HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 226 of 2006 (M/S) Irfan Ahmad @ Mohammad Irfan. ………. Petitioner Versus Addl. District Judge/1st F.T.C./Roorkee And others. ……. Respondents Shri Rajendra Singh, Advocate for the petitioner. Mr. Arvind K. Sharma, Advocate for respondent nos. 2 & 3. Dated: June 14, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed by the petitioner seeking a writ in the nature of certiorari quashing the order dated 21.02.2006 passed by the learned Addl. District Judge/1st F.T.C., Roorkee, District Haridwar in S.C.C. Suit No. 9 of 2004 ‘Smt. Anjana Tyagi and others vs. Irfan Ahmad’ 2. Brief facts of the case, as narrated in the petition, are that the petitioner is the tenant @ Rs. 250/- per month in property no. 65/1 & 65/2 situated at Tyagi Market, Mohalla-Purvi Rajputana, Roorkee, District Haridwar belonging to respondent nos. 2 & 3. The petitioner has paid rent within time to the respondents. On 11.10.2004 the respondent nos. 2 & 3 filed a S.C.C. Suit No. 9 of 2004 ‘Smt. Anjana Tyagi and another vs. Irfan Ahmad’ against the petitioner before the Judge Small Cause Court/Civil Judge (Sr. Div.), Roorkee for eviction and recovery of rent and compensation regarding the property in dispute on the ground of non-payment of rent. On 16.05.2005, the tenant/petitioner filed written statement before the Trial Court. It is asserted in the petition that the tenant/petitioner has already paid rent to 2 the respondent nos. 2 & 3 till September,2004 and the rent for the month of October, 2004 upto February, 2006 was deposited by the petitioner with interest in the Trial Court on 23.02.2006. On 16.08.2005 the respondents/ landlady moved an application under Order 15 Rule-5 & Order-8 Rule-1 of the Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.) for striking off the right to defence of the tenant/petitioner, against which the petitioner filed objection. It is stated that the Trial Court rather granting adjournment to the petitioner on 20.02.2006 proceeded ex-parte against the petitioner. On 21.02.2006, the petitioner moved two applications, one under Order 15 Rule-5 read with Section 151 C.P.C. for depositing the rent and another under Order 9 Rule 7 read with Section 151 C.P.C. for setting-aside the ex-parte order dated 20.02.2006. But the Trial Court vide impugned order dated 21.02.2006 struck off the right to defence of the tenant/petitioner. However, liberty to deposit the rent on petitioner’s risk was given. Accordingly, the petitioner deposited the rent upto February, 2006 before the Trial Court. Aggrieved by the order dated 21.02.2006 the tenant/petitioner has filed instant petition. 3. Denying the averments made in the petition, the respondent nos. 2 & 3 filed a counter affidavit. It has been stated in the counter affidavit that the petitioner was lingering on the case and did not file written statement within the stipulated 90 days time and in the year 2006 the petitioner filed application for depositing the rent. It has been further stated that the petitioner did not come with clean hands and he filed the application for depositing the rent on the dates when the application filed 3 by the respondents was allowed. It is stated that the order of the Trial Court is just legal and no interference is warranted by this Court. It is further stated in the counter affidavit that the tenant/petitioner did not deposit the rent on the first day of hearing and no such application was filed for depositing the same. 4. I have heard Mr. Rajendra Singh, the learned counsel for the petitioner and Mr. Arvind K. Sharma, the learned counsel for respondent nos. 2 & 3 and perused the entire material available on record. 5. Learned counsel for the petitioner argued before the Court that because of non arrangement of money for preparation of written statement the same could not be filed within stipulated time. He submitted that petitioner’s counsel was busy in his personal work on 20.02.2006 i.e. the date fixed before the Trial Court, but the Trial Court after hearing the counsel for respondents ex-parte, fixed 21.02.2006 in the matter and passed the order impugned. He argued that as per the amendment made in the C.P.C. under Order-8 Rule 1 C.P.C., the time period is not mandatory but is directory, therefore without considering the objections, the Court should not have passed the order impugned by striking off the right to defence of the tenant/ petitioner. On the other hand, learned counsel for the respondent nos. 2 & 3 has submitted that the petitioner was lingering on the case and he did not file written statement within the stipulated 90 days’ time and in the year 2006 the petitioner filed application for depositing the rent, therefore the Trail Court has rightly struck off the right to defence of the tenant/petitioner. 4 6. During the course of argument, learned counsel for the respondent nos. 2 & 3 consented that the applications filed by the tenant/petitioner for setting-aside the ex- parte order dated 20.02.2006 may be allowed but the respondent/landlady may considerably be compensated. 7. I am also of the view that, in case, one opportunity is afforded to the petitioner for the sake of to safeguard his right to defence, the very purpose would be served. Therefore, in the interest of justice, this Court thinks it just and proper to provide one more opportunity to the tenant/petitioner to defend himself before the Trial Court. 8. Accordingly, the part of the impugned order dated 21.02.2006 passed by Trial Court striking off the right to defence is hereby set-aside. The application moved by the tenant/petitioner before the Court below under Order 9 Rule 7 read with Section 151 C.P.C, is hereby allowed. Petitioner is permitted to file written statement on or before the next date fixed but subject to payment of cost of Rs. 2,000/- (Rs. two thousand) to be paid to the landlady within a period of one month from today. The Trial Court is directed to decide the aforesaid suit expeditiously. 9. Accordingly, the writ petition is finally disposed of. 10. Interim order dated 10.03.2006 passed by this Court stands vacated. (V.K. Bist, J.) 14.06.2010 NCM: