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Judgment
Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.
The facts in brief are that SCC Suit No. 51 of 2002 was filed by Waqf Khuda Band Tala through Allalaulad situated in Mohalla Chob Faroshan Tehsil and District Saharanpur, respondent No. 3 against the petitioner for arrears of rent and eviction.
It is alleged in the plaint that the property in dispute was waqf Allalaulad. As per provisions of section 2 of U.P. Act No. 13 of 1972 the instrument of the property was, not effective and the properly was beyond the ambit of provisions of U.P. Act No. 13 of 1972, hence the defendant was not entitled to get the benefit of the provisions of the aforesaid Act.
The suit aforesaid had been withdrawn vide order dated 27.2.2002 with liberty to file it again. The plaintiff was a registered waqf and its mutawali was Sri Swalehabad son of Hafiz Noor Ahmad, The said waqf was registered with Sunni Central Waqf Board, Luckow at Waqf No. 11A and 42A of District Saharanpur, hence a suit was again filed against the defendant. It is further alleged that the plaintiff did not want to retain the defendant as his tenant, hence he gave a registered notice dated 11.7.1996 which was received by him on 127.1996. The plaintiff terminated the tenancy of the defendant on the expiry of 30 days from receipt of the said notice requesting the defendant to vacate the concerned accommodation and to handover its peaceful possession along with due to the petitioner within a period of one month from the date of receipt of the notice. However, inspite of service of notice the defendant neither handed over the possession of the property in dispute to the plaintiff not paid the rent and water lax etc. hence, he was liable to be dispossessed from the properly in dispute.
The aforesaid SCC suit is still pending in the Court of Judge Small Causes Court, Saharanpur in which the petitioner has filed his written statement An application under Order XV, Rule 5 of the Code of Civil Procedure was filed by the plaintiffrespondents for striking off the defence which was opposed by the defendantpetitioner by filing objection. The Trial Court/Judge Small Causes Court, Saharanpur vide order dated 24.11.2008 allowed the application directing striking off the defence of the petitioner.
It appears from record that the petitioner has disputed the title of the waqf as landlord and according to the learned Counsel for the petitioner, the tenant recognizes sons of the Mutawalli of the waqf as his landlord
Sri Atul Dayal, learned Counsel for the respondents submits that the property in dispute was gifted by their sons to their father Swalchabad who treated the waqf which is a registered one and that the tenants have failed to pay the rent to the landlord for more than (sic) months is liable to be evicted after striking out the defence of the tenant.
He has placed reliance upon the judgment in Anandi Devi V. Om Prakash, 1987 (supp.) SCC 527. in which it has been held that where tenant is in default of payment of arrears of rent together with interest and costs in compliance with Order XV, Rule 5 of C.P.C., the application of the landlord for striking off defence must be allowed and eviction suit is liable to be decreed,
The Court below after hearing Counsel for the parties and on perusal of the record has recorded a finding of fact that the waqf is registered under section 36 of Act No. 1995, and hence the petitioner is in the knowledge that after its ovation the waqf has become the landlord. The Court below has also recorded a finding that the petitioner does not dispute the tenancy and in cast the disputes the tenancy, it is upon him to have deposited the arrears of rent under section 30 of U.P. Act No. 13 of 1972. From the judgment and records of the Court below appended in the petition it is apparent that the petitioner has neither deposited the arrears of rent in the name of waqf nor in the name of the sons to whom he himself admits to be his landlords.
In a similar mailer, this Court in the case of Jai Pal Gupta v, Kali Charan and offers, 2005 (61) ALR 660 has had that where it is found that the tenant has not deposited amounts towards arrears of rent due on the first dale of hearing or may have failed to make deposit even thereafter regularly it would be pragmatic to exercise the inherent powers of the Court and pass necessary orders to strike off the defence of the defendants in terms of the statutory provisions under Order XV, Rule 5 of the Code of Civil Procedure in the ends of justice.
For all the reasons stated above, in my considered opinion, the defence of the petitioner has rightly been struck off by the Court below. There is no illegality or infirmity in the order impugned.
The writ petition is accordingly, dismissed. No order as to costs.