deposited and monthly rent has been deposited

after initiation of suit proceeding and after first date of hearing of

the case.

I have considered submissions made by learned counsel for the

parties and perused the record as well as judgments so relied upon.

The fact of the case, so far it relates to non deposit of monthly rent

is undisputed.

From the perusal of Order XV Rule 5, it is apparently clear that

revisionist-defendant had no option, but to deposit rent on month

to month basis whether admitted or not admitted by him.

This issue was before this Court in the matter of Radhe Shyam

Chaurasiya(Supra) and this Court after considering different

judgments has held that it is mandatory to deposit rent on month to

month basis before the court, where the suit has been instituted.

Relevant paragraphs of the said judgment are quoted hereinbelow:

"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

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