IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1644 of 2009 (M/S) Sri Dinesh Kothari S/o Sri Gunanand Kothari R/o 104/2 Shivalik Palace Dehradun Road, Rishikesh District Dehradun. ………Petitioner Versus Sri Navneet Karnwal S/o Om Prakash Karnwal R/o Adwaitanand Marg, Near Shivkuti Tehsil Rishikesh, Dehradun District Dehradun. ….Respondent. Shri Ramji Srivastava, Advocate for the petitioner. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Article 226 read with 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 01.05.2009, passed by trial court (Judge, Small Cause Court/Additional District Judge/Fast Track Court IV, Dehradun) in S.C.C. suit No. 06 of 2008, whereby said court has dismissed the plaintiff’s application 21-C for striking of defence of the defendant/respondent. 2. Heard learned counsel for the petitioner. 2 3. Brief facts of the case are that the petitioner Dinesh Kothari, has instituted S.C.C. suit No. 06 of 2008, against the respondent- Navneet Karnwal, with the pleading that respondent is his tenant on rent at the rate of Rs. 3,000/- per month in the shop. The suit for recovery of rent, mesne profits and for ejectment of defendant has been instituted on the ground of default in payment of rent. It appears that during the pendency of the suit, the plaintiff (present petitioner), moved an application 21C in the suit. Said application was rejected by the trial court, vide impugned order dated 01.05.2009, refusing to strike of the defence of the defendant. 4. Order XV Rule 5 of Code of Civil Procedure, 1908 (as amended vide U.P. Act 57 of 1976), requires that a lessee shall deposit the entire amount of admitted rent together with 9% interest by the first date of hearing and shall further deposit every month the monthly rent due within a week of next month. The trial court dismissed the application 21C on the ground that the defendant has not admitted the relationship of landlord and tenant between the parties, as such, it cannot be said that there was an admitted rent, which was required to be paid by the defendant under Order XV Rule 5 of the Code. 3 5. Having considered submissions of learned counsel for the petitioner, and after going through the papers on record, I do not find any error of law, committed by the trial court in dismissing the application 21 C. Copy of the written statement, which is annexed as annexure-2 to this writ petition, shows that in para-3 of the written statement, the tenant has denied the relationship of landlord and tenant, as such, it cannot be said that there was admitted default on the part of the defendant. The plea taken by the defendant might be false and it is for the trial court to see whether the relationship exists or not and whether the defendant is liable to be ejected on the ground of default in payment of rent, but it is not a case where the defence is required to be struck of under Order XV Rule 5 of the Code, as prayed by the plaintiff. 6. For the reasons, as discussed above, this writ petition is summarily dismissed without expressing any opinion as to the final merits of the case. (Stay application No. 8374 of 2009, also stands dismissed). (Prafulla C. Pant, J.) Dt:24.09.2009 Sweta 4