Court : Allahabad
Reported in : AIR1981All259
..... civil laws (reforms and amendment) act, 1972 order 15, rule 5 of the code of civil procedure was amended providing for striking off the defence of a tenant defendant in the event of his failure to deposit the entire arrears of rent admitted to be due from him along with certain other sums of money mentioned in order 15, rule 5 on the ..... that rule was amended by this court and subsequently by uttar pradesh civil laws (reforms and amendment) act, 1976, this rule was substituted and sub-rule (1) thereof ..... above, without pronouncing on the aspect as to whether the provision is mandatory or directory two principles seem to be established : firstly that order 15, rule 5 only vests a discretion in the court to strike off the defence and does not compel it to do so and secondly that first hearing of the suit means the date posted for trial or production of evidence.7. ..... before the hearing could take place, an application was given on behalf of the plaintiff-applicant for striking off the defence on account of the aforesaid default, but before that matter could be disposed of, the defendant-opposite-party made a representation and deposited the ..... education society (1980 all lj 695) (supra) it has also been held that an order striking off the defence even if not challenged immediately can be challenged subsequently along with the final decree made in the case.8. ..... moved an application (13-c) on 25-10-1977 under order 15, rule 5 of the code of civil procedure for striking off the defence. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR2004All99; 2003(3)AWC2504
..... in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use and occupation thereof, whether instituted before or after the commencement of the uttar pradesh civil laws amendment act, 1972, the defendant shall, at or before the first hearing of the suit (or in the case of a suit instituted before the commencement of the said ..... 2002 {annexure-1 to the supplementary affidavit) and also an application dated 27.5,2002/annexure-2 to the writ petition praying for framing and to decide as preliminary issue, whether defence was liable to be struck off under order xv, rule 5, code of civil procedure before parties proceeded to lead evidence on other issues.6. ..... contention of the plaintiff, proceeded to decide issue under order xv, rule 5, code of civil procedure and found that the tenant failed to comply with the conditions contained under order xv, rule 5, code of civil procedure ; and hence his defence was liable to be struck off.7. ..... , the plaintiff filed an application (annexure-1 to the writ petition) before the trial court praying that defence of the tenant was liable to be struck off since the tenant had made no deposit and that the defence be struck off at the time of final decision of the suit. ..... this regard, the court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1975All211
..... the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the uttar pradesh civil laws amendment act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due ..... finding and the decree of the court below, it cannot be possible to strike off the defence and reverse the decree on the finding that the relationship of landlord and tenant did exist ..... this application under order xv, rule 5 of the code of civil procedure has been made by the plaintiff-appellant for striking off the defence and deciding the appeal without giving the defendant-respondent a hearing in the appeal because the defendant has not deposited the amount of rent alleged to ..... of rule 5 is to strike off the defence only before the decree of the court comes into ..... default in this regard, the court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his ..... the question of striking off the defence arises only before the suit is ..... framed by the trial court the trial court accepting the plaintiff's case, and disbelieving the defence version decreed the suit. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1979All230
..... the amending act used the words 'the controller may order the defence against ..... sc 1317) by the learned counsel for the defendant and it was urged that as it was held in that case that the power to strike out the defence was discretionary and optional, this court should also take the same view in the present case. ..... matter, it appears to me that the court had no jurisdiction to refuse to strike out the defence when the rent had not been deposited in the manner prescribed by order xv, rule 5, c.p.c. ..... income-tax officer, bareilly (air 1971 sc 33 (36)) the supreme court in dealing with section 35 of the income-tax act, 1922 which provided that, the authorities may rectify any mistake apparent on the face of the record, held that the authorities were bound to exercise the power if conditions for ..... although, the judge small cause court had not struck out the defence but even he held that the deposit of the monthly rent ..... suit, an application dated 29-10-1975 (was made) for striking off the defence on the ground that as the defendant had neither deposited nor paid rent, the defence was liable to be struck out under order 15, rule 5, c.p.c. ..... counsel for the defendant urged that even when a defence is struck out, a defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence adduced on behalf of the plaintiff a decree ..... civil laws (amendment) act ..... was added to order xvof the civil p. c. ..... revision filed under section 115 civil p. c. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1976All261
..... the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the uttar pradesh civil laws amendment act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, ..... the rule empowers the court to refuse to entertain any defence or strike off the defence in case the lessee commits any default in making the requisite deposit unless the court, after considering any representation made by the defendant, allows him further time to make the requisite deposits on ..... it is not obligatory on the court to refuse to entertain any defence or to strike off the defence in a case default is committed by the defendant in making the ..... made an application praying that the defence be struck off and an ex parte decree be passed against the defendants as they had failed to deposit the arrears of rent and damages as required under order xv, rule 5, civil procedure code. ..... any default in this regard, the court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence on, as the case may be, strike off his ..... of 1972 provides:--'(5) striking off defence on non-deposit of admitted rent, .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1979All359
..... civil laws (amendment) act no. ..... the plaintiff, however, filed an application for striking off the defence on the ground that as the defendant had not deposited the rent on the first hearing,the defence was liable to be struck out. ..... all these reasons, i hold that since 20th march, 1975 was fixed for final hearing and as on that date the defendant deposited the entire rent which had been due from him, the defence was not liable to be struck out.9. ..... while striking off the defence, the judge small causes court held that 28th feb. ..... the application was accepted by the judge small cause court and the defence was struck off. ..... however, we are not concerned with this amended provision.8. ..... by the amendment made the legislature has made it clear that the expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are ..... has now been amended by u. p. ..... act no. ..... act no. ..... act no. ..... aggrieved, the defendant went up in revision under section 25 of the provincial small cause courts act. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1977All22
..... civil laws amendment act, the appeal was transferred to the district judge ..... for execution during the years 1945 and 1946, but on the objection of the defendant, the execution applications were dismissed, on the ground firstly, under the order issued by the district magistrate under the defence of india rules the eviction of tenants was not permitted and then under the ordinance issued by the governor and finally under the 0. p. ..... though an argument was raised that the amendment did not bring about any such change so as to exclude the flour mills in question from the protection of the act, but we are not impressed with it as throughout in the courts below also the parties proceeded on this ..... on 7th august 1944 the district magistrate in exercise of his powers under the defence of india rules, issued an order that no tenant would be evicted from any accommodation defined in the order in execution of any decree or ..... for the defendants appellants raised two grounds in support of their appeal : the first ground was that the defendants' possession was lawful by virtue of the operation of the order of the district magistrate under defence of india rules, then by ordinance no. ..... that time the protection afforded by law had ceased due to amendment in the definition of 'accommodation' by u. p. ..... was further pleaded that the defendants remained unaffected by the amendment of the law by u. p. ..... plaintiff brought a suit in the court of the civil judge saharanpur, for recovery of mesne profits. .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1974All389
..... civil laws (amendment) act, which permits a presumption to be drawn when a certified copy of a document, which has been registered under the registration act ..... civil laws (amendment) act, 1954 will come to the assistance of the defendants-appellants and the court will notdraw a legal presumption in favour ofthe defendants-appellants that ..... civil laws (amendment) act ..... realising this weakness in the defendants-appellants' case their learned counsel fell back upon section 90 of the indian evidence act and contended that the document being more than 20 years old no proof of it was required and the court should presume that the sale ..... the learned counsel for the defendants-appellants that the sale deed in question was the basis of the defence and was relied upon by the defendants in their written statement. ..... the circumstances of the registration of the sale deed dated 18-6-1916 under the indian registration act was also pressed into service operating as constructive notice to babulal and his heirs of the assertion of title by harnarain and his heirs to the exclusive ..... new section lays down that the presumption shall not be made in respect of any document which is the basis of a suit or of a defence and is relied upon in the plaint or in the written statement. ..... this is an appeal by the defendants from the judgment and decree of the learned civil judge of agra decreeing the plaintiff-respondents' suit for partition of their half share in a shop situate in kumari bazar, agra, fully described at .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1972All537
..... civil laws (amendment) act of 1954, a decree of small cause court on being transferred to the court of the munsif for execution could be executed by attachment and sale of immovable property of the judgment-debtor. ..... , air 1964 all 34 in support of the proposition that the jurisdiction of a transferee court to proceed against the immovable property of the judgment-debtor for executing a decree of the small cause court having been taken away by an amendment of the law, the judgment-debtor would not be barred by the principle of constructive res judicata from raising the objection at a subsequent stage. ..... it was also submitted that no plea having been raised on behalf of the plaintiff that the defence set up by the defendants was barred by res judicata, the court below erred in law in allowing such a plea to be raised for the first time in appeal. 6. ..... prior to the amendment of section 42 of the civil procedure code, by the u. p. ..... it was submitted by the learned counsel for the defendant-appellant that in the execution case no notice was sent to the judgment-debtor under order 21, rule 66 of the civil procedure code and that no opportunity was given to file any objection. ..... but after the amendment, in so far as u. p. ..... on appeal by the plaintiff the learned civil judge, who heard the appeal, allowed it and decreed the plaintiff's suit. .....
Tag this Judgment!Court : Allahabad
Reported in : 2005(1)ARC762
..... , as amended by the code of civil procedure (amendment) act 2002, is reproduced ..... reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.'6. a number of civil revisions are being filed in which the written statements have been rejected and the suit has been ordered to proceed under order viii, rule 10 c.p.c, on the question whether the trial court can ..... . (amendment) act, 2002 was to expedite the ..... the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days, as may be specified by the court, for ..... . order viii, rule 1 was amended to specify a time limit ..... the revision is directed against the order passed by the civil judge, senior division, district ghaziabad, on 9.2.2005 in ..... , 'in these circumstances after the amendment of order viii, rule 1 ..... that:'written statement is not an appeal or an application or even a suit and therefore, limitation act cannot help the court for condoning the delay.'8 ..... . as amended in 2002 has on the one hand provided discretion to the court to accept written statement beyond thirty days from the date of service of summons but has simultaneously circumscribed the same also by .....
Tag this Judgment!