Heard Sri Manu Saxena, learned counsel for the petitioners and Sri Ashish Nigam on behalf of respondents no.1 to 3.
This writ petition has been filed for quashing the order dated 27.4.2010, Annexure-1 to the writ petition in Revision No. 53 of 2007. Further prayer is for issuing a writ of certiorari quashing the order dated 8.10.2007, Annexure-2 allowing the application 46 Ga filed by the respondents for striking out the defence of the petitioners in Suit No.55 of 2000.
The facts arising out of the writ petition are that a suit was filed for ejectment and arrears of rent being Suit No. 55 of 2000 on 31.5.2000. The allegation in the plaint was that monthly rent was Rs. 500/- per month excluding the municipal taxes and electricity charges. Further it was enhanced from time to time. It appears that the tender was submitted for depositing the amount and that was accepted but the suit year in stead of 2000 was mentioned as Suit No.55 of 2002. On an objection filed by the plaintiff-respondent, the objection was allowed. Against that order a revision was filed and the revision was allowed and the order dated 2.9.2003 was set aside holding therein that it was a sufficient deposit and this was a mistake mentioning the suit year as 2002. Subsequently, the respondent-landlord made an application for striking out the defence of the petitioners. The said application was allowed and the revision filed by the petitioners has been dismissed by the order impugned.
The contention raised by the petitioners is that as the revision filed by the petitioners was allowed holding therein that it was a sufficient deposit and it is not a case of the respondent-landlord that the amount deposited by the petitioners is not sufficient, the objection has been taken only on the ground that being mentioning the wrong suit year, the respondents have suffered a loss and was not able to withdraw the said amount. The petitioners were granted time to make an application but no application was filed. In such circumstances the Judge Small Causes Court has passed an order striking out the defence of the petitioners.
I have considered the submissions made on behalf of the parties and perused the record. There does not appear any dispute from the record that the revision filed by the petitioners was allowed holding therein that the amount deposited by the petitioners was sufficient and there is full compliance but as the year has wrongly been mentioned, in such circumstances, the subsequent application filed by the respondent-landlord has been allowed. In my opinion, it cannot be a ground for striking out the defence of the tenant only on this technical ground. The court was free to pass appropriate orders to decide the suit itself. Once a finding has been recorded by the competent court of law that it was a sufficient deposit, in my opinion, only on the basis of subsequent application, it cannot be held that there was no sufficient deposit only on the technical ground and, therefore, the defence of the petitioners tenants was liable to be struck down.
Learned counsel for the respodent has finally submitted that the writ petition may be allowed and the order impugned may be quashed and the court below may be directed to decide the suit itself finally on merit.
In such circumstances after going through the record and pleading of the parties, I am of opinion that the courts below only on the technical ground has passed the order impugned, therefore, that is not sustainable in law.
With the consent of of the parties, this writ petition is allowed and the order impugned 27.4.2010 Annexure-1 and order dated 8.10.2007, Annexure-2 passed by Judge Small Cause Court are hereby quashed and the Judge Small Causes Court is directed to decide Suit no. 55 of 2000 within a period of three months from the date of production of certified copy of the order after affording full opportunity to the parties.
No order is passed as to costs.
Order Date :- 28.6.2010 V.Sri/-