Rajinder Kumar vs Jai Singh

Swatanter Kumar, J. (Oral)

This revision petition is directed against the order dated 13.1.1998. The necessary facts giving rise to this petition are : that Rajinder Kumar petitioner herein had filed a suit for ejectment and recovery of arrears of rent against Jai Singh Swami, respondent herein. Summons of the suit were issued and according to the petitioner, arrears of rent were not paid. Consequently, he filed an application under Order 15 Rule 5 of the Code of Civil Procedure for striking off the defence of the tenant. This application has been rejected by the impugned order.

In the suit, the petitioner claimed rent from March, 1997 till July, 1997 as the suit was filed on 1st July, 1997.

Notice of this petition was issued to the respondent in the ordinary manner as well as dasti. A copy of the notice produced before this Court shows that the respondent is trying to avoid service of the notice and consequently this was so recorded in the order dated 17th March, 1998 and in the interest of justice the matter was directed to be listed today for hearing.

Today again nobody is present on behalf of the respondent and as such the petitioner is heard ex parte.

The only reason given by the learned trial court in declining to strike out the defence of the tenant is that the rent was not admitted. The following observations of the learned trial court need to be referred at this stage :

"I have gone through the evidence on the file and have also given thoughtful consideration to the contentions made by both the parties. Admittedly, the defendant is a tenant over the suit house. The plaintiff is claiming rent from March, 97 while the defendant is alleging that he has already paid the rent in advance upto February 2000. Although no documentary evidence is produced nor any receipt is produced by the defendants, yet. Yet according to the provisions of Order 15 Rule 5 C.P.C. the admitted rent has to be tendered. In case of default the defence is to be struck off. But in this case, it is not admitted the rent. Hence, the application is not maintainable. So, the same is, hereby, dismissed."

At this stage, it may also be noticed that before filing the suit, the petitioner had served a notice dated 4.6.1997 upon the respondent claiming arrears of rent and specifying that the monthly agreed rate of rent is Rs. 1150/. It was stated in the notice that the said rent has been duly received and the receipt issued thereof till February, 1997. Thereafter the respondent had not paid rent. A copy of the plaint of another suit for injunction filed by Jai Singh Swami, tenant against the present petitioner has been annexed to this petition as Annexure A1. Learned counsel for the petitioner states that this document was and is on the trial court record and the averments made in paragraph 2 of the plaint were brought to the notice of the learned trial court. Paragraph 2 of the plaint instituted by the tenant reads as under :

"2. That the plaintiff is having Ration Card in his name qua the suit property and rent receipts of Rs. 1150/ per month until 5.2.1997 duly signed by the defendant. Photo copy of Ration Card and Rent Receipt are annexed herewith."

From the above undisputed facts, it is clear that the monthly agreed rate of rent is Rs. 1150/ and the tenant was under obligation to discharge his rent specially when he himself claims to have in his possession the receipt for the same amount for the period ending February, 1997. The finding of the learned trial court does not appear to be tenable even prima facie while keeping these documents in mind. The cumulative effect of the documents on record does not even suggest that the amount of rent was not admitted at least prima facie for the disposal of the application. If the tenant states that he had paid the arrears of rent, the onus of such averment is upon the tenant to discharge and he ought to have produced the receipts specially in view of the fact that receipts were bring admittedly issued to him for the rent being paid by him. It is a settled principle of law that lessee must discharge his obligation of payment of rent for the enjoyment of the property under lease.

In the aforestated circumstances, I have no hesitation in setting aside the order dated 13.1.1998. However, at this stage I would not like to direct that the defence of the respondent herein be struck off because he is being heard ex parte in these proceedings. The ends of justice demand that he should be given an opportunity to deposit the arrears of rent within a specific period.

Consequently, while setting aside the impugned order dated 13.1.1998, it is directed that if the respondent herein deposits the arrears of rent at the rate of Rs. 1150/ per month with effect from March, 1997 upto date, within a period of two months from today, his defence shall not be struck off. If he fails to comply with the order, in that event the defence of respondent herein would be liable to be struck off under Order 15 Rule 5 of C.P.C.

It will be obligation of the petitioner herein to bring a copy of this order to the notice of the trial court as well as serve on the respondents.

Revision petition is disposed of accordingly.

A copy of this order be given dasti.