ORDER
1. By means of the petition under Art. 226 of the Constitution the petitioner-defendant in a suit for ejectment and arrears of rent, has prayed for writ of certiorari quashing an order dt. 1-11-1993 of the respondent No. 2, J.S.C.C., Ghaziabad, whereby he struck off the defence of the petitioner under Order 15, Rule 5, C.P.C. and order dt. 4-4-1994 of the respondent No. 1, IX Additional District Judge, Ghaziabad confirming the same in revision.
2. Learned counsel for the petitioner and the learned counsel for the caveator-respon-dent, the plaintiff, in-the suit, have been heard and the material placed on record perused.
3. In the suit filed against the petitioner besides ejectment was claimed a sum of Rs. 4801.40 as arrears of rent upto 28-6-1990 and damages @ Rs. 2000/- per month for the period 29-6-1990 onwards. The rate of rent was alleged to be Rs. 665/- per month upto 31-3-1990 and Rs.730/- per month from 1-4-1990 till the date of termination of tenancy.
4. The defendant denied that the rate of rent was ever enhanced from Rs. 665/- to Rs. 730/- per month, and pleaded that rent upto 24-3-1990 had already been paid by means of cheque. Apart from it, the plaintiff had taken a deposit of Rs.3000/- at the inception of the tenancy, out of it Rs. 1500/-was to be adjusted towards the advance rent for the first three months and the balance to remain as security to be returned with interest at the time of getting the premises vacated. Along with interest the total amount on this count Rs. 11720/- is due to the defendant himself, the defendant was also entitled to adjustment of a sum of Rs. 2000/- spent on electric connection and fittings.
5. It appears on application under Order 15, Rule 5, C.P.C. was moved by the plaintiff-respondent on 4-1-1991 praying for the defence to be struck off on account of non-deposit of the amount of rent due. However, since the petitioner-defendant submitted a tender form for deposit, the application of the plaintiff to strike off the defence was rejected under the circumstances. No. deposit was however made and on 22-9-1993 another application under Order 15, Rule 5, C.P.C. was moved to strike off the defence on allegation that the defendant has not deposited arrears of rent or mesne profits on due date. In his objection to the said application the defendant denied the liability to deposit any amount under Order 15, Rule 5, C.P.C. alleging that plaintiff himself owed Rupees. 22,000/- to him towards the amount of security, interest, electric connection and annual white washing etc., hence no amount towards rent was payable. By the impugned order the learned J.S.C.C. rejecting the objection, directed the defence to be struck off. The said order was confirmed in revision.
6. The first contention on behalf of the petitioner by his learned counsel is that no amount being admitted to be due towards rent, the petitioner was not liable to make any deposit under Order 15, Rule 5, C.P.C. A perusal of Rule 5 of Order 15, C.P.C. as amended in U.P. would show that the deposit contemplated therein is separable in two parts. The first part requires deposit, to be made by the defendant on or before the first date of hearing of suit, of the entire amount admitted by him to be due together with interest thereon @ 9%. Clearly, therefore, the liability to deposit under this head accrues only if the defendant admitted any amount to be due as rent for the period upto the first date of hearing. In the instant case, however, the defendant did not admit any amount to be due till the relevant date. Consequently, he was not liable to make any deposit and the liability of the defence being struck off on that count did not arise.
7. The second part of Rule 5 of Order 15 however deals with deposit of monthly amount falling due after the first date of hearing. Unlike the first part, it lays down that the deposit has to be made of monthly amount due within a week from the date of its accrual throughout the continuation of the suit, whether or not the defendant admits the amount to be due. The plea of the petitioner that in this regard also he was not liable to make any deposit at all because according to him the plaintiff himself owed money to him, and he was not liable to pay even future rent, is clearly untenable in view of the legislative mandate that the amount has to be deposited month to month whether or not the defendant admits it to be due. Such deposit, each month, thus, is the very foundation of the right of the defendant to set up defence. The defendant admittedly not having made any deposit of monthly amount after the first date of hearing, till date, there was no option for the learned J.S.C.C. but to strike of his defence on account of breach of this mandate.
8. The contention that evidence should have been led and enquiry made about the claim of amount alleged by the petitioner to be due to him, is untenable in view of above requirement of the second part of Rule 5 of Order 15.
9. The alternative argument advanced on behalf of the petitioner that in the context of the facts of this case the defence should not have been struck off is also not tenable. True it is that it is not mandatory to strike off the defence in every case where there is default in compliance of Rule 5, but recourse to such non-striking would be justified only if from the materials on record any extenuating circumstance is made out. This principle has been laid down by the Supreme Court in Bimal Chand Jain v. Gopal Agarwal AIR 1081 SC 1657. However, in the instant case there are no facts and circumstances showing any good reason for not depositing monthly amount falling due each month, despite clear provision of law and application moved twice by the plaintiff in this regard, and once even tender for deposit being submitted resulting into rejection of the plaintiffs application in anticipation of the deposit being made.
10. Mst. Mohini Kumari v. II A.D.J., Lucknow (1989) 2 All Rent Cas 158 cited by the petitioner also does not help because in it also it has been laid down that the defendant is liable to pay the monthly amount due at the admitted rate of rent. In the said case the defendant had been depositing monthly amount due at the admitted rate well in advance.
11. In Dr. Lakhan Lal Sharma v. IIIrd Additional District Judge, Bareilly (1985) 1 All Rent Cas 545 the question was with regard to the first part of Order 15, Rule 5 and not the month to month amount falling due after the first date of hearing. The observations therein also thus do not come to the rescue of the petitioner, where the default by not depositing monthly amount for any month after the first date of hearing has been a conscious act of the petitioner, without any justification and in violation of express mandate of R. 5.
12. For all the above reasons, therefore, there is no merit in this writ petition and it does not merit admission.