Punjab-Haryana High Court
Mrs. Ablinder Chawla vs Shri R.K. Gupta on 23 March, 1994
Equivalent citations: (1994)107PLR219, 1995 A I H C 293, 1994 HRR 291, (1994) 2 RRR 539, (1994) 2 RENCR 145, (1994) 1 RENTLR 478, 1994 REVLR 1 525, (1994) 1 CURLJ(CCR) 815, (1994) 2 PUN LR 219, (1995) 1 RENCJ 210
ORDER N.C. Jain, J.
1. This revision petition has been directed against the order of Senior Sub Judge, Chandigarh, dated 15.12.1992 dismissing the application of the petitioner which was filed under Order 15 Rule 5(1) of the Code of Civil Procedure for striking off the defence of the defendant-respondent At the very outset it is necessary to reproduce the very provision of Order 15 Rule 5(1) of the Code of Civil Procedure which has been incorporated by the High Court of Punjab and Haryana vide notification dated 13th May, 1991 and under which the application was filed by the landlord;
"5. Striking off defence for failure to deposit admitted rent:-
(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 percent 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 rent amount due within a week from the date of its accrual, and in the event of the 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 lesser's account and the amount, if any, deposited in any Court.
Explanation-3: 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.
Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."
2. In brief, the facts of the case are that the petitioner filed a suit for possession by way of ejectment of defendant-respondent from house No. 212, Sector 45-A, Chandigarh and for recovery of Rs. 29,700/- alongwith interest. The suit was contested by the defendant-respondent denying the relationship of landlord and tenant. The version of the defendant-respondent in the written statement is that the father-in-law of the plaintiff was looking after the house in question and the same was rented out by him to Rakesh Kumar Gupta, the brother of the defendant-respondent, who surrendered the possession in favour of father-in-law of the plaintiff on 11.9.1990 (date is corrected after seeing the plaint). It has further been averred that at that time the father-in-law of the plaintiff received a sum of Rs. 60,000/- from the defendant-respondent and allowed him to use the house for the purpose of residence till the repayment of that amount.
3. Learned counsel for the petitioner has argued that the application of the petitioner could not be dismissed simply because the relationship of landlord and tenant has been denied. It has further been argued that the possession of the house is admittedly with the defendant and that the defendant-respondent has admittedly not paid anything even according to his best case after 11.9.1990. He has taken this Court through the pleadings of the parties which make it clear that the rate of rent has not been disputed. On the aforementioned premise, it has been argued that simply because evasive reply has been given by the defendant-respondent, he cannot avoid the payment of rent or claim made by the petitioner for use and occupation of the house in question. In the alternative learned counsel for the petitioner has argued that even if this Court does not feel inclined to order the payment as demanded in the plaint, this Court can always order the payment of current rent and in default thereof strike off the defence.
4. I have given deep thought to the argument and am of the firm view that the same has got a lot of merit. From perusal of the written statement two facts stand established. In the first instance, the rate of rent is not disputed and secondly the possession of the house with the defendant is an established fact. The defendant-respondent has not stated that the father-in-law of the plaintiff or somebody else is the owner of the demised premises. It is not stated in the written statement that as to in which capacity the father-in-law of the petitioner has given the house in question to the defendant-respondent. In view thereof, the present seems to be a case of evasive replies by the defendant-respondent and this Court cannot decline the application of the petitioner which is filed under the provisions of Order 15 Rule 5(1) of the Code of Civil Procedure, simply because the relationship of the landlord and tenant has been denied, the precise question which arises in the present case is whether a Court of law should stay its hand and would stand restrained to grant any relief to the landlord in the direction of payment of rent, the moment the tenant or the person in occupation of the premises denied the relationship of landlord and tenant.
5. The answer to the question in my considered view, is certainly in the negative. Order 15 Rule 5(1) of the Code of Civil Procedure on its true interpretation can be split into two parts. The first part casts an obligation upon the lessee to make the payment of the entire amount admitted by him to be due together with interest thereon at the rate of 9 per cent per annum on the first date of hearing failing which the Court has the power to strike off the defence of the defendant. The second part envisages a situation where the defendant does not admit any amount to be due but nonetheless an obligation is cast upon him to pay throughout the continuation of the suit such monthly amount which is due within a week from the date of its accrual failing which the Court has got power to strike off the defence. This view is manifest on the plain reading of second part of the provision which starts with the words '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 the 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. The object behind the addition of the aforementioned provision seems to be that no landlord should be deprived of his right to receive the rent and no tenant should be allowed to live in the premises free of charge simply because all sorts of pleas can be taken in the pleadings.
6. Adverting to the facts of the instant case, the rate of rent has not been disputed and, therefore, this Court can safely order the payment of current rent which be considered as compensation for use and occupation of the premises. I have intentionally used the word 'compensation' so that the case of the defendant may not be prejudiced at the trial.
7. In view of the afore-mentioned discussion, I hereby order the defendant-respondent to make the payment of monthly rent on or before 7th of every month and deposit the same in the trial Court failing which the defence of the defendant-respondent would be struck off. For the month of March, 1994, current rent of Rs. 1500/- would be deposited with the trial Court on or before 7th of April, 1994 and in future also rent would be deposited on or before 7th of every month. The Court has not made any order for payment of the amount from the year 1990 in view of the specific plea of the defendant that a sum of Rs. 60,000/- was paid and this plea is to be gone into on the basis of the evidence to be led in the suit. Learned counsel for the petitioner has agreed that he would not withdraw the aforesaid amount during the pendency of the suit.
8. Before parting with the judgment, the impression which has been left upon this Court by the defendant-respondent must be expressed. It appears that the defendant-respondent applied all sorts of delaying tactics in the disposal of the suit. The trial Court is directed to dispose of the suit within a period of two months from the date of first appearance even if the case is to be fixed for hearing on day-to-day basis. However, the impression created upon this Court would not mean any expression on the merits of the case. With these observations, the present revision petition is disposed of.
9. The parties through their counsel are directed to appear before the trial Court on 6.4.1994.
10. A copy of this order be sent to the trial Court through special messenger so that the same is available to the Court on the aforesaid date.