Hari Swarup, J.
1. 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 be due.
2. The plaintiff-appellant had filed a suit for ejectment of the defendant from the premises in dispute and for recovery of arrears of rent and damages for use and occupation. The plaintiff's case was that the defendant was his tenant and had not paid rent. The plaintiff claimed to have terminated the tenancy by a notice under Section 111(h) read with Section 106 of the Transfer of Property Act. He also claimed that the defendant had committed default in payment of rent as he had not paid rent within one month of the notice of demand. The plaintiff also claimed that the U. P. (Temporary) Control of Rent and Eviction Act was not applicable to the premises in dispute as the constructions had been made after 1951. The defence, on the other hand, was that the plaintiff was not the landlord. There was no default in payment of rent and the premises had been constructed prior to 1951 and the U. P. (Temporary) Control of Rent and Eviction Act was applicable. Various issues were framed by the trial court The trial court accepting the plaintiff's case, and disbelieving the defence version decreed the suit. The lower appellate court, on appeal filed by the defendant, setaside the trial court's decree and dismissed the plaintiff's suit. The lower appellate court accepted the defendant's case that the plaintiff was not the landlord and there did not exist a relationship of landlord and tenant between the parties. It further held that on that basis notice terminating the tenancy was invalid and the plaintiff was not entitled to eject the defendant from the accommodation in dispute.
3. Rule 5 has been added to Order 15 of the Code of Civil Procedure by the U. P. Civil Laws Amendment Act, 1972 (U. P. Act No. 7 of 1972). Rule 5 runs as under:
'5. Striking off defence on non-deoo-sit of admitted rent, etc.-- In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during 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, and thereafter throughout the continuance of the suit deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of 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 or, as the case may be, strike off his defence.'
4. According to the learned counsel, this provision applies even in cases of appeal and if the amount is not deposited on the first date of hearing of the appeal, the defence has to be struck off. The argument is that the word 'suit' should be read as 'appeal' and the first hearing of the suit should be taken as 1st hearing in appeal. The contention is not tenable as Rule 5 has been added to Order XV which deals with the disposal of the suit at the first hearing. The first hearing of the suit under the Code of Civil Procedure means the date on which issues are settled. Under Rule 1 if the parties are not at issue on any question of law or of fact, the court may at once pronounce judgment. If the parties are at issue on some question of law or of fact, the court fixes dates for final hearing ofthe suit. The question of striking off the defence arises only before the suit is finally disposed of. After the decree of the court dismissing the suit intervenes, the question of striking off the defence does not arise.
5. Today the suit stands dismissed on the finding that the relationship of landlord and tenant does not exist between the parties. After this 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. The intention of Rule 5 is to strike off the defence only before the decree of the court comes into existence. If the defence is struck off at this stage the result may be the setting aside of the decree even when on the findings legally reached by the court below, it cannot be deemed to be contrary to law. The intention of Rule 5 which has been inserted in Order 15 of the Code of Civil Procedure is to prevent proceedings and not to destroy decrees.
6. Looking from the other angle, the first hearing of the appeal takes place when it is heard ex parte under Order 41, Rule 11, C. P. C., and the respondent can possibly have no opportunity of making the deposit before that date. The rule cannot, therefore, apply to cases of pending appeals.
7. The application is dismissed.