Allahabad High Court
Jagdish Prasad Gupta And Another vs Smt. Sudha Mehra And 3 Others on 19 May, 2023
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:111627 A.F.R.
Reserved On 05.05.2023
Delivered On 19.05.2023
Court No. - 2
Case :- MATTERS UNDER ARTICLE 227 No. - 4541 of 2023
Petitioner :- Jagdish Prasad Gupta And Another
Respondent :- Smt. Sudha Mehra And 3 Others
Counsel for Petitioner :- Prakhar Tandon
Counsel for Respondent :- Ashutosh Sharma
Hon'ble Neeraj Tiwari,J.
1. Heard Sri Atul Dayal, learned Senior Counsel, assisted by Sri Prakhar Tandon, learned counsel for the petitioners-defendants and Sri Sumit Srivastava, learned counsel for the respondents-plaintiffs.
2. Present petition has been filed seeking the following relief:
"i. Set aside the impugned order dated 16.08.2018 passed by learned trial court in SCC Suit No. 266 of 2007.
ii. Set aside the impugned order dated 15.12.2022 passed by the learned revision court in SCC Revision No. 120 of 2018."
3. Since, only legal question is involved in this matter, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.
4. Brief facts of the case are as follows:
5. The original landlord Late Sudha Mehra filed SCC Suit No. 266 of 2007 against the original tenant Late Munnu Lal seeking ejectment and recovery of arrears of rent upon which, defendant-original tenant has filed written statement in the year 2010. During the pendency of the suit, original plaintiff and defendant died and substitution applications had also been allowed.
6. Plaintiff-respondent filed application 58-Ga dated 09.07.2015 under Order XV Rule 5, CPC to srtike off the defence of the petitioner-defendant upon which, objection paper No. 59-Ga was filed by the petitioner-defendant. Application 58-Ga was allowed vide first impugned order dated 16.08.2018 upon which, petitioner-defendant preferred SCC Revision No. 120 of 2018 on 27.09.2018. During the pendency of the revision, petitioner-defendant has also filed application 24-Ga dated 28.09.2018 seeking permission of the Revisional Court to deposit the entire amount of rent due on the ground that due to incorrect advice of counsel, he has not deposited the rent as required under Order XV Rule 5 CPC. The Revisional Court vide judgment and order dated 15.12.2022 has dismissed the SCC Revision No. 120 of 2018, hence present petition.
7. Aforesaid facts are undisputed between the parties.
8. Learned Senior Counsel appearing for petitioners-defendants submitted that there is no dispute on the point that from the date of first hearing to the dismissal of the revision vide order dated 15.12.2022, petitioner-defendant has deposited the rent before the court under Section 30 of the Act No. 13 of 1972(hereinafter referred to as, 'Act of 1972').
9. He next submitted that under incorrect advice of the counsel, petitioner-defendant could not deposit the rent before the SCC Court and the mistake so committed by the petitioner-defendant is bonafide due to ill advice of the counsel. Therefore, it is required on the part of the Revisional Court to allow Application 24-Ga and permit the petitioner-defendant to deposit the rent before the SCC Court. He firmly submitted that any order passed under the provision of Order XV Rule 5 CPC is penal in nature, therefore, while passing such order, Court must consider the factum of the bonafide. In the present case, there is no dispute on the point that rent was deposited before the Court under Section 30 of Act of 1972, therefore, same must have been considered while deciding the Revisions along with Application 24-Ga by the Revisional Court. Any order passed by the Revisional Court ignoring the bonafide is bad and liable to be set aside.
10. He further submitted that in Order XV Rule 5 CPC, word 'may' has been used, which indicates that the provision is discretionary in nature and not mandatory. Therefore, it is required on the part of the Revisional Court to consider each and every aspect including the bonafide, i.e. default made due to willful failure or deliberate default or volitional performance. In case it is bonafide, it is required on the part of the Court not to strike off the defence.
11. In support of his contention, Sri Atul Dayal, learned Senior Counsel has placed reliance on the judgment of Apex Court in the matter of Bimal Chand Jain Vs. Gopal Agarwal: 1981 0 Supreme(SC) 347, Asha Rani Gupta Vs. Vineet Kumar: 2022 0 Supreme(SC) 594 and also judgment of this Court in the matter of Kedar Nath Vs. Waqf Sheikh Abdullah Cheritable Madursa and Others.: 2015 SCC Online All 7172.
12. Per contra, Sri Sumit Srivastava, learned counsel for the respondent-plaintiff vehemently opposed the submission made by learned Senior Counsel appearing for petitioners-defendants and submitted that as provided under Order XV Rule 5 CPC and also in catena of judgments, it is very well settled that any amount so deposited under Section 30 of Act of 1972 can be adjusted against the arrears of rent due before the first hearing of the suit, but so far as monthly deposit of rent is concerned, the same cannot be adjusted. It is undisputed in the present case that written statement was filed in the year 2010 and monthly amount of rent has never been deposited before the SCC Court rather it was deposited under Section 30 of Act of 1972. Therefore, same cannot be adjusted and under such fact of the case, there is no illegality in the impugned orders dated 16.08.2018 and 15.12.2022 and petition is liable to be dismissed.
13. In support of his contention, Sri Sumit Srivastava has placed reliance upon the judgment of Apex Court in the matter of Atma Ram Vs. Shakuntala Rani: (2005) 7 SCC 211. He also placed reliance upon judgments of this Court in the matter of Haidar Abbas Vs. Additional District Judge and others: 2006(1) ADJ 197(All), Panaru Lal Vs. Ganpati Jha: 2015(111) ALR 866, C.M.W.P. No. 3358 of 2015: More Singh Vs. Chandrika Prasad, Mukesh Verma and Ors. Vs. Harishchandra and Ors.: 2018(8) ADJ128, Om Prakas Gupta V. District Judge, Mainpuri and another: 2019 (3) AWC 253, C.M.W.P. No. 2725 of 2022: Gangu Vs. Smt. Alka Arora And Another.
14. He also pointed out that any ill advice of counsel cannot be a ground to reject the application under Order XV Rule 5 CPC.
15. I have considered submission made by learned counsel for the parties, perused Order XV Rule 5 CPC as well as judgments relied upon by counsels for the parties.
16. The issues before the Court are to decide as to whether any amount so deposited under Section 30 of the Act of 1972 may be adjusted in compliance of Order XV Rule 5 CPC against monthly deposit of rent after first date of hearing of the suit and effect of wrong or incorrect advice of counsel in case of default in deposit.
17. From the perusal of Order XV Rule 5 CPC, it is apparently clear that it is a beneficial legislation in favour of tenant which consists of two parts to be complied with by the tenant. The first part is arrears of rent admitted, which has to be deposited on or before first hearing of the suit and second part is monthly amount of rent, admitted or not admitted to be deposited during the continuation of suit on monthly basis within a week from the date of accrual.
18. Present controversy is arising out of interpretation of Order XV Rule 5, CPC, therefore, the same is being quoted hereinbelow:
"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, 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 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:
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."
19. For present controversy, Explanation 2 and 3 are relevant.
20. Explanation 2 provides that any amount so deposited under Section 30 of the Act of 1972 shall also be adjusted while depositing the arrears of rent on or before the first hearing of the suit. Explanation 3 is with regard to monthly amount of rent due and certainly, same does not include the provision of Section 30 of the Act of 1972. Therefore, intention of the legislation is very much clear that any amount deposited under Section 30 of the Act of 1972 can be adjusted against the arrears of rent due to be deposited on or before first hearing of the suit, but the same cannot be adjusted against monthly deposit of rent due, which is to be deposited before the Court, where the suit is pending. Therefore, there is no ambiguity or infirmity in the language of the statutory provision of Order XV Rule 5 CPC. It is a beneficial legislation and to get the benefit of that, it is required on the part of tenant to comply the same in verbatim and he cannot be permitted to read between the lines. Therefore, in light of provisions of Order XV Rule 5 CPC, any amount so deposited under Section 30 of the Act of 1972 before Court cannot be adjusted against the monthly deposit of rent required before the SCC Court.
21. Now I am coming to the judgments relied upon by the learned counsel for the petitioner-defendant.
22. The first judgment relied upon by learned Senior Counsel is a judgment of Apex Court in the matter of Bimal Chand Jain(Supra), relevant paragraph of which is quoted hereinbelow:
"6. 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 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 (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."
23. In the said judgment, the ratio of law is that, while passing any order under Order XV Rule 5 CPC, it is required on the part of the Court to consider the representation. In case representation has not been filed, even though, Court is required to consider all relevant facts available on record. In the present case, it is not the case of the petitioner-defendant that the material so available have not been considered, but contrary to that, after considering each and every fact, Courts have taken a view that any such application for adjustment of amount so deposited under Section 30 of the Act of 1972 and permission to tenant to fulfill the requirement of Order XV Rule 5 CPC is not permissible under the law. Therefore, this judgment is of no use in the present controversy.
24. Learned Senior Counsel has also relied upon another judgment of this Court in the matter of Kedar Nath(Supra), relevant paragraphs of the said judgment are quoted hereinbelow:
"4. The premises No. 205/46, Minhajpur, Dr. Katju Road, Allahabad belongs to the frist respondent, a suit for eviction, arrears of rent and damages was instituted. During the pendency of the suit, an application under Order XV Rule 5 C.P.C. was filed with the allegation that the suit is of 1999 but no amount was deposited on the first date of hearing nor regular deposit was made, thereafter. The applicant contested stating that the entire amount was deposited on the first date of hearing. The trial court allowed the application, struck off the defence of the applicant. The revisional court affirmed the order passed by the trial court.
5. The learned counsel for the applicant would submit that the courts below have failed to record the first date of hearing, written statement was filed on 13 October 2008 and on the said date a sum of Rs. 4000/- was deposited which included the rent from January 1996 to September 2008, interest and expenses, further, it is sought to be urged that even presuming that there was some delay in depositing the subsequent sums, even then the application under Order XV Rule 5 could not have been allowed, admittedly the respondent-landlord received the entire sum. It is, therefore, submitted that the purpose of Order XV Rule 5 is to ensure the payment of the rent and not being a penal provision to punish the defendant.
8. The Supreme Court in Bimal Chand Jain Versus Sri Gopal Agarwal1, on considering the provisions of Order XV Rule 5, as applicable to U.P., observed that the 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, whether or not he admits any amount to be due. 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.
9. Sub-rule (1) obliges the court to strike off the defence which is in the nature of a penalty. A serious responsibility, therefore, rests on the court in the matter, 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.
10. 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. If on the facts and circumstances already existing on the record it finds good reason for not doing so, the court is not obliged to strike off the defence, merely in the absence of such representation under sub-section(2).
11. This Court in Shiv Balak Singh Versus A.D.J., XI, Lucknow2, held that the provision of Order XV Rule 5 is discretionary.
"7. Even though technically at the time of arguments also, plea of Order XV, Rule 5, C.P.C. could be raised, however in normal course such an application should have been filed (and is normally filed) before the start of the evidence."
12. In Pramod Mehrotra and others Versus Ram Shankar Chaurasia and others3 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.
13. Again in Sudhir Kumar Gupta Versus Dr. S.K. Raj and another4, 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.
14. In Pyare Lal Versus Distrit Judge, Lucknow and others5 wherein, the Court allowed the deposit of rent upon imposing cost.
15. In Dr. Ram Prakash Mishra Versus Additional District Judge, Etah and another6, 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.
16. 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 v. Smt. Sahodra Devi, 1996(2) ARC 406)."
25. In the aforesaid judgment, the dispute was about the first date of hearing of the suit and the Court while considering different judgments has taken a view that Court is not bound to strike off the defence in every case. This judgment would also not come in the rescue of the petitioner-defendant for the very simple reason that in the present matter, there is no dispute on the facts and it is very well admitted. The issue was, as to whether any amount so deposited under Section 30 of the Act of 1972 may be adjusted against monthly deposit of rent or not and further, whether permission may be granted to tenant to fulfill the requirement of Order XV Rule 5 CPC.
26. Learned Senior Counsel also placed reliance upon the judgment of Apex Court in the matter of Asha Rani Gupta(Supra), relevant paragraphs of which are quoted hereinbelow:
"11.1 Though the aforesaid decisions in cases of Miss Santosh Mehta, Smt. Kamla Devi and Manik Lal Majumdar related to the respective rent control legislations applicable to the respective jurisdictions, which may not be of direct application to the present case but and yet, the relevant propositions to be culled out for the present purpose are that any such provision depriving the tenant of defence because of default in payment of the due amount of rent/arrears have been construed liberally; and the expression 'may' in regard to the power of the Court to strike out defence has been construed as directory and not mandatory. In other words, the Courts have leaned in favour of not assigning a mandatory character to such provisions of drastic consequence and have held that a discretion is indeed reserved with the Court concerned whether to penalise the tenant or not. However, and even while reserving such discretion, this Court has recognised the use of such discretion against the defendant-tenant in case of wilful failure or deliberate default or volitional non-performance. This Court has also explained the principles in different expressions by observing that if the mood of defiance or gross neglect is discerned, the tenant may forfeit his right to be heard in defence. The sum and substance of the matter is that the power to strike off defence is considered to be discretionary, which is to be exercised with circumspection but, relaxation is reserved for a bonafide tenant like those in the cases of Miss Santosh Mehta and Smt. Kamla Devi (supra) and not as a matter of course. The case of Bimal Chand Jain (supra) directly related with Order XV Rule 5 CPC where the tenant had deposited the arrears admitted to be due but, failed to make regular deposits of monthly rent and failed to submit representation in terms of sub-rule (2) of Rule 5 of Order XV. The defence was struck off in that matter with the Trial Court and the High Court taking the said provisions of Order XV Rule 5 CPC as being mandatory in character. Such an approach was not approved by this Court while indicating the reserve of discretion in not striking off defence if, on the facts and circumstances existing on record, there be good reason for not doing so. The common thread running through the aforesaid decisions of this Court is that the power to strike off the defence is held to be a matter of discretion where, despite default, defence may not be struck off, for some good and adequate reason.
11.2 The question of good and adequate reason for not striking off the defence despite default would directly relate with such facts, factors and circumstances where full and punctual compliance had not been made for any bonafide cause, as contradistinguished from an approach of defiance or volitional/elective non-performance.
17. With respect, the said conclusion of the High Court could only be said to be an assumptive one, being not supported by any reason. In paragraph 44, of course, the High Court observed with reference to the decisions of this Court that the discretionary power must be exercised with great circumspection but, such enunciation by this Court cannot be read to mean that whatever may be the fault and want of bonafide in the defendant/tenant, he would be readily given the so-called 'indulgence' of not striking off defence. Such an approach is neither envisaged by the statutory provisions nor by the referred decisions. In fact, such an approach would simply render the relevant provisions of law rather nugatory. The expected circumspection would require the Court to be cautious of all the relevant facts and the material on record and not to strike off the defence as a matter of routine. However, when a case of the present nature is before the Court, disclosing deliberate defiance and volitional/elective non-performance, the consequence of law remains inevitable, that the defence of such a defendant would be struck off."
27. I have perused the abovesaid judgment. The Court is of the view that in case of default, bonafide of the defendant has to be considered based upon the facts of each case. In this case, facts of filing of application under Order XV Rule 5 is entirely different and same is recorded in paragraph 4.5. of the judgment.
"4.5 Thereafter, the plaintiff-appellant filed an application with reference to the provisions of Order XV Rule 5 CPC as applicable to the present case and prayed that the defence of the defendant-respondent be struck off, for the reason that defendant had not deposited any rent and no evidence was adduced by him to establish any payment of rent. This application was contested by the defendant-respondent with the submissions that the provisions of Order XV Rule 5 CPC were applicable only to a case where the defendant would accept the plaintiff as his landlord; and in the present case, he had taken the special plea that the plaintiff was not the landlord or the owner of the suit shop and had clearly averred that there was no relationship of landlord and tenant between the plaintiff and defendant. The defendant-respondent also referred to certain rent receipts said to have been issued by the said Smt. Sudha Sharma.
28. From the perusal of para 4.5, it is apparently clear that in that case, defendant has disputed the landlord-tenant relationship and that he was not responsible for depositing the rent. Ultimately, Court has taken a view that in such matters bonafide has to be considered and Courts should take a liberal view while striking off the defence, but in the present case, fact was entirely different. There is no dispute on the landlord-tenant relationship and further monthly rent has been deposited under Section 30 of the Act of 1972, but not before the Court where the suit is pending. Therefore, the ratio of law laid down by the Court is not applicable in the present case. This issue was before the Apex Court in the matter of Atma Ram(Supra), but it appears that the said judgment was not placed before the Apex Court in the matter of Asha Rani Gupta(Supra)
29. Now I am coming to the judgments relied upon by the learned counsel for the respondent-plaintiff.
30. Learned counsel for the respondent-plaintiffs has placed reliance upon the judgment of Atma Ram(Supra). In the said case, same issue was before the Court for consideration and Court has framed the issue in paragraph 7 of the judgment and the same is quoted hereinbelow:
"7. The core question, therefore, which arises for consideration is whether the appellant defaulted in payment of rent inasmuch as he had not paid or tendered or deposited the rent for the aforesaid period in the manner required by law. The question also arises whether the deposit of rent under the Punjab Act can be construed to be a valid deposit under the Act."
31. The issue referred in the abovesaid paragraph was replied in paragraph 21 of the judgment, which is being quoted hereinbelow:
"21. The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept 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 bein default.
32. From the perusal of the question so framed and answer given by the Court, it is apparently clear that amount has to be deposited in the Court of Rent Controller, in the present case, SCC Court and any amount deposited somewhere else shall not be treated as valid payment or tender of arrears of rent within the meaning of the Act. The same fact is here that amount so deposited under Section 30 of the Act of 1972 cannot be treated to be deposited as provided under Order XV Rule 5 CPC.
33. In the matter of Asha Rani Gupta(Supra) alongwith background of fact that landlord-tenant relationship has been denied and amount so required under Order XV Rule 5 CPC has not been deposited, Apex Court has laid down a general principle of law that while dealing with the applications filed under Order XV Rule 5 CPC bonafide of the application has to be considered, whereas in the matter of Atma Ram(Supra), issue was that in case money deposited under the provision of Act before any other court can be adjusted or not and Court has opined that such amount cannot be adjusted. In the present case, issue is squarely covered by the judgment of Atma Ram(Supra), therefore, the general law laid down by the Apex Court in the matter of Asha Rani Gupta(Supra) shall not be applicable and this case has to be governed by the law laid down by the Apex Court in the matter of Atma Ram(Supra).
34. Learned counsel for the respondent-plaintiffs has also placed reliance upon the judgment Division Bench of this Court in the matter of Haidar Abbas (Supra), in which ration of law laid down by the Apex Court in the matter of Atma Ram(Supra) has been followed. Relevant paragraph of the said judgment is quoted hereinbelow:
"21. It, therefore, follows that when the "entire amount admitted by him to be due" is deposited at or before the first hearing of the suit, the amount deposited under Section 30 of the Act, if any, can be deducted but while depositing the "monthly amount due" throughout the continuation of the suit, the amount deposited under Section 30 of the Act cannot be deducted. Needless to say 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 the period stipulated in Order XV Rule 5 CPC.
22. The Supreme Court in the case of Atma Ram Vs. Shakuntala Rani (2005) 7 SCC 211 had the occasion to examine whether the tenant defaulted in payment of rent if he had not paid or tendered or deposited the rent in the manner required by law and whether the deposit of rent under some other Act could be construed to be a valid deposit. The tenant had sent a money-order remitting the rent but the landlord refused to accept it and, therefore, the tenant deposited the rent for the period from 1st February, 1992 to 31st January, 1995 in January, 1995 under the provisions of the Punjab Relief Indebtedness Act, 1934 (called the ''Punjab Act'). The landlord, however, sent a notice dated 16th May, 1996 to the tenant to pay arrears of rent. The tenant on 20th July, 1996 deposited the rent for the period February, 1995 to 12th July, 1996 under Section 27 of the Delhi Rent Control Act, 1961 (called the ''Delhi Act'). The arrears of rent from 1st February, 1992 to 31st January, 1995 was not included since the tenant had deposited the same under the Punjab Act. Section 27 of the Delhi Act provides that where the landlord does not accept any rent tendered by the tenant, the tenant may deposit such rent with the Rent Controller in the manner provided for in that section. The landlord then filed an application for eviction of the tenant under Section 14 (1) (a) of the Delhi Act. 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 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.
We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the Punjab Act was of no avail in view of the express provision of Section 27 of the Act."
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.
37. 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. "
35. In the aforesaid judgment, the Court has taken a firm view that while depositing the amount on or before the first hearing of the suit, tenant can deduct the amount deposited under Section 30 of the Act of 1972, but deposit of monthly amount of rent throughout the continuation of the suit must be made in the Court, where the suit is filed for eviction and any amount deposited under Section 30 of the Act of 1972, cannot be adjusted.
36. Again this issue came up before this Court in the matter of Panaru Lal(Supra). Relevant paragraph of the aforesaid judgment is quoted hereinbelow:
"10. In the facts of the case in hand, it is undisputed that the tenant failed to deposit the monthly rent in the Court where the suit was pending. The courts below have recorded a finding of fact in this regard which learned counsel for the petitioner has failed to demonstrate to be vitiated on any count. Even if, the amount towards rent was being deposited by the tenant under Section 30 of Act No. 13 of 1972, though, not defaulting, still the petitioner was under an obligation to deposit the monthly rent due before the Court where the suit was pending, the amount so deposited under Section 30 of Act No. 13 of 1972 was not liable to be deducted from the said deposit, thus, the tenant was clearly in default. Having due regard to the facts and the legal proposition stated herein above, there is no illegality or infirmity in the impugned orders which requires any interference by this Court."
37. After considering the ratio of law laid down by the Division Bench of this Court in Haidar Abbas(Supra) the Court has taken the same view that any amount so deposited under Section 30 of Act of 1972 can be adjusted against the arrears of rent before the first hearing of the suit, but so far as monthly rent is concerned, the same cannot be adjusted.
38. Again this issue came up before this Court in the matter of More Singh(Supra), relevant paragraphs of the said judgment are quoted hereinbelow:
"6. The sole question for consideration is whether the tenant is entitled to the benefit of deposits made in proceeding under Section 30 in misc. case no. 27/7/08.
A Division Bench of this Court in Haider Abbas vs. Additional District Judge (Court No.3) Allahabad and others1 while considering the provisions of Order XV Rule 5 CPC and the decision of the Supreme Court in Atma Ram2 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 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."
In Basant Kumar Chauhan Vs. VIIth A.D.J.3 after analyzing the provisions of Order XV Rule 5 CPC, this Court observed:-
"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.............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. .........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(1) 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."
In Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad4, after placing reliance on the decisions rendered in Basant Kumar Chauhan and Sayeed Hasan Jafar alias Shakil Ahmad Vs. Rurabal Haq and others5, this Court observed as follows:-
"In view of the aforesaid decisions of this Court, it is evident that the deposit of the monthly rent/compensation by the petitioner (defendant) under Section 30 of the U.P. Act No. XIII of 1972 during the continuance of the said S.C.C. Suit No.26 of 1977 were illegal, and the same could not be said to be made in compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure. Once the "first hearing" in the said S.C.C. Suit No.26 of 1977 arrived, it was no longer open to the petitioner to continue to deposit the monthly rent/compensation under Section 30 of the U.P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad. The said monthly deposits should have been made in the said S.C.C. Suit No.26 of 1977 before the respondent No.2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure namely, head (B) above."
"7. It thus follows that while deposits made under Section 30, before the date of first hearing are to be adjusted but any rent deposited thereafter in proceeding under Section 30 would not enure to the benefit of the tenant for adjudging compliance of the provisions of Order XV, Rule 5 CPC.
8. In the instant case, admittedly after filing of written statement on 28.3.2009, which can safely be assumed to be the date of first hearing in the suit, till the striking off of his defence by the trial court on 15.3.2011, not a single penny was deposited in the suit. The petitioner had also not made any representation, in that regard. As such, there was no error on part of the trial court, in striking off the defence."
39. Here again, the view of the Court was same that any amount so deposited under Section 30 of the Act of 1972 cannot be adjusted against the monthly deposit of rent as required under Order XV Rule 5 CPC.
40. This Court has considered the very same issue in the matter of Mukesh Verma(Supra) and considering the provision of Order XV Rule 5 CPC and law laid down by Courts, this Court has recorded its conclusion. Relevant paragraph of the said judgment is quoted hereinbelow:
"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. "
41. The Court in the aforesaid matter has taken a firm view that any amount so deposited under Section 30 of the Act of 1972 cannot be adjusted for monthly amount of rent as required under Order XV Rule 5 CPC.
42. Again this issue was considered by this Court in the matter of Om Prakas Gupta(Supra). Relevant paragraph of the said judgment is quoted hereinbelow:
"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."
43. View of the Court is again same and earlier ratio of law laid down by the Courts, that any amount so deposited under Section 30 of the Act of 1972 cannot be adjusted against the monthly deposit as required under Order XV Rule 5 CPC, has been followed.
44. The very same issue again came before this Court in the matter of Gangu(Supra), relevant paragraph of which is being quoted hereinbelow:
"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. "
45. In this judgment, this Court after considering the judgment in the case of Haidar Abbas(Supra) has held that as any amount so deposited under Section 30 of the Act of 1972 cannot be adjusted against monthly deposit of rent as provided in the second part of Order XV Rule 5 CPC.
46. Therefore, in light of law laid down by the Courts, it is apparently clear that any amount so deposited under Section 30 of the Act of 1972 cannot be adjusted against the monthly deposit of rent as provided in second part of Order XV Rule 5 CPC and it has to be deposited in such Court, where the suit is pending.
47. Another issue argued by learned counsel for the petitioner is about the incorrect advice of counsel, relying upon which deposit was made under Section 30 of the Act of 1972. This issue was subject matter before this Court in Sunil Kumar and Ors. Vs. Shri Kapoor Chandra Agarwal Dharmshala Trust: 2019(10) ADJ 682, relevant paragraph of the said judgment is quoted hereinbelow:
"3. The aforementioned suits were contested by the tenants by filing their written statements. It is undisputed that on the first date of hearing, the amount in question, as required under Order XV Rule 5 of the Code of Civil Procedure, was deposited; however, thereafter during the continuation of the suit proceedings, the monthly amount due was not deposited, and subsequently an application was moved under Order XV Rule 5 CPC for condoning the delay and for depositing the arrears of rent which as per the tenant-petitioners could not be deposited earlier due to wrong legal advice. The applications which were moved, were objected to by plaintiff-landlord by filing objections. The aforementioned applications which had been filed by the defendant-tenant on 29.11.2005 seeking condonation of delay and permission to deposit the arrears of rent, were allowed with costs of Rs. 1500/-. The aforementioned orders were challenged by the plaintiff-landlord by filing SCC revisions, which were dismissed vide order dated 01.09.2006 and against the aforesaid order the writ petitions, being writ petition nos. 66771/2006, 66769/2006 and 66770/2006 were filed.
33. The petitioners having admittedly defaulted in making payment of the monthly amount due as per the terms of the second part under Order XV Rule 5 for a period of 40 months, and the only explanation sought to be furnished was by way of shifting the burden upon their earlier counsel, which fact also could not be proved by them by leading any cogent evidence, in view of the settled legal position with regard to the mandatory requirement of making compliance of the beneficial provisions under Order XV Rule 5, the orders passed by the courts below rejecting the representations made by the tenants for condoning the delay and granting them permission for making the necessary deposits, and allowing the application filed by the landlord for striking off their defence, cannot be faulted with."
48. From the perusal of the said judgment, there is no doubt that incorrect or illegal advice cannot be a ground to reject the application under Order XV Rule 5 CPC and allow the application 24-Ga and issue orders for adjustment of amount so deposited under Section 30 of the Act of 1972 against monthly deposit of rent as provided in Order XV Rule 5 CPC.
49. After considering the provision of Order XV Rule 5 CPC as discussed hereinabove and law laid down by the Courts, this Court is of the firm view that so far as first part of Order XV Rule 5 CPC with regard to deposit of arrears of rent on or before first hearing of the suit, amount so deposited under Section 30 of the Act of 1972 can be adjusted, but so far as second part of Order XV Rule 5 CPC, i.e. monthly deposit of rent is concerned, the amount so deposited under Section 30 of the Act of 1972 cannot be adjusted and it is mandatory requirement to deposit the same before the Court where the suit is pending.
50. Therefore under such facts and circumstance of the case as well as law discussed hereinabove, I find no illegality in the impugned orders dated 16.08.2018 and 15.12.2022.
51. Petition lacks merit and is accordingly dismissed.
52. No order as to costs.
Order date: 19.05.2023 ADY