Allahabad High Court
Gangu vs Smt. Alka Arora And Another on 29 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD At Residence Reserved A.F.R. Case :- MATTERS UNDER ARTICLE 227 No. - 2725 of 2022 Petitioner :- Gangu Respondent :- Smt. Alka Arora And Another Counsel for Petitioner :- Sunil Kumar Srivastava Counsel for Respondent :- Prakhar Tandon Hon'ble J.J. Munir,J.
1. Heard Mr. S.K. Srivastava, learned Counsel for the petitioner and Mr. Prakhar Tandon, Advocate appearing on behalf of plaintiff-respondents.
2. The petitioner is a tenant and the defendant in S.C.C. Suit No. 350 of 2018, pending before the Judge, Small Cause Court, Kanpur Nagar.
3. On an application made by the respondent-landlord under Order XV Rule 5 of the Code of Civil Procedure (for short, 'the CPC'), the learned Judge, Small Cause Court has ordered the petitioner's defence to be struck off on the ground of failure to regularly deposit rent, month by month, with the Trial Court. The order was challenged in a revision preferred to the District Judge of Kanpur Nagar, being Civil Revision No. 91 of 2021. The said revision was heard and dismissed by the Additional District Judge, Court No. 16, Kanpur Nagar.
4. Accordingly, the petitioner has instituted this petition under Article 227, asking this Court to set aside the two orders dated 08.02.2021 and 09.09.2021 passed by the Courts below and restore his defence.
5. The facts of this case, relevant for the purpose of this petition, show that there is no issue about compliance with the first part of Rule 5 of Order XV CPC, which requires deposit to be made on the first date of hearing. What had led to the petitioner's defence being struck off, is non-compliance with the part that requires monthly rent to be deposited regularly with the Court, where the suit is pending, within 7 days of the date of its accrual. Here, the petitioner claims to be depositing rent under Section 30(1) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (for short, 'the Act') in the Court of the Civil Judge (Jr. Div.), Kanpur Nagar vide Misc. Case No. 425/70/2018. Summons of the suit were received by the petitioner's wife, Kiran on 13.12.2019. On 08.03.2019, Mr. Sushil Kumar Srivastava, Advocate, instructed by the petitioner, Gangu, put in appearance on his behalf in the suit and obtained necessary copies of the plaint etc. On the 8th April, 2019, a written statement was filed on behalf of the petitioner. Thus, the petitioner put in appearance on 8th April, 2019 and filed his written statement on 8th April, 2019. Surprisingly, however, the petitioner continued to deposit monthly rent in the Court of the Civil Judge (Jr. Div.) under Section 30 (1) of the Act for the months of April, 2019 to November, 2020, and that too, in lump sum for two months at a time. The first deposit of monthly rent in the Court, where the suit is pending, was made on 1st February, 2021. It was for the months of December, 2020 and January, 2021.
6. It is submitted by Mr. S.K. Srivastava, learned Counsel for the petitioner that the petitioner contested the suit through his Counsel and was not aware of the requirements of the law regarding deposit under Order XV Rule 5 CPC. He acted as per advice of the learned Counsel and deposited rent under Section 30 of the Act, which he did regularly. It is submitted that on account of lack of awareness of the law, he cannot be deprived of his valuable right, as valuable as his defence in an eviction suit. Reliance has been placed by the learned Counsel upon the decision of this Court in Kedar Nath v. Waqf Sheikh Abdullah Charitable Madursa and others, 2015 SCC OnLine All 7172.
10. In Pramod Mehrotra and others Versus Ram Shankar Chaurasia and others, 2007(3) ARC 77, where the amount was deposited with some delay, this Court relying upon Bimal Chand Jain (supra), held that discretion should be exercised not to strike off the defence where the entire amount has been paid with some delay.
11. Again in Sudhir Kumar Gupta Versus Dr. S.K. Raj and another, 1998 (1) ARC 545, the Court observed that the purpose of enacting the provision Rule 5 Order XV was not to give a 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.
12. In Pyare Lal Versus Distrit Judge, Lucknow and others, 2010(2) ARC 260 wherein, the Court allowed the deposit of rent upon imposing cost.
13. In Dr. Ram Prakash Mishra Versus Additional District Judge, Etah and another, 1999 (1) AWC 715, it was observed that the question whether the deposit is valid or not is relevant for determining the question whether the tenant could be held to be defaulter or not in the eye of law, but so far as Order XV, Rule 5 C.P.C. is concerned, the only requirement is that the tenant has to deposit the entire amount on or before the first hearing of the suit. If the deposit has been made under section 30 of Act 13 of 1972 then it will ensure to the benefit of the tenant.
14. The provisions of Order XV Rule 5 is discretionary, the court is not bound to strike off the defence in every case of mere technical or bonafide default. The provision should not be interpreted in such a way that the tenant should be trapped to be evicted. (Refer-Vinod Chandra Kala Versus Premier Precisions Tools Manufacturing (P). Ltd., 1996(1) ARC 62; Bhawani Vastrya Bhandan Versus Smt. Sahodra Devi,1996(2) ARC 406).
7. A Division Bench of this Court in Haider Abbas v. Additional District Judge and others, 2006 (1) ADJ 197 (All) (DB), held:
23. The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes 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 required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the 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.
24. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV, Rule 5, CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the ''monthly amount'' required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV, CPC.
25. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration.
8. Again, in a later decision of this Court in Om Prakash Gupta v. District Judge, Mainpuri and another, 2019 (3) AWC 2543, it has been held:
13. The Division Bench placed reliance on the judgment of Supreme Court in Atma Ram (supra) in holding that if the tenant desires to take advantage of a beneficial provision under the Rent Control Act, he must strictly comply with the requirements thereof. If any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition, failing which he cannot take advantage of the benefit conferred by the said provision. Accordingly, it was held that a deposit made not in consonance with the statutory provision would not enure to the benefit of the tenant. The monthly amount required to be deposited by the tenant during pendency of the suit has to be deposited in the court where the suit is filed and not in any other Court or proceedings. It has been concluded by holding that deposit of monthly rent under Section 30 of the Act, after receipt of summons of the suit is contrary to the requirements of Order 15 Rule 5 CPC and would therefore not enure to the benefit of the tenant :-
"The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes 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 required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the 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. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration.
.................We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, 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)
9. Similar view has been expressed in Sunil Kumar and others v. Kapoor Chandra Agarwal Dharamshala Trust, 2019 (10) ADJ 682.
10. There is absolutely no justification here for the petitioner to have deposited rent for months together before the Court exercising jurisdiction under Section 30 of the Act, after he had put in appearance in the suit and filed his written statement. The monthly rent had to be deposited in the Court, where the suit was pending in accordance with the provisions of Order XV Rule 5 CPC, within a week of accrual of rent every month. This having not been done, the petitioner's defence has been rightly struck off.
11. This Court is of opinion that no case for interference under Article 227 of the Constitution is made out.
12. This petition is, accordingly, dismissed.
13. The interim stay order dated 25.04.2022 is hereby vacated.
Order Date :- 29.9.2022 Anoop