Allahabad High Court
Mukesh Verma And Another vs Harishchandra And Another on 23 March, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 1662 of 2018 Petitioner :- Mukesh Verma And Another Respondent :- Harishchandra And Another Counsel for Petitioner :- Sushant Misra Counsel for Respondent :- Babban Prasad Dwivedi Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Sanjay Agarwal, holding brief of Sri Sushant Misra, learned counsel for the defendants-tenants/petitioners and Sri Babban Prasad Dwivedi, learned counsel for the plaintiffs-landlords/respondents.
2. This petition under Article 227 of the Constitution of India has been filed praying for the following relief:
"To set aside the order dated 1.2.2018 & 23.2.2018 passed by the learned Additional District Judge/Special Judge (Dacoity affected Area) in Provincial Small Causes Suit No.4/2016 (Harishchandra & another Vs. Mukesh Verma & another)"
Questions Involved:
3. Two questions involved in this petition as pressed by learned counsel for the defendant-tenant/petitioner, are as under:-
(a) Whether compliance of the provisions of Order XV Rule 5 C.P.C. by the defendant are mandatory for protection against striking of defence?
(b) Whether, under the facts and circumstances of the case the defence of the defendant-tenant/petitioners has been lawfully struck off by the impugned order?
Facts:
4. Briefly stated facts of the present case are that the plaintiffs have purchased the disputed property by a registered sale deed dated 30.11.1996. After demolishing it, they raised construction in January 1997. According to the plaintiffs-landlords a shop at the first floor was let out to the defendant-tenants on a monthly rent of Rs.10,000/-, but they defaulted in payment of rent from 1.1.2016 to 31.7.2016. Consequently, the plaintiffs-landlords issued a notice dated 1.8.2016 by registered post which was received by the defendant-tenant on 2.8.2016, whereby the plaintiffs-landlords determined the tenancy and demanded arrears of rent. According to the plaintiffs neither the shop was vacated nor the arrears of rent was paid and as such they filed SCC No.04 of 2016 (Harishchandra & another Vs. Mukesh Verma & another) in the court of Judge Small Cause Court, Farrukhabad, on 5.9.2016. The defendant-tenants filed a written statement dated 13.2.2017/2.3.2017 in which they took the stand that the plaintiff no.2, namely, Smt. Bittan Devi, daughter of Bishun Dayal, has sold her share in the disputed property to the defendant-tenant no.2 by registered sale deed dated 13.4.2016. The defendant-tenant admitted the rent of the disputed shop to be Rs. 1000/- per month. He deposited a sum of Rs.500/- per month under Order XV Rule 5 C.P.C. towards arrears of rent on the ground that half of the rent of the shop has been paid by him to his brother Rajive Verma i.e. the defendant no.2 as co-owner.
5. Since the admitted amount of rent was not deposited by the defendant-tenant/petitioner, therefore, the plaintiff-landlord/landlady filed an application under Order XV Rule 5 CP.C. to struck off the defence. In the said application they also took the stand that the alleged sale deed is a fraudulent piece of paper inasmuch as plaintiff no.2 is the wife of the plaintiff no.1 while the alleged registered sale deed has been executed by a stranger namely one Smt. Bittan Devi, daughter of Bishun Dayal. The Court below found that the rent admitted by the defendant-tenants is Rs.1000/- per month which has not been deposited. That apart, the monthly rent has been irregularly and belatedly deposited. Therefore, the defence of the defendant-tenant was struck off. The court below also noticed the allegations of the defendant-tenant no.1 that a suit for cancellation of the aforesaid alleged sale deed has been filed by the plaintiffs-landlords.
Submissions:
6. Learned counsel for the defendant-tenant/petitioners submits as under:
(i) The rent of the shop is Rs. 1000/- per month. Since half of the portion was sold by the plaintiff no.2 to the defendant-tenant no.2 and as such the defendant-tenant no.1 bifurcated the admitted monthly rent of Rs.1000/- in two equal parts and accordingly deposited the arrears @ Rs. 500/- per month with the court below and rest of the amount has been paid by him to the defendant-tenant no.2. Therefore, there was no default in depositing the arrears of rent. Consequently, the court below has committed manifest error of law to struck off the defence under Order XV Rule 5 C.P.C.
(ii) The provisions of Order XV Rule 5 C.P.C. are not mandatory but discretionary. Even in case of non deposit of arrears of admitted rent, the defence under Order XV Rule 5 C.P.C. can not be struck off. Therefore, the court below has committed a manifest error of law to struck off the defence.
7. In support of his submissions, learned counsel for the defendant-tenant/petitioners has relied upon judgment dated 6.1.2014 in Writ -A No.92 of 2014 (Smt. Raj Rani Garg Vs. Rajendra Prasad Singhal), Maqsood Ali Vs. Shamsher Khan, AIR 1979 (All)182, Smt. Leela Devi and Anr. Vs. Smt. Shanti Devi Jaiswal, AIR 1986 All 1990 and a judgment of Hon'ble Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal, AIR 1981 SC 1657.
8. No other point has been argued before me by the learned counsel for the defendant-tenants/petitioner.
9. Sri Babban Prasad Dwivedi, learned counsel for the plaintiffs-landlord/respondents supports the impugned order. He submits that immediately after the alleged fraudulent sale deed of the defendant-tenant No.2 came to the notice, the plaintiffs-landlord, immediately lodged an FIR being case crime No.0989 dated 2.10.2016 under Section 420, 467, 468, 469, 471 and 506 I.P.C. P.S. - Farrukhabad, District - Fatehgarh. They have also filed a suit No.105 of 2017 (Harishchandra others Vs. Bittan Devi and others) for cancellation of the aforesaid fraudulent sale deed dated 13.4.2016, which is pending in the Court of Civil Judge (J.D.) Farrukhabad. In SCC Suit No.04 of 2016 rent receipts being paper No.40-A were filed to establish that the rent is Rs.10000/- per month. These rent receipts also bears the signatures of the defendant-tenant No.1. He further submits that the plaintiffs-landlords have let out the disputed shop to the defendants-tenants/petitioners, is not in dispute. The rent is in arrears since 1.8.2016. The defendants-tenants/petitioners have not complied with the provisions of Order XV Rule 5 C.P.C. Therefore, their defence has been lawfully struck off by the impugned order.
Discussion & Findings:
10. I have carefully considered the submissions of learned counsel for parties and perused the record.
Question (a) :
11. In order to consider the submissions of the parties, it is necessary to refer to Order XV, Rule 5 of the Code as amended in Uttar Pradesh substituted by U.P. Act 57 of 1976 and Notification No.121/IV-h-36-D dated 10.2.1981 with effect from 3.10.1981, which is reproduced below:
"5. Striking off defence on failure to deposit admitted rent. etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of Sub-rule (2) strike off his defence.
Explanation 1.--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 mentioned the last of the dates mentioned.
Explanation 2.--The expression 'entire amount admitted by him to be due' means the entire gross amount, whether as rent or compensation for use and occupation calculated at the admitted rate of rent, for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account (and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him) and the amount, if any deposited in any court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Explanation 3.--
(1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account.
(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or of the expiry of the week referred to in Sub-section (1) as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the Plaintiff:
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited."
14. There is a marked difference in between the two provisions with regard to the applicability and scope of the said Rule. The defendant-petitioners were liable to deposit entire amount admitted by them to be due together with interest thereon @9% per annum and whether or not they admit any amount to be due they were to deposit throughout the continuance of the suit regularly the monthly amount due within a week from the date of its accrual. In the event of default in making deposit either of the amount or both, as the case may be, the defence is to be struck off subject to Sub-rule (2). Sub-rule (2) provides for making a representation within ten days of first hearing or of the expiry of the week referred to in Sub-section (1). If such a representation is made the court has to consider the same before striking off the defence.
15. A plain reading of Rule 5, as it stands today divide the range of comprehension into two parts, (i) admitted arrears to be due and, (ii) current dues. The liability is to deposit the arrears admitted. It also casts the liability to deposit current dues month by month irrespective of admission. In default of either, the defence may be struck off.
16. In order to avoid the applicability of Rule 5 the defendant-applicants have been given right under sub-rule (2) to make a representation within the period prescribed under sub-rule (2). The provision is a complete code in itself. It provides remedy to avoid attraction of Rule 5 by making a representation within the time prescribed. The time prescribed is crucial. At this stage the defendant is required to make up his mind for the stand he would take. If he disputes the amount or relationship then in order to avoid attraction of Rule 5, he has to make a representation within the time prescribed.
17. In the case of S.K. Masood Alias Zafar And Ors. v. Wahid Ahmad Ansari And Anr,1997 (30) ALR 682 (para 23,24,25 and 26 an Hon'ble Single Judge explained the provisions of Order XV Rule 5 C.P.C and held as under:
"23. Admittedly, Rule 5 is mandatory because of the nature of the expression used therein. The Court while striking out defence has to exercise its discretion judiciously. In case the provision is not complied with evil consequences would visit the defendants-applicants, The court has no alternative in case of non-compliance of Rule 5 by the defendants-applicants but to strike off the defence.
24. But there may be cases where defendants-applicants may not be tenant and may not be liable to pay rent or arrears. In such event, the question is to be decided by the Court before striking out defence for which sub-rule (2) has been provided under which such objection may be raised, but within the time provided. The limitation has been specifically provided in sub-rule (2) itself as within ten days and no provision has been incorporated empowering the court to extend the time. The period having been fixed by the legislature and it is not being a period to be fixed by the court, the same is not subject to extension under Section 148 of the Code. The period of ten days is, therefore, mandatory as well. Since specific provision has been provided, the defendants-applicants are to take resort to the same. In case the defendants-applicants failed to take shelter of sub-rule (2) in that event, the court cannot help the defendant-applicants even though such objection is raised either in the written statement or after the application for striking out of defence is made. Specific provision that has been provided cannot be circumvented by raising the dispute in the objection or in the written statement. Be that as it may, the defence raised in written statement cannot be entertained since the same is the defence, which is liable to be struck off by reason of Rule 5. Therefore, the same cannot come to the aid of the defendant-applicants even if raised in the written statement. Similarly, defence to the objection to the application striking out of the defence cannot be entertained since such question can be considered by the court provided the representation is made within time prescribed in Sub-rule (2).
25. But then even if the defence is struck off, the plaintiff respondent has to succeed on the basis of the case made out in the plaint and proved before the court, though such defence is not available to the defendants-applicants, but yet it is the duty of the court to see that the plaintiff has been able to prove his case for establishing that there is relationship of the landlord and the tenant between the parties. In the present case, the defendant-petitioner No. 1 is not claiming to be tenant and, therefore, he is not opposing eviction. The question is only with regard to his liability to pay arrears or current rent. The court has to determine the amount payable as arrears of rent prior to the date of first hearing and the rate of rent and current amount due and payable. The Plaintiff cannot be allowed to reap an undue harvest. The defence as contemplated is to be confined to the defence with regard to eviction, but ascertainment of mesne profit can very well be defended by the parties either on the question of quantum or the period or right or question of liability to pay by one or the other or inter se defendant-applicants.
(Emphasis supplied by me)
18. In the case of Basant Kumar Chauhan Vs.7th Additional District Judge, Bareilly, 1994 (23) ALR 414, this Court considered the provisions of Order XV Rule 5 CPC including Explanation III and held as under:
"10. A perusal of the provisions contained in Order XV Rule 5 of the Civil Procedure Code makes it clear that under the scheme of that order a deposit of rent on or before the date of first hearing might be made under Section 30 of the U.P. Act No. 13 of 1972. The explanation II to Order XV Rule 5(1) of the Civil Procedure Code amply clarifies that the expression 'entire amount admitted to be due' meant the entire gross amount whether as rent or compensation for use and occupation calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessee in writing signed by him and the amount if any, deposited in any court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
11. It is, therefore, obvious that the provisions contained in Order XV Rule 5, read with Explanation II clearly stipulate that any amount deposited in any court under Section 30 of the U.P. Act No. 13 of 1972 could be taken notice of by the court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. The expression 'monthly amount due' has been explained vide Explanation III to Order XV Rule 5 of the Civil Procedure Code and means the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rem after making no other deduction except the tax, if any, paid to a local authority in respect of the building on lessor's account. Considering the explanation III to Order XV Rule 5 of the Civil Procedure Code it is clear that for finding out the 'monthly amount due' the deposits made in any court under Section 30 of the U.P. Act No. 13 of 1972 are not to be taken into account. However in explanation II there is a clear mention of the deposits, if any, made in any court under Section 30 of the U.P. Act No. 13 of 1972 which may be taken into notice and adjusted while considering the entire amount admitted by the tenant to be due which is required to be deposited at or before the first hearing of the suit. The omission appears to be deliberate and is indicative of the fact that for the purposes of the deposits towards the 'monthly amount due' as contemplated in the second part of Order XV Rule 5(1)of the Civil Procedure Code, any deposit in any court under Section 30 of the U.P. Act No. 13 of 1972 is not to be taken into account. Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under explanation III to Order XV Rule 5 of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck off. Of course, the delay, if any, in making the deposits required to be made under the second part of Order XV Rule 1 of the Civil Procedure Code could be condoned, on the representation of the tenant provided he makes out a sufficient ground for the same.
17. From a perusal of the decision in the case of Gyanandra Lal (supra), it is apparent that no reason whatsoever has been given for the conclusion contained therein referred to hereinbefore. Moreover the crucial words occurring in Order XV rule 5(1) of the Civil Procedure Code and the implications rising under explanation II and explanation Ill to Order XV Rule 5(1) of the Civil Procedure Code as well as the implications rising under the use of the term 'sun' in the provision under consideration and further the nature of the proceedings envisaged under section 30 of the U.P. Act No. 13 of 1972 were not at all taken notice of while making the observations on which the learned counsel for the petitioner has placed strong reliance The clear cut statutory provision contained in Order XV Rule 5(1) of the Civil Procedure Code leads to an inescapable and irresistible conclusion that the defendant-tenant petitioner could not be deemed to have been relieved of his liability to deposit the monthly amount due in the court where the suit was proceeding even after having come to know of its pendency and comply with the requirement of the second part of Order XV Rule 5(1) of the Civil Procedure Code in order to save his defence from being struck off. The revisional court has noticed that inspite of full opportunity, the defendant petitioner did not take any steps to get the amount deposited in the court where the suit was pending and insisted that he was not required to make any deposit whatsoever. It has further been noticed that the defendant petitioner did not even ask for the permission to make the necessary deposits even after the application for striking off his defence had been filed. The courts below were bound to follow the statutory provisions and they did not commit any error in following the decision of this Court in the case of S. Abel (supra) which continues to have its binding force and is in conformity with the provisions contained in Order XV Rule 5 of the Civil Procedure Code and the legislative intent behind the same."
(emphasis supplied by me)
19. The aforesaid judgment in the case of Basant Kumar Chauhan (supra) rendered by learned Single Judge, was affirmed by a Division Bench of this Court in the case of Haider Abbas Vs. Additional District Judge, Court No.3, Allahabad and others, 2006 (62) ALR 552 (Allahabad) which held as under:
"35. From a perusal of the aforesaid decision it is also not clear whether the matter related to the first part or the second part of the Order XV, Rule 5 C.P.C. As seen above, there is a substantial difference between the deposits made in these two parts because under the first part the amount deposited under section 30 can be deducted whereas under the second part there is no provision for deduction of the said amount.
36. Basant Kumar Chauhan (supra) and Ram Kumar Singh, (supra), in our considered opinion, have correctly appreciated the provisions of Order XV, Rule 5 C.P.C. and we have not been able to persuade ourselves to uphold the view taken to the contrary in Habiburrahman (supra), Ratan Bhushan Shukla (supra) and Dr. Ram Prakash Mishra (supra). These decisions have not considered the specific requirement contained in the second part of the Order XV, Rule 5(1) C.P.C. relating to deposit of the monthly amount due throughout continuation of the suit. They, therefore, with utmost respect to the learned Judges deciding the cases, do not lay down the correct law.
37. We, therefore, upon an analysis of the provisions of Rule 5(1) of Order XV, C.P.C., hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under section 30 of the Act but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under section 30 of the Act cannot be deducted."
(Emphasis supplied by me)
20. In Smt. Leela Devi and another Vs. Shanti Devi Jaiswal AIR 1986 (All) 90 this court held as under:
"The fact that the provisions of Order XV, Rule 5, C.P.C. are discretionary presupposes that even if there is a default the Court has to consider as to whether in a particular case it was in the interest of justice to strike off the defence. For deciding whether in a particular case defence should or should not be struck off one has to consider the circumstances of that particular case which has not been done in this case. One of the main circumstances which requires consideration is the nature of the default. If the amount of default is small or negligible considering the amount already deposited lenient view may be taken. The Court below has not even mentioned the total amount due, the amount deposited and the amount remaining unpaid and, therefore, it cannot be ascertained as to what was the actual extent of the default. Similarly, another important circumstance is the nature of explanation offered for not complying with the provisions regarding deposit of the amount. Here again, the Court below has not considered the case in correct perspective. The case of the applicants was that they failed to deposit the rent on the first date of hearing due to wrong legal advice. The Court below instead of deciding the correctness or otherwise of this allegation on the basis of evidence on record has rejected it with the observations that it will be unbelievable that an Advocate would have given the advice to the tenant that only the deposit of arrears of rent was enough. If the allegation of the applicants that they failed to deposit necessary amount in the Court within time due to wrong legal advice is found correct the defence of the applicants may not be struck off on this ground alone in view of the decision of this Court in City Board, Mathura v. Ashok Kumar, 1979 All LJ 333 that plea for condonation of delay in making deposit of rent on ground of counsel's wrong advice was sufficient for condoning the delay. This Court held-
"It has come in the judgment itself that the counsel appearing for the defendant-applicant had stated that the deposit had not been made because of the wrong advice given by him. If that was so, the Court below should not have insisted upon the affidavit and it should have accepted the statement of the counsel. It is settled that no client should suffer on account of the mistake of a lawyer. Hence the Court below should have accepted the representation and also the deposit which had been made on that date."
21. In Maqsood Ali Vs. Samsher Khan AIR 1979 (All)182 this court held as under:
"During the pendency of the suit an application was filed by the plaintiff-opposite party for striking off the defence on the ground that as the defendant-applicant had not deposited the rent under Order 15, Rule 5 C. P. C., the written statement was liable to be struck off. The application was contested by the defendant-applicant. On 28th April, 1975 the Court accepted the case of the plaintiff-opposite party and struck out the defence. Thereafter, the court decreed the suit on 29th April, 1975. Against the said decree, the defendant-applicant went up in revision to the District Judge. The revision was also dismissed. Hence this second revision."
22. In the case of Atma Ram Vs. Shakuntala Rani, 2005 (61) ALR 450, Hon'ble Supreme Court emphasized that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default.
23. In the case of Kanhai Vs. Prafulla Kumar, 2014 (2) ALL LJ 524, this Court explained the provisions of Order XV Rule 5 CPC and held as under:
"9. A perusal of provision of Order XV Rule 5 CPC goes to show that it is divided in two parts. The first part deals with the deposit of entire amount admitted by the defendant to be due together with interest on or before the first hearing of the suit. Whereas the second part deals with the deposit of the monthly amount due which deposit is to be made throughout the continuation of the suit. Explanation-II to Order XV Rule 5(1) CPC provides that entire amount admitted by the defendant to be due means the gross amount, whether as rent or compensation for use and occupation after deducting taxes if any paid in respect of the building to the landlord/lessor's account and the amount if any deposited under Section 30 of the Act. Whereas the expression monthly amount due has been defined in Explanation-III to mean the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rent. This only permits to make deduction of the amount deposited towards the taxes to the local authority in respect of the building."
(Emphasis supplied by me)
24. In Smt. Kalawati Vs. Deen Dayal Sharma (MATTERS UNDER ARTICLE 227 No. - 4290 of 2017, decided on 30.8.2017) this Court considered the provisions of Order XV Rule 5 C.P.C. and Section 20(4) of U.P. Act XIII of 1972 and after referring to several judgments of this Court and Hon'ble Supreme Court held as under:
"28. If the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default."
25. In Vijendra Kumar Jain Vs. Shanti Devi 1989, AWC 619 (para 8) as under:
"From a close scrutiny of Sub-rules (1) and (2) it is clear that in a suit covered by Sub-rule (1), the lessor or tenant has no alternative but to deposit the admitted arrears of rent, if he wants that his defence be considered. The tenant has only a right to make a representation under Sub-rule (2) against his defence being struck off. The law enjoins that when a representation is made, the Court shall consider it on merits. Further it may be possible in a particular case that the landlord's claim about applicability of Order XV Rule 5 may fail on the tenant's showing that from the materials on record, the suit does not partake the character of a suit envisaged by Sub-rule (1) and hence no case for striking out defence was made out. Therefore, the applicability of Order XV Rule 5 depends on the sole question whether the suit is by a lessor for eviction of a lessee for non-payment of rent or not. No other consideration arises at that stage in such a suit when the plaintiff invokes the said Rule, which stage is reached at a much earlier point of time than the beginning of actual hearing. In other words, at such an stage the Defendant can not refuse the payment of rent or damages as the case may be on the strength of his pleading in the written statement. The tenant will be entitled to rely upon his defence only when he crosses the legal hurdle created by Order XV Rule 5 and therefore, the Court has to ensure that the tenant complies with the said requirements before permitting the Defendant to rely upon his defence."
26. In Bimal Chand Jain Vs. Gopal Agarwal, 1981 (3) SSC 486 (Para 6) Hon'ble Supreme Court considered the construction of Order XV Rule 5 CPC and held as under:
"It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. 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. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub- rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV."
(Emphasis supplied by me)
27. In the case of Satya Kumari Kamthan v. Noor Ahmad, 2013 (9) SCC 177, Hon'ble Supreme Court held that the courts below noticed that though there was a default but there was no "representation" by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons. Therefore, the plaintiff of the said case was held to be entitled to get the defence struck off. The word "representation" may cover a "representation" in answer to an application for striking off or a "representation" praying for an extension of time for making the deposit on sufficient grounds shown.
28. In Mangal Singh Trilochan Singh Vs. Satpal 2003 (8) SCC 357, Hon'ble Supreme Court considered the power of trial court for striking off defence under Order XV Rule 5 C.P.C. when the trial court refused to strike off the defence of the tenant on the ground that a substantial question of jurisdiction was involved. Hon'ble Supreme Court held that refusal to striking off defence and acceptance of deposit of arrears was justified.
29. In the case of Bal Gopal Maheshwari Vs. Sanjeev Kumar Gupta 2013 (8) SCC 719, (paras 14 & 15), Hon'ble Supreme Court considered the provision of Order XV Rule 5 CPC and scope of interference under Article 227 of the Constitution of India and held as under:
"14. In the present case, the trial court fully applied its mind while exercising its discretionary power to strike off the defence. The grounds were noticed, as mentioned at Paragraph 11 of the judgment passed by the District Judge and is quoted above. The learned District Judge exercising its revisional jurisdiction, affirmed the order passed by the trial court. The aforesaid judgment(s) cannot be said to be perverse nor can it be said that the courts below have exceeded or failed to exercise their jurisdiction. The power to strike off the written statement vested under Rule 5 of Order 15 was exercised by the lower courts after going through the facts of the case.
15. In spite of the aforesaid fact, we find that the High Court failed to give any ground while exercising its inherent power under Article 227 of the Constitution of India. The learned Single Judge by the impugned judgment observed that the Supreme Court has held that the court has jurisdiction and discretion to accept the written statement even after expiry of 90 days from the date of service of summons on payment of heavy cost. The defendant has neither cited any decision nor shown any ground for acceptance of written statement even after expiry of 90 days from the date of service of summons on payment of heavy costs. The order passed by the trial court by exercising its discretionary power and the order passed by the Revisional Court affirming the trial court order were not perverse and both the courts below have not exceeded their jurisdiction. Hence, it was not open to the High Court to sit in appeal under Article 227 of the Constitution of India to alter such finding of facts and to accept the written statement without any ground."
(Emphasis supplied by me)
30. In the case of Anandi Devi Vs. Om Prakash 1987 (suppl) SCC 527, Hon'ble Supreme Court held that the learned Additional District Judge has failed to appreciate that "the respondent having failed to comply with the requirement of Order XV Rule 5 CPC by not making a deposit of arrears of rent together with interest and costs, the appellant's application for striking off the defence ought to have been allowed and, thereafter, the suit for eviction should have been decreed".
31. The provisions of Order XV Rule 5 C.P.C. and the law laid down by this Court and Hon'ble Supreme Court in the judgments aforenoted conspicuously leads to the conclusions as under:
(a) In a suit by a lessor for the eviction of a lessee after determination of the lease and for recovery of arrears of rent etc. the defendant is required to make two types of deposits. Firstly, at or before the first hearing of the suit he has to deposit the entire amount admitted by him to be due together with interest thereon @ 9% per annum and secondly, whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual. In the event of any default in making the first deposit or the second deposit as aforesaid, the Court may, subject to the provisions of sub-Rule (2) strike off his defence.
(b) The defendant has a statutory right under sub-Rule (2) to make a representation within ten days of the first hearing with respect to the first deposit as aforesaid. With respect to the monthly deposit as aforesaid, he has a right to make a representation within a week from the date of accrual of the monthly deposit.
(c) After considering the representation of the defendant under sub-Rule (2) as aforesaid, the Court may, strike off the defence of the defendant.
(d) Thus, the provisions for the first and the second deposit under sub-Rule (1) are mandatory but striking off the defence is the discretion of the Court which has to be exercised judicially. The delay, if any, in making the second deposit i.e. the monthly deposit, may be condoned on the representation of the defendant-tenant provided he makes out sufficient ground for condonation of delay.
(e) While depositing the amount at or before the first hearing of the suit, the defendant-tenant can deduct the amount deposited under Section 30 of the U.P. Act 13 of 1972 but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction.
(f) If the amount defaulted in making the deposit under sub-Rule (1) is small or negligible then a lenient view may be taken by the Court while considering the application of the lessor for striking off the defence of the lessee/tenant.
(g) If the tenant wishes to take advantage of the beneficial provision of Order XV Rule 5 C.P.C. then he must strictly comply with it before he may claim the benefit/protection against striking off the defence.
(h) The right expressly vested in the defendant under sub Rule (2) enables him to show by bringing material on record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. The power conferred under sub-Rule (2 ) is not to be exercised by the Court mechanically but judicially. The Court in its discretion vested in it, may not strike off the defence if on the facts and circumstances already existing on the record it find good reason for not doing so.
(i) The word "representation" as used under sub-Rule (2) may cover a "representation" in answer to an application for striking off defence or a "representation" praying for an extension of time for making the deposit on sufficient grounds shown.
(j) In the event the deposit under sub-Rule (1) is not made by the defendant-tenant then evil consequences of striking off defence shall follow.
32. Thus, question No (a) as framed above is answered as per conclusions noted in the preceding paragraphs.
Question No. (b)
33. In the present set of facts, it is wholly undisputed that plaintiffs-respondents became owner and landlord of the disputed property by way of a registered sale deed dated 30.11.1996. It is also undisputed that they inducted the defendants as tenants of the disputed shop who were also paying monthly rent but they defaulted in payment of rent from 1.1.2016 to 31.7.2016. The plaintiffs-landlords issued a notice dated 1.8.2016 to the defendants-petitioners by registered post which was received by them on 2.8.2016, whereby the plaintiffs-landlords determined the tenancy and demanded arrears of rent, but the defendant-petitioners neither vacated the shop nor paid the arrears of rent. The defendants-petitioners filed the written statement dated 13.2.2017/2.3.2017 in which they took the stand that the plaintiff no.2 has sold her share in the disputed property to the defendant no.2 by registered sale deed dated 13.4.2016 and, therefore, they admitted merely half of the rent to be payable to the plaintiffs-landlords and the remaining half of the rent to be payable to the defendant-tenant no.2. Thus, at their own, the defendants-tenants bifurcated the rent being half of the amount payable to the plaintiffs-landlords and the remaining half of the amount payable to the defendant-tenant no.2. The alleged sale deed regarding purchase of half share of the disputed shop by the defendant no.2 was alleged by the plaintiffs to be a forged piece of paper on the ground that the vendor named in the said sale deed is not the plaintiff no.2. The plaintiffs-landlords lodged an FIR being case crime No.0989 dated 2.10.2016 under Section 420, 467, 468, 469, 471 and 506 I.P.C. P.S. - Farrukhabad, District - Fatehgarh. They also filed a suit No.105 of 2017 (Harishchandra others Vs. Bittan Devi and others) for cancellation of the aforesaid fraudulent sale deed dated 13.4.2016, which is pending. It is admitted fact of the case that even on the basis of the alleged forged sale deed dated 13.4.2016, the defendant no.2 has not filed any suit for partition. Thus, the tenancy of the defendants-petitioners was continuing. Under the circumstances, failure of the defendants-tenants to deposit the amount under sub-Rule (1) of Rule 5 of Order XV C.P.C. was their deliberate act without any sufficiently justifiable reason. Plaintiffs are husband and wife who had jointly purchased the disputed shop and inducted the defendants as tenant. There appears to be merely similarity of name of the plaintiff no.2 and the alleged vendor named in the sale deed dated 13.4.2016. Despite being asked, learned counsel for the petitioner could not point out any material on record to indicate even prima facie that the plaintiff no.2 is the same person who has executed the alleged sale deed dated 13.4.2016. Under the circumstances, the default committed by the defendants-tenants/petitioners to comply with the provisions of Order XV Rule 5 C.P.C. is deliberate which resulted in striking off their defence. The findings recorded in the impugned orders in this regard do not suffer from any manifest error of law and as such it can not be interfered in jurisdiction under Article 227 of the Constitution of India in view of the law laid down by Hon'ble Supreme Court in Bal Gopal Maheshwari (supra) and Anandi Devi (supra).
34. Question No.(b) is, thus, answered accordingly, and it is held that the courts below have not committed any error of law to strike off the defence of the defendants-tenants/petitioners.
35. In view of the above discussion, I do not find any merit in this petition. Consequently, the petition is dismissed with cost of Rs.10,000/-.
36. It is made clear that this Court has not expressed any opinion on merit with regard to the validity of the sale deed dated 13.04.2016.
Order Date :- 23.3.2018/vkg