Uttarakhand High Court
Smt Rekha Devi vs Buniyad Husain And Another on 12 August, 2015
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Recall Application (MCC) No. 514 of 2015
in
Civil Revision No. 53 of 2015
Smt. Rekha Devi ................ Revisionist
versus
Buniyad Hussain and another ............ Respondents
Mr. Rajat Mittal, Advocate, present for revisionist.
Mr. Piyush Garg, Advocate, present for the respondents/review applicant.
U.C. Dhyani, J. (Oral)
The recall application being MCC No. 514 of 2015 has been filed on behalf of the respondents to recall the order dated 23rd July, 2015. The same is supported by an affidavit of Buniyad Hussain (respondent no.1). Since the orders sought to be reviewed, was passed in the absence of the respondents, who could not appear despite service of notices upon them and the revisionist has no objection on the same, therefore, the order dated 23.07.2015 passed by this Court is recalled in the interest of justice. MCC No. 514 of 2015 thus stands disposed of.
2. By means of present civil revision, plaintiff / revisionist seeks to set aside the order dated 21.05.2015, passed by learned Judge, Small Causes Court / Addl. District Judge, Vikasnagar, Dehradun in SCC suit no. 33 of 2012, titled as Smt. Rekha Devi vs Buniyad Husain, whereby 2 application 36-C filed by the plaintiff / revisionist under Order XV Rule 5 of CPC has been kept on hold to decide the same after the evidence were led by the parties.
3. Plaintiff moved an application under Order XV Rule 5 of CPC before learned Judge, Small Causes Court for striking off the defence of defendant no. 1 on the grounds, inter alia, that the defendant has not been able to deposit the entire rent amount due on the first date of hearing and, therefore, his defence was liable to be struck off. Defendant no. 1 filed his objections against the same pleading that the application of the plaintiff was not maintainable, inasmuch as there is a dispute of landlord-tenant relationship between them. Defendant no. 1 also pleaded that the SCC suit was barred by Section 23 of Small Causes Court Act. The plaintiff has instituted the suit for realization of rent and ejectment against defendant no. 1. Defendant no. 1, in his written statement, denied that plaintiff was her landlord. He said so, on the basis of agreement to sell, which was neither a registered document nor duly stamped. Plaintiff claimed herself to be the owner-in- possession on the basis of such unregistered agreement to sell.
4. Learned Judge, Small Causes Court has observed in the impugned order that the plaintiff has not been able to establish, even prima facie, that she is the landlord and defendant is the tenant in the premises in question, inasmuch as, no document has been filed in support thereof. The court below was, therefore, of the view that the same will be decided at the time of final hearing.
35. It will be worthwhile to go through the provisions of Order XV Rule 5 of CPC, which are reproduced here-in- below for reference:
"Order XV Rule 5. Striking off defence for 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 cent 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 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 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.
4Provided 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."
6. Learned counsel for the defendants/respondents submitted that in case the landlord-tenant's relationship is denied & there is not even prima facie evidence on record to prove the relationship, the application filed under Order 15 Rule 5 C.P.C. should be dismissed.
7. Hon'ble Allahabad High Court in the decision of Saroj Tripathi and another vs Guru Prasad and others, [2012] 1 ARC 691, has observed as under:-
"It is, therefore, clear that Order XV Rule 5 CPC is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made whether or not he admits any amount to be due........ ........The Supreme Court after considering a number of its earlier decisions in Kuldeep Singh Vs. Ganpat Lal (1996) 1 SCC 243, Jagat Prasad Vs. Distt. Judge, Kanpur 1995 Supp (1) SCC 318, M. Bhaskar Vs. J. Venkatarama Naidu (1996) 6 SCC 228, Ram Bagas Taparia Vs. Ram Chandra Pal (1989) 1 SCC 257, and E. Palanisamy Vs. Palanisamy (2003) 1 SCC 123 observed:-
"It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any 5 condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision."
The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment / tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default........ ......A Division Bench of Hon'ble Allahabad High Court in Haider Abbas Vs. Additional District Judge (Court No. 3) Allahabad and others [2006 (62) ALR 552] while considering the provisions of Order XV Rule 5 CPC and the aforesaid decision of the Supreme Court in Atma Ram observed as follows:
"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 emphasized 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.
6It 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."
The tenant has to comply with the requirements of Order XV Rules 5 CPC and make the deposits strictly in accordance with the procedure contained therein. The tenant seeks to take benefit of the deposit made by him under Section 30(1) of the Act. It is not open to the petitioner to take this plea in view of the mandatory requirements of Order XV Rule 5 CPC."
8. Learned counsel for the respondents placed reliance upon a decision rendered by Hon'ble Apex Court in Bimal Chand Jain vs. Gopal Agarwal, reported in AIR 1981 Supreme Court 1657. Para 6 of the judgment is being reproduced herein below for reference:
"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 statuary 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 defene 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 7 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 excising 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 vests 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 (1981 All LJ
82). 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."
9. Learned counsel for the respondents also placed reliance upon a decision rendered by Hon'ble Allahabad High Court in Thakur Prasad vs. Gur Prasad, reported in [1979] 0 Supreme (All) 42. Para 3 of the judgment cited above reads as under:
"Now the question that arises for decision is whether order XV Rule 5 C.P.C. can be applied even to a case whether the relationship of landlord and tenant does not exist. A close reading of Order XV Rule 5 C.P.C. would in dicate that the provisions of the said Rules will apply to only a case whether a suit for eviction of a lessee is filed by a lessor after termination of his lease. Necessarily, the relationship of lessor and lessee was required to be established. For taking the benefit of Order XV Rule 5 C.P.C. for striking out the defence on the ground that the arrears of rent had not been deposited, it was essential that the relationship of lessor lessee existed. The Courts below, however, committed an error in holding that such a relationship need not be established for inspiring upon the 8 defendant to make the monthly deposit. The view of the revising authority is certainly in conflict with the language employed in Order XV Rule 5, C.P.C."
10. Learned counsel for the respondents also brought a decision of Hon'ble Allahabad High Court in Leela Devi vs. Shanti Devi, reported in [1985] 0 Supreme (All) 215 to the notice of the Court as follows:
"12. It was claimed in the plaint that the defendant no.2 took the house for defendant no.1 while in the joint written statement filed on behalf of the applicants it was claimed that applicant no.2 was the tenant and the applicant no.1 had nothing to do with it. This being so, it was incumbent upon the Court below to decide the question of relationship of landlord and tenant between the parties before proceeding to decide the application for striking off the defence as laid down in City Board, Mathura v. Ashok Kumar, (1979 0 All LJ
333), which has not been done in this case. The Court below has also not considered the question as to whether in a case of joint written statement defence of applicant no.2 could be struck off while permitting the applicant no.1 to contest the claim of the opposite party to show that she is not the tenant and thus not liable to pay rent. The very fact that the Court has permitted the applicant no.1 to contest the claim of the opposite party that she was her tenant shows that it was in doubt about the existence of relationship of landlord and tenant between them."
[Emphasis supplied]
11. Learned counsel for the revisionist referred to the decision of Dinesh Enameled Wire Industries Private Ltd. Vs. Swastik Udyog [2012] 0 Supreme (U.P.) 56165, wherein it was held in para 47 of the decision that the court below was not justified in postponing such matter till the final decision of the suit, which was done in the instant case.
912. At this juncture, it will be apt to mention a Division Bench decision of Hon'ble Allahabad High Court in the case of Bal Krishna v. Ramanand Dixit and another, 1996 (2) ARC 295, wherein a decision of Hon'ble Allahabad High Court in the case of Mahboob alias Challa v. Mohammad Hussain and others, 1983 (1) ARC 651, has been noticed. The said decision has laid down that the Court should decide the question of striking off defence as a preliminary issue before allowing the parties to adduce the evidence on merits of the case. Not deciding such question as preliminary issue is not justified.
13. Without expressing any opinion as to the final merits of the case, and conscious of it's limitation as a Revisional Court, learned Judge, Small Causes Court is desired to decide application 36-C filed on behalf of the plaintiff / revisionist under Order XV Rule 5 CPC on its own merit, instead of postponing the decision of the same, to be decided at the time of final hearing.
14. The civil revision is, accordingly, allowed. The order impugned dated 21.05.2015 is set aside. The matter is remitted back to the court below with a direction to decide the question of striking off the defence of defendant no. 1, as a preliminary issue, before allowing the parties to adduce their evidence and thereafter decide the suit on its own merit.
15. It is made clear that this Court has not given any finding as to whether the application under Order 15 Rule 5 10 CPC should be allowed or should be dismissed. The only idea, while remanding, is that instead of deferring the hearing of the application, the Court below should decide it either way, according to law.
16. The parties are at liberty to raise all the legal pleas before the Court below, as may be advised to them.
(U.C. Dhyani, J.) 12.08.2015 Kaushal 11