JUDGMENT N.K. Mehrotra, J.
1. This is a revision under Section 25 of the Small Causes Courts Act against the order dated 9.5.1995 passed by the IIIrd Additional District Judge, Bahraich, allowing the application of the plaintiff for striking off defence in S.C.C. Suit No. 7 of 1988,
2. I have heard the learned counsel for the parties and have perused the record.
3. The plaintiff filed a suit for eviction after determination of the lease of the defendant and for recovery of arrears of rent and damages with the allegations that there was an agreement between the parties and the defendant had paid Rs. 3,000 as an advance and the shop in question was let out at the rate of 300 per month for a period of five years. The advance amount was to be adjusted in the rent at the rate of Rs. 50 per month and Rs. 250 per month was to be paid every month as rent. The defendant had adjusted the advance amount during the period from 1.8.1980 to 1.8.1985 but the shop was not vacated. According to the agreement again an agreement was entered between the parties for a period of five years from 1.8.1985. At this time Rs. 15,000 was taken as an advance of rent. The rent was paid upto 15.8.1986 and the defendant did not pay rent from 16.8.1986 to 6.11.1987. The defendant denied the agreement and contended that the rent was Rs. 300 per month but it was agreed that the defendant will pay Rs. 250 per month and he will adjust Rs. 15,000 given as an advance at the rate of Rs. 100 per month after deducting it from the monthly amount due. The defendant contended that from 1.4.1987 onwards the rent due was at the rate of Rs. 250 per month and he had remitted this rent at the rate of Rs. 250 per month through the money order, which was refused by the plaintiff.
4. During the pendency of the suit, the plaintiff moved an application 57 'Ga' for striking off the defence under Order XV, Rule 5, C.P.C. The copy of this application is Annexure-A-5. It is stated in this application that the defendant is not depositing the admitted rent regularly. Therefore, the defence should be struck off. In the application for striking off the defence a detail of those five months was given for which the rent was not deposited in the Court. In the annexed affidavit, it was stated that the defendant has not deposited the entire admitted rent due on the date of first hearing and he has been depositing the rent Rs. 100 less than the admitted amount of the monthly rent. The defendant filed objection and specifically stated that he has already deposited the rent of those months for which the plaintiff alleges the default.
5. A perusal of the impugned order goes to show that the learned trial court has not exercised the Jurisdiction vested in him properly. First of all, I point out the application No. 57C, which is Annexure-A-5 on the record. In this application, the plaintiff has alleged that the rent of the month of May, 1992, June, 1992, December, 1992, March, 1994 and April, 1994 was not deposited. A perusal of the impugned order goes to show that there is no finding of the trial court in the impugned order as to whether these five months' rent have been deposited or not? There is no finding that this rent was if, deposited, then it was deposited within time or beyond time and there is no finding that whatever amount was deposited by the defendant during these months was a proper deposit or not? and if, it was deposited few days late then, whether it amounts to default in regular deposit of monthly rent or not? In the absence of the categorical finding on the allegations made in the application No. 57C the defence of the defendant cannot be struck off.
6. The learned counsel for the opposite party has pointed out the affidavit filed in support of the application for striking off the defence and in this affidavit it is stated that the defendant had not deposited the entire admitted rent on the first date of hearing and in every month, he has been depositing Rs. 100 less than the admitted rent. The learned trial court has decided this issue by holding that the defendant has no right to deduct Rs. 100 from the monthly rent. I find that the trial court at the time of deciding the application under Order XV, Rule 5, C.P.C. had no jurisdiction to decide the rate of the rent. According to the defendant, the admitted rent payable is Rs. 250 per month and he has deposited the entire amount on the first date of hearing at the rate of Rs. 250 per month. Therefore, the trial court has no jurisdiction to record a finding about the entitlement of the plaintiff to get the rent at the rate of Rs. 350 per month and the trial court has also no jurisdiction at this stage to hold that the defendant was liable to deposit rent at the rate of Rs. 350 per month. Both the learned counsel for the parties have pointed out the copy of the application dated 30.8.1988 Annexure-A-4 moved by the defendant before the trial court. After perusal of this application, I find that the defendant has specifically stated that it was agreed between the parties that Rs. 250 per month as rent has to be paid by the defendant. No doubt, it is also mentioned in this application that it was agreed that the rate of rent was enhanced from Rs. 300 to Rs. 350 per month but at the same time it was also agreed that the defendant would pay Rs. 250 per month so the rate of payable rent as Rs. 250 per month is an admitted rent to the defendant. So under Order XV, Rule 5, C.P.C. the defendant was liable to pay only the rent admitted to him. For the purpose of deciding the application under Order XV, Rule 5, C.P.C., the trial court has not to record a finding whether the defendant was entitled to pay Rs. 250 per month or he was liable to pay Rs. 350 per month. The trial court must have recorded a finding whether the defendant has deposited the entire rent due as admitted on the first date of hearing or not? Further, he has to record the finding whether the rent of the alleged five months was even deposited or not and if, deposited whether it would be taken to be the amount as regular monthly rent deposited on due date. In the absence of such findings by the trial court, the impugned order cannot be sustained.
7. Provisions of Order XV, Rule 5, C.P.C. was interpreted in the case of Rakesh and Company v. Hira Lal, 2001 (44) ALR 804, by laying down the proposition that only such amount is liable to be deposited which is admitted to be due.
8. Prima facie the rules of interpretation of statutes do not permit of doing such violence to the words of the statute, as to make their meaning just reverse of what the language suggests. Exceptions may be possible (a) where the language used in a statute is ambiguous or capable of two interpretations or (b) where but for such interpretation absurdity or serious anomaly would result. Therefore, the argument advanced by the learned counsel for the respondent that the rent found by the Court to be due is to be deposited to save the defence being struck off under Order XV, Rule 5, C.P.C. is not tenable.
9. In view of the above, I find that the learned trial court has exercised the jurisdiction not vested in it and has acted in exercise of jurisdiction illegally. Therefore, the revision is liable to be allowed.
10. The revision has been filed under Section 25 of the Small Causes Courts Act while in my opinion it must have been filed under Section 115, C.P.C. but mere quoting of wrong provisions will not affect the maintainability of the revision.
11. The revision is allowed. The impugned order dated 9.5.1995 passed by the IIIrd Additional District Judge, Bahraich in S.C.C. Suit No. 7 of 1988, Om Prakash v. Chhedi Ram is set aside. Let a copy of the judgment be sent to the trial court with the direction to proceed with the case after giving opportunity of defence to the defendant.