Allahabad High Court
Sudhir Chandra Gupta vs Dr. S.K. Raj And Another on 26 March, 1998
Equivalent citations: 1998(2)AWC1335
Author: O.P. Garg
Bench: O.P. Garg
JUDGMENT O.P. Garg, J.
1. This is a revision application under Section 25 of the Provincial Small Causes Court Act which has been preferred against the order dated 19th December. 1997 passed by the IInd Additional District Judge, Moradabad rejecting the defence of the defendant-revisionist under Order XV, Rule 5, Civil Procedure Code.
2. Heard Sri A. K. Tiwari, learned counsel for the defendant-revisionist and Sri K. K. Arora, learned counsel for the plaintiff-opposite parties.
3. The plaintiff-opposite panties have instituted a S.C.C. Suit No. 1 of 1993 against the defendant-revisionist for his eviction from the disputed accommodation and for recovery of arrears of rent and mesne profit. Admittedly, the relationship of landlord and tenant exists between the parties and the defendant-revisionist was the tenant of the house at the monthly rent of Rs. 1.400. The suit was contested by the defendant-revisionist and it is alleged that after the service of the Illegal notice, the defendant-revisionist besides sending the reply to the notice also remitted a sum of Rs. 4,200 as being rent due through cheque. In the written statement filed by the defendant-revisionist, he has. Inter alia, denied his liability to pay the rent and also alleged that no rent was due as he has deposited a sum of Rs . 1,400 towards the rent even for that period for which no rent was due and with interest in compliance of the provisions of Order XV, Rule 5. C.P.C. According to the defendant-re vision 1st the rent for the period 15.1,1997 to 24.2.1997 could not be deposited even though the defendant-revisionist has paid the money to his counsel and his clerk regularly for depositing the same in the Court. According to the defendant-revision 1st, he filed an application on 26.11.1997 with a tender seeking to deposit the rent but the office gave a wrong report. He further filed his representation/application dated 5.12.97 with an affidavit praying for condonation of delay in deposit the rent which has fallen due.
4. The Court below after taking into consideration the respective submissions of the parties came to the conclusion that a perusal of the entire deposits of rent made by the defendant-revisionist since 1993 goes to show that the deposits have not been made by the defendant-revisionist regularly on due dates and that the defendant-revisionist has also not moved any application for extension of time to deposit the rent and that the defendant-revisionist has not at all paid the rent for the period 15.1.1997 to 14.2.1997. Accordingly, the defence of the defendant-revisionist was rejected. The learned counsel for the plaintiff-opposite parties has supported the findings of the Court below.
5. The learned counsel for the defendant-revisionist urged that the defend ant-revision 1st could not be made to suffer on account of the fault of his counsel or his clerk when they failed to deposit the rent for the period 15.1.1997 to 14.2.1997 and that the Court below has not considered the deposit of amount by the defendant-revisionist as well as the application filed for condonation of delay on 5.12.1997. It was further urged that the order passed by the Court below rejecting the defence of the defendant-revisionist is too harsh and therefore cannot be sustained.
6. At the very outset, it may be pointed out that the purpose of enacting the provisions of Rule 5 in Order XV was not to give lever to the landlord to get a tenant punished for insignificant lapses. The purpose was merely to ensure that the dues of the landlord are properly secured and he can get his rent regularly even though the litigation may continue. The matter came to be considered in Bimal Ghana Jain v. Sri Gopal Agarwal, 1981 ARC 463. In which it was held that the provisions of Order XV. Rule 5. C.P.C. are discretionary and the Court has power not to strike off defence even in the absence of a representation by tenant if on facts and circumstances already existing on record it finds good reason for not striking off defence. The Hon'ble Supreme Court further held that it must be remembered that an order under sub-rule (1) striking off the defence is in the nature of a penalty and serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. The Hon'ble Supreme Court further observed that there is a reserve of discretion vested in the Court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so and that the provisions of Order XV, Rule 5 did not oblige the Court to strike off the defence in every case of default.
7. In the instant case, the defendant-revisionist has given a very cogent and plausible reason that the rent for the period 15.1.1997 to 14.2.1997 could not be deposited on account of the lapse of his counsel or his clerk even though he has paid the money to his counsel to deposit the rent regularly. In support of his contention, the learned counsel for the defendant-revisionist placed reliance on the decision of a learned single Judge of this Court in Chaman Lal Sharma v. 1st Additional District Judge and others, 1991 All LJ 1043. wherein it was held that for the lapses on the part of the counsel, the litigant should not be punished. In that case, the tenants have paid the arrears of rent to his counsel who failed to deposit the same in the Court. The defence of the defendant was rejected ignoring of his representation. It was held that the order of striking off the defence was not proper.
8. In Laxmi Narain v. Rama Nand and others, 1994 (2) AWC 1169, it was held that delay in deposit which had occurred on account of lack of suitable advice from the counsel would not Justify the striking off the defence. The defence can be struck off on failure to deposit admitted rent. It was also held that it is not necessary that in each and every case of delay a representation should be made. The manner in which the judicial discretion has to be exercised under Order XV, Rule 5, C.P.C. has been elaborately discussed in Shiv Prasad v. Special Judge, Allahabad and others, (1996) 1 CRC 150. In that case, it was observed that if the tenant has substantially complied with the provisions of the aforesaid rule and when it struck to him that there was a little deficiency and delay he even deposited the amount of interest though there is no provision in the aforesaid rule for payment of interest on delayed deposits in respect of the rent falling due after the institution of the suit. In Bharat Bhushan Mtsra v. District Judge. Gonda and others, 1990 All LJ 292, it was held by this Court that the delayed deposit of rent for certain months after institution of suit does not render the defence liable to be struck off particularly when such request was made by the landlord after evidence had been closed and the suit was listed for argument. The matter came to be considered with reference to the "date of first hearing" as explained by Explanation (1) of Rule 5 in Shanker Lal v. District Judge, Banda and others, (1996) 1 CRC 394, in which the delay which has occasioned in depositing the rent due to wrong advice of the counsel was condoned.
9. In the instant case, the plea of the defendant-revisionist is that he has deposited the amount in excess of the amount which was payable to the plaintiff-respondents and, therefore, the defence could not be struck off. In a similar case in Hotu Ram Sachdeva v. Additional District Judge, No. 2. Lucknow and others, 1989 All LJ 631. It was observed that the amount deposited by the tenant in excess should be taken into account while deciding if any default has been committed in depositing monthly amount due and the defence should be struck off after considering all the material facts and circumstances of the case. Even if the default had been committed, the Court is not bound to strike off the defence and it has to decide it after considering the relevant material along with the representation made by the defendant in this connection. In Sunna Lal Gupta v. First Addl. District Judge. Jhansi and others, 1990 All LJ 241. It was ruled that It' is not necessary to file a representation always to explain the delay in depositing rent in Court but the material already on record and the facts and circumstances of the case should be taken into consideration in entirety to come to the conclusion whether delay in deposits was intentional on the part of the tenant. If the facts and circumstances of the case show even in the absence of representation that the delay was not intentional and that there was no guilty mind of the petitioner in making late deposits then there would be an error on the part of the Court in laying down undue emphasis on the omission of the representation or on the representation being filed belatedly.
10. The provisions of Order XV, Rule 5, C.P.C. also came to be considered by a Division Bench of this Court in Surendra Nath Dubey v. Smt. Shakuntala Devi, 1980 AWC 124, in which it was observed that according to Order XV. Rule 5, C.P.C., the defence of a tenant is liable to be struck off if he fails to deposit the rent or compensation for use and occupation, admitted by him to be due, at or before the first date of hearing and also if he falls to continue to deposit regularly the amount of monthly rent or compensation for use and occupation of the premises at the rate admitted by him unless he makes a representation, on considering which and on furnishing security for making the deposit the Court allows him further time to make the deposit. As the defendant did not admit that any rent or other amount for use and occupation of the premises was due. no question of his depositing any further amount or compensation for use and occupation of the premises on that account, at the first hearing or before that arose. Further as the defendant did not admit that any amount by way of rent or compensation for use and occupation of the premises was due from him at the time when the first hearing took place no question of his making a representation seeking further time to make such deposit, arose. What is the duty of the Court in the matters where a representation seeking further time to deposit arrears of rent before the order of striking off the defence was passed, has been discussed in a decision of a Division Bench of this Court in Brij Gopal and another a. Ratan Chand and others, 1980 AWC 124. It was also held in K. Gopal v. Smt. Sushila Agarwal, 1984 All LJ 1268, that consideration by Court of representation made by tenant is mandatory and if an order has been passed striking off the defence without considering the representation, it is illegal.
11. In the backdrop of the above law, I find that the learned Court below has not appraised the facts and circumstances of the case prior to strike of the defence of the defendant-revisionist. A specific representation/application dated 5.12.1997 supported with an affidavit was filed by the defendant-revisionist. This representation was not considered by the Court below. Not only this, the effect of the failure of the counsel or his clerk to deposit the rent for the period of one month. i.e., 15.1.1997 to 14.2.1997, even though it is alleged that the defendant-revisionist had paid the money to his counsel to deposit the rent regularly, has not been considered by the trial court. The impression which I have gathered from the impugned order is that the Court below has passed the order in a most mechanical, cursory and perfunctory manner. The Court below has failed to apply his mind to the various aspects of the matter. Needless to say, that the provisions under Order XV, Rule 5, C.P.C. are not intended to punish a tenant-defendant. If he has for some explainable reasons made default in depositing the amount of rent regularly. The matter in this perspective and in view of what has been observed above, requires to be gone into afresh. It would be proper if the Court below is directed to decide the application under Order XV, Rule 5. C.P.C. afresh taking into consideration the representation/application dated 5.12.1997 supported with an affidavit as well as other grounds taken by the defendant-revisionist to oppose the prayer for striking off the defence.
12. In the result, the revision application is allowed and the impugned order dated 19.12.1997 passed by IInd Addl. District Judge, Meerut rejecting the defence of the defendant-revision 1st under Order XV, Rule 5 of C.P.C. Is set aside. The Court below is directed to decide afresh the application under Order XV, Rule 5, C.P.C. as well as the representation dated 5.12,1997 made by the defendant-revisionist within one month from the date a certified copy of this order is produced before it.