1. Heard Sri Atul Dayal, learned counsel for the plaintiff-revisionists and Sri M.N. Maurya, learned counsel, holding brief of Sri Ramendra Asthana, who appears for the defendant-respondents.
2. In the suit of the plaintiff-revisionists for arrears of rent and eviction, the application filed under Order 15, Rule 5 of CPC has been rejected by the court below by the impugned order dated 16.09.2014.
3. The submission of Sri Atul Dayal, learned counsel for the plaintiff-revisionists is that even if the defendant-respondents denied the relationship of landlord and tenant or the title of the plaintiff-revisionists still they are liable to comply with the 2nd part of the Order 15, Rule 5 of the Code of Civil Procedure applicable to the State of U.P. regarding deposit of monthly amount due, failing which their defence is liable to be struck off.
4. The court below has refused to struck off the defence of the defendant-respondents for the reason that the defendant-respondents have denied the relationship of landlord and tenant and the stage has not come in the suit to decide about the said relationship.
5. Order 15, Rule 5 CPC applicable in the State of U.P. is in two parts. The first part deals with the deposit of amount admitted by the tenant to be due and the second part deals with the monthly amount due whether it is admitted or not by the tenant. In default in payment of either of the two amounts mentioned in the aforesaid two parts of Rule 5 Order 15 CPC, the court would be empowered to struck off the defence.
6. In Pradyuman Jee v. Special/Addl. District Judge, Ballia, 2008 (71) ALR 892, it has been held that in case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount referred to in the first part of Rule 5 Order 15 CPC, but he would still be required to deposit "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit whether he admit the said amount to be due or not.
7. The aforesaid decision was followed by this Court in the case of Mukesh Singh and another v. Ramesh Chand Solanki, 2011 (89) ALR 655. His Lordship therein held that as the tenant therein had not complied with the second part of Rule 5 Order 15 CPC the defence was rightly struck off irrespective of the fact that he denied the relationship of landlord and tenant.
8. A similar view has also been expressed by another Judge of this Court in the case of Yusuful Haq @ Yusuf and others v. Smt. Ghayyur Fatma and others, 2012 (92) ALR 526.
9. In the aforesaid case it was held that where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made in spite of the fact he admits any amount to be due or not.
10. In view of the above decisions which have not been considered by the court below in rejecting the application filed under Order 15, Rule 5 CPC, the order impugned stand vitiated in law.
11. Accordingly, the order Dated 16.09.2014 passed by the trial court in SCC Suit No. 62 of 2013, Smt. Mata Devi and others v. Vipin Kumar and others is hereby set aside and the court below is directed to reconsider and decide the application filed under Order 15, Rule 5 CPC afresh in accordance with law.
12. The revision is allowed with no order as to costs.
Revision allowed.