Uttarakhand High Court
Civil Judge (Junior Division) vs 4 on 9 December, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 9TH DAY OF DECEMBER, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 148 OF 2015
BETWEEN:
Amarjeet Singh Kohli .... Petitioner
(By Mr. Neeraj Garg, Advocate)
AND:
M.K. Jain ... Respondent
(By Mr. Narayan Har Gupta, Advocate)
With
Writ Petition (M/S) No. 149 OF 2015
JUDGMENT
1. Since common questions of fact and law are involved in both these petitions, therefore, these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPMS No. 148 of 2015 alone are being considered.
2. This is landlord's petition against the order dated 24.03.2012 passed by First Additional Civil Judge, Senior Division, Dehradun in S.C.C. Suit No. 14 of 2009 and also the judgment dated 18.12.2014 passed by learned Ist Additional District Judge, Dehradun in landlord's revision, filed under Section 25 of Provincial Small Cause Courts Act.
23. By the order impugned, learned trial Court had permitted the tenant (respondent herein) to deposit the admitted rent in Court under Order 15 Rule 5(1) C.P.C. By the same order, learned trial Court also rejected landlord's (petitioner herein) application for striking off defence of the tenant.
4. Respondent is tenant in respect of a shop at Dehradun which belonged to one Sri Suraj Prakash Tuteja and was let out to respondent. Petitioner purchased the said shop by a registered sale deed dated 4.2.2009 and thereafter on 25.5.2009, he filed a suit for eviction, recovery of rent and mesne profits against respondent before Small Cause Court with the allegation that respondent has not paid rent since 2007, till termination of his tenancy w.e.f. 31.3.2009. Respondent filed written statement denying the plaint allegations in which he stated that after death of Suraj Prakash Tuteja, he was paying rent to his legal heirs. In his additional written statement, respondent denied the allegation that he is a habitual defaulter and stated that in view of refusal on the part of the landlord to accept rent from him, he moved an application, under Section 30(1) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act No. 13 of 1972"), seeking permission to deposit the admitted rent in Court.
5. Respondent thereafter moved an application in the eviction suit filed by petitioner, seeking permission to deposit the admitted rent in terms of Order 15 Rule 5(1) C.P.C., with the contention that he had tendered a sum of `8,050/- through cheque dated 17.04.2009 to petitioner, however, due to petitioner's refusal to accept the amount, he had to move the Court under Section 30(1) of Act No. 3 13 of 1972 and his application was allowed by learned Civil Judge (Junior Division), Dehradun vide order dated 24.09.2010. By the said application, he sought permission to deposit the admitted rent with interest @ 9 per cent per annum in terms of Order 15 Rule 5(1) C.P.C. in Court with the contention that he has now been advised by a Senior Advocate that he should have deposited rent in the pending suit. Learned trial Court allowed respondent's application and permitted him to deposit rent in Court and rejected petitioner's prayer for striking off defence of respondent. The said order passed by trial Court on 24.3.2012 is under challenge in this writ petition.
6. Learned trial Court has considered and discussed the matter in great detail while allowing tenant's application seeking permission to deposit the amount of admitted rent in Court. It has been held that, due to mistake, tenant could not make compliance of provision contained in Order 15 Rule 5(1) C.P.C., which is due to wrong legal advice.
7. Learned counsel for the petitioner submits that the order passed by the trial Court is unsustainable, as the tenant had not deposited the admitted rent with interest @ 9% per annum before the first hearing of the suit in the trial Court, therefore, learned trial Court could not have permitted the tenant to deposit the rent on a later date.
8. Hon'ble Supreme Court has considered and discussed the scope of power available to a Court under Order 15 Rule 5 C.P.C. in the case of Bimal Chand Jain Vs. Gopal Agarwal, reported in (1981) 3 SCC 486. Relevant extract of the said judgment is reproduced below:
4"6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 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 [ Civil Revision No. 356 of 1978, decided on October 30, 1980] . 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 15."
9. In the case of Kamla Devi Vs. Vasdev, reported in (1995) 1 SCC 356, Hon'ble Supreme Court, while considering the similar provision contained in Section 15 (7) of Delhi Rent Control Act, 1958, held that the said provision gives a discretion to the Rent Controller and does not contain a mandatory provision for striking off defence of the tenant against eviction. Paragraph nos. 17, 18 & 19 of the said judgment are extracted below:
5"17. We are unable to uphold this contention. In our view, it is not obligatory for the Rent Controller to strike out the defence of the tenant under Section 15(7) of the Delhi Act, if the tenant fails to make payment or deposit as directed by an order passed under Section 15(1). The language of sub-section (7) of Section 15 is that "the Controller may order the defence against eviction to be struck out". That clearly means, the Controller, in a given case, may not pass such an order. It must depend upon the facts of the case and the discretion of the Controller whether such a drastic order should or should not be passed.
18. The position in law, in the event of a tenant's failure to comply with an order under Section 15(1) of the Delhi Rent Control Act or similar provisions of other Rent Acts, has been examined in several other decisions of this Court. It is true that the case of Shyamcharan Sharma v. Dharamdas [(1980) 2 SCC 151] was decided under the provisions of Madhya Pradesh Accommodation Control Act, 1961 but the provisions of that Act relating to eviction of tenants were similar to the corresponding provisions of Delhi Rent Control Act. The relevant provisions of Madhya Pradesh Act are:
"12. Restriction on eviction of tenants.-- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner.
*** (3) No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-
section (1), if the tenant makes payment or deposit as required by Section 13:
***
13. When tenant can get benefit of protection against eviction.-- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.
*** (5) If a tenant makes deposit or payment as required by sub-section (1), or sub-section (2) no decree or order shall be made by the Court for the 6 recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.
(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."
19. In Shyamcharan Sharma case [(1980) 2 SCC 151] a Bench of three Judges of this Court held:
(SCC p. 154, para 4) "We think that Section 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by Section 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by Section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence."
10. In the case of Mangat Singh Trilochan Singh Vs. Satpal, reported in (2003) 8 SCC 357, Hon'ble Supreme Court relied upon the judgment rendered by Hon'ble Supreme Court in the case of Sham Lal Vs. Atme Nand Jain Sabha (Regd.), reported in (1987) 1 SCC 222, where "first hearing of the suit" was interpreted as not the date fixed for return of summons or the returnable date which is the day of appearance of the parties before the Court, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken. Paragraph nos. 8 to 13 of the said judgment are extracted below:
"8. The trial court by separate orders passed, refused to strike off the defence of the tenants for the reason amongst others, as stated by it, that a substantial question of jurisdiction of the civil court is involved in the cases. Admittedly, before filing of the present suit for eviction, the landlords had earlier filed applications before the competent authority under the provisions of the East Punjab Urban Rent Restriction Act which were later withdrawn.7
9. The trial court placed reliance on the decisions of this Court (supra) which have also been relied upon for the tenants before us on the interpretation of the provisions of Order 15 Rule 5 of the Code. This Court has held that it is not obligatory for the court in every case to strike off defence only because there is delay in deposit of the arrears of rent. The court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case.
10. After duly noticing the legal position as has been explained by this Court, the trial court has recorded in its order that the Rent Controller had fixed a fair rent for the suit premises and the arrears of rent at that rate were deposited by the tenants in State Bank of Patiala for payment to the landlords. It finds that the tenants had not withheld payment of rent arbitrarily. There was no lack of bona fides on their part. It is in these circumstances that the trial court refused to strike off the defence and on consideration of the representation of the tenants accepted the deposit of arrears of rent.
11. The contention advanced on behalf of the tenants that the arrears of rent were duly deposited within the specified period from the first effective "date of hearing" also gets support from the decision of this Court in the case of Sham Lal [(1987) 1 SCC 222] . In that case, the words "first hearing of the application", as used in Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, came up for interpretation. It was held that to promote the object of the legislation contained in the provisions, the expression used therein has to be construed reasonably. The use of the expression "first hearing"
is held not to mean "the date fixed for return of summons or the returnable date which is the day of appearance" of the parties before the court. See the following observations of this Court in above respect: (SCC p. 226, para 11) "11. It appears that there is consensus in regard to the interpretation of the expression 'first day' in the context of the rent legislations of several other States, for instance, the Gujarat High Court in Shah Ambalal Chhotalal v. Shah Babaldas Dayabhai [AIR 1964 Guj 9 : (1962) 3 Guj LR 625] dealing with the identical question as to the meaning of the words 'the first day of the hearing of the suit' as provided in sub-section (3)(b) of Section 12 of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 has observed after considering several decisions that, 'the words "the first day of hearing" as meaning not the day for the return of the summons or the returnable day, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken'."
(emphasis added)
12. In the instant cases before us, the trial court accepted the deposit of arrears of rent by the tenants and refused to strike off defence for more 8 than one valid reason. The most important reason assigned by the trial Judge is that there is a serious question of jurisdiction of the civil court involved in the cases. The court also came to the conclusion that as the arrears of rent were deposited in the Bank, there were no mala fides on the part of the tenants. The rent was not withheld for any ulterior purpose. The arrears of rent were, thereafter, deposited in court with an application or representation which was made in accordance with sub-rule (2) of Rule 5 of Order 15 of the Code.
13. The last submission made on behalf of the tenants has also great force that since the trial court had exercised its jurisdiction lawfully by refusing to strike off defence and accepting the deposit of arrears of rent, the High Court could not justifiably interfere with the same in exercise of its revisional jurisdiction under Section 115 of the Code."
11. In the present case also, there does not appear to be any malafide on the part of the tenant/ respondent who earlier made application for deposit of rent in Court under Section 30(1) of U.P. Act No. 13 of 1972 and when he was advised to deposit the rent in terms of Order 15 Rule 5(1) C.P.C., he approached the trial Court by making an application seeking permission to deposit the rent and also tendered the amount of admitted rent with interest. Thus, it can be noticed that rent was not withheld by the tenant for any ulterior motive, but it was a bonafide mistake on account of erroneous legal advice.
12. Even otherwise also, this Court while exercising supervisory powers under Article 227 of the Constitution would not interfere with concurrent findings recorded by learned Courts below unless the orders impugned have resulted in miscarriage of justice. Rules of procedure are handmaids of justice, which should be interpreted in a manner which furthers the cause of justice. In the case of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey, reported in AIR 1955 SC 425, Hon'ble Supreme Court has held that rule of procedure 9 are grounded on the principle of nature justice, which require that men should not be condemned unheard and decision should not be reached behind their back, that proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them. It was further held that there must be exceptions and where they are clearly defined they must be given effect to; but taken by and large, subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.
13. In view of the aforesaid discussion, this Court does not find any reason to interfere with the judgment & orders impugned in these writ petitions.
14. Accordingly, writ petitions fail and are hereby dismissed.
(MANOJ KUMAR TIWARI, J.) Aswal