Allahabad High Court
Pushpa Gupta vs Subhash Chandra And Another on 10 July, 2019
Equivalent citations: AIR 2020 (NOC) 641 (ALL.), AIRONLINE 2019 ALL 1515, 2020 (2) ALJ 68, (2019) 137 ALL LR 343, (2019) 2 ALL RENTCAS 870, (2019) 4 ALL WC 3907, (2019) 8 ADJ 376 (ALL)
Author: Yogendra Kumar Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 01.05.2019. Delivered on 10.07.2019 Court No. - 3 Case :- S.C.C. REVISION No. - 48 of 2019 Revisionist :- Pushpa Gupta Opposite Party :- Subhash Chandra And Another Counsel for Revisionist :- Ashish Kumar Srivastava Counsel for Opposite Party :- Chetan Prakash,Shachi Srivastava Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Ashish Kumar Srivastava, learned counsel for the revisionist and Sri Atul Dayal along with Sri Chetan Prakash, learned counsel for the respondents.
2. The present revision has been filed with a prayer to set aside the order dated 28.2.2019 and the formal order dated 12.3.2019 passed by the Additional District Judge, Court No. 2/J.S.C.C. District Varanasi in S.C.C. Suit No. 07 of 2017, whereby the court below has rejected the application (Application No. 16-C) filed by the revisionist/defendant seeking exemption from depositing any rent under Order XV Rule 5 of Code of Civil Procedure.
3. Briefly stated the facts of the case are that S.C.C. Suit No. 07 of 2017 (Subhash Chandra Vs. Smt. Pushpa Gupta) was filed seeking eviction of the revisionist from premises being part of the House No.C.K.48/178A Mohalla Hadaha District Varanasi and also claiming arrears of rent.
4. The records of the case indicate that the premises originally formed part of House No. C.K.48/178 which was owned by Smt. Saroj Gupta. The aforementioned landlady executed a registered sale deed dated 16.3.2015 and in terms thereof a portion of the southern part of the aforementioned house was sold to Saurabh Singh and others.
5. The revisionist admits to having been served with a notice dated 18.3.2016 by the erstwhile owner Smt. Saroj Gupta containing a recital to the effect that she had sold a portion of the house bearing House No. C.K 48/178, Hadaha Varanasi, on 16.3.2015 to Saurabh Singh and others, and that she had received the rent inclusive of taxes upto the month of February, 2015 from Smt. Pushpa Gupta (revisionist-defendant), in respect of the premises in question, and further that after execution of the sale deed she was no longer entitled to receive rent for the aforesaid tenanted portion and that the rent henceforth be paid to Saurabh Singh and others. A copy of the notice has been filed as annexure 3 to the affidavit filed in support of the stay application along with present memo of revision. For ease of reference the notice dated 18.3.2016 is being reproduced below :-
"eSa] Jherh ljkst xqIrk iRuh Jh osn izdk'k xqIrk fuokfluh edku uEcj&lh-ds-48@179] gM+gk] okjk.klh us viuk edku uEcj&lh-ds- 48@178] gM+gk] okjk.klh dk cM+k tqt Hkkx ctkfuc nf{k.k fnukad 16-03-2015 bZ- dks lkSjHk flag oxSjg dks fodz; dj fn;k gS vkSj Qjojh] 2015 bZ- rd dk fdjk;k e; tydj vki Jherh iq"ik xqIrk iRuh Loa0 fo".kq izdk'k xqIrk ls 50@& ¼ipkl½ :i;k ekgokj dh nj ls izkIr dj fy;k gS tks mDr edku esa izFke ry ij fLFkr nks dejk o ySfVªu o ,d fdpu rFkk layXu lh<+h esa esjs fdjk;snkj FkhaA mDr fdjk;snkjh okys va'k dh vfxze vof/k dk fdjk;k izkIr djus ds fy, mDr fodz; foys[k ds fu"iknu ds ckn eSa vf/kd`r ugha jg xbZ gwW cfYd vki lkSjHk flag oxSjg orZeku Lokehx.k dks fdjk;k iznku djsaA "
6. It transpires that the revisionist-tenant filed an application dated 3.5.2016 under Section 30 (2) of U.P. Act No. 13 of 1972 registered as Misc. Case No. 46 of 2016 (Smt. Pushpa Gupta Vs. Subhash Chandra and others) stating therein that a portion of the premises under her tenancy was part of House No. C.K.48/178 Hadaha Varanasi whose owner was Smt. Saroj Gupta, and a portion of the said premises was part of House No. C.K.48/178-A Hadaha Varanasi the owner of which were Subhash Chandra and Pankaj Devvanshi. It was further stated that Smt. Saroj Gupta was not accepting rent whereas according to the revisionist she also had a share in the rent, and Subhash Chandra and Pankaj Devvanshi were insisting that the revisionist accepts them as the owner and landlord of the entire premises under her tenancy. In view of the aforesaid, it was asserted by the revisionist that a bonafide doubt had arisen and accordingly by means of an application a prayer was being made for making deposit of rent under Section 30 (2) of U.P. Act No. 13 of 1972.
7. Subsequently upon the suit for eviction and arrears of rent having been filed, being SCC Suit No. 07 of 2017, the revisionist-tenant filed her written statement dated 31.10.2017 wherein the fact with regard to deposit being made under Section 30 (2) of U.P. Act No. 13 of 1972 was reiterated. The defendant-tenant however admitted the fact of having been served with the notice dated 18.3.2016 by the erstwhile landlady Smt. Saroj Gupta referred to above.
8. It appears that on the same date an application (Application No. 16-C) was also filed by the defendant-tenant, revisionist herein, seeking exemption from depositing rent under Order XV Rule 5 C.P.C. in the court in which the suit was pending. The revisionist claimed that she may be exempted from making the necessary deposit under Order XV Rule 5 until decision as to entitlement of share of rent payable to the plaintiffs, and further made a prayer for permission to deposit the rent under Section 30 (2) of U.P. Act No. 13 of 1972. Objections dated 17.2.2018 were filed by the plaintiff-landlords to the aforementioned application and a prayer was made to strike off the defense of the defendant-tenant for want of compliance of the provisions contained under Order XV Rule 5 C.P.C.
9. The aforementioned application (Application No. 16-C) filed by the revisionist-tenant has been rejected by the trial court vide order dated 28.2.2019, against which the present revision has been filed.
10. Contention of the counsel for the revisionist is that the premises under her tenancy form part of House No. C.K.48/178 and also part of House No. C.K.48/178-A, in Mohalla Hadaha Varanasi. It is further submitted that the landlady of House No. C.K.48/178 is Smt. Saroj Gupta whereas the landlord of House No. C.K.48/178-A are the plaintiffs, and accordingly a bonafide doubt having arisen as to the quantum of rent payable to the plaintiffs and to Smt. Saroj Gupta the deposit of rent is being made under Section 30 (2) in Misc. Case No. 46 of 2016, and as such the revisionist is entitled for exemption from the requirement of making deposit in court under Order XV Rule 5 C.P.C. until decision as to entitlement of the share of rent payable to the plaintiffs. It is further contended that since the revisionist is making deposit of the rent under Section 30 (2) there was no occasion for making any deposit in the court where the suit is pending as per the provisions of Order XV Rule 5 C.P.C..
11. Reliance has been sought to be placed upon the judgments in the case of Dr. Ram Prakash Mishra (since deceased) Vs. IVth Additional District Judge, Etah and another1, Habiburahaman Vs. District Judge, Jhansi and others2, and Sanjay Agrawal Vs. Ganga Prasad Agrawal and another3, in order to contend that the revisionist having made deposits under Section 30 (2) there was substantial compliance of the legal provisions and her defense could not have been struck off.
12. Per contra learned counsel appearing for the respondents has supported the order passed by the trial court rejecting the application filed by the revisionist seeking exemption from complying with the provisions contained under Order XV Rule 5 C.P.C. and striking off the defense of the revisionist-tenant for non-compliance thereof. It is submitted that after the date of summons of the suit filed for arrears of rent, the deposit made under Section 30 (2) could not be taken into consideration for the purpose of deciding as to whether the defence should be struck off or not under Order XV Rule 5 C.P.C.
13. Counsel for the respondents has placed reliance on the judgments in the case of Haider Abbas Vs. Additional District Judge and others4 and Krishna Kumar Gupta Vs. Manoj Kumar Sahu5, to support their case.
14. Heard counsel for the parties and perused the record.
15. In order to appreciate the rival contentions it may be necessary to advert to the provisions contained under Order XV Rule 5 C.P.C. which are as follows :-
"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."
16. The provisions contained under Order XV Rule 5 CPC (as amended by U.P. Act No. 17 of 1976), came up for consideration before the Supreme Court in the case of Bimal Chandra Jain vs. Gopal Agarwal6 wherein it was held as follows:
"3. Rule 5 Order 15 of the Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act, 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re-enacted as follows:
"Striking off defence on 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 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 1-3 * * * * (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 ten 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 security for such sum before he is allowed to withdraw the same."
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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."
17. The question as to whether deposit made under Section 30 of the U.P. Act No. 13 of 1972 after receipt of summons in a suit could be taken into consideration for the purposes of compliance under Order XV Rule 5 CPC was referred to a larger Bench of this Court in the case of Haider Abbas Vs. Additional District Judge and others4 and the Larger Bench observed that Order XV Rule 5 is in two parts. The first part deals with the deposit of entire amount admitted by the tenant to be due together with interest on or before the first hearing of the suit, whereas the second part deals with the deposit of the monthly amount due which has to be made throughout the continuation of the suit. The observations made in the judgment of the Larger Bench are as follows:
"12.In the present case, however, we are called upon to consider whether the deposit made under Section 30 of the Act can be deducted while calculating the "monthly amount due" and not whether the defence should be struck off in a case where no representation has been filed by the tenant irrespective of the fact that on record there exist sufficient facts and circumstances not to do so.
13. On a careful analysis of the provisions of Order XV Rule 5 CPC we find that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit.
14. Explanation 2 to Order XV Rule 5 (1) CPC stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court under Section 30 of the Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5 (1) of Order XV Rule 5 CPC to mean 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.
15. What has to be noticed in Order XV Rule 5 CPC is that the Legislature while defining "monthly amount due" which has to be deposited during the continuation of the suit has deliberately excluded the deduction of any amount deposited under Section 30 of the Act. We are, therefore, faced with a situation where the same Rule defines "entire amount admitted by him to be due" and "monthly income due" occurring in the first part and second part respectively of the Rules and while the former phrase stipulates the deduction of the amount deposited under Section 30 of the Act, the second part omits to mention such a deduction. It has, therefore, to be inferred that the Legislature has, in its wisdom, deliberately made a provision for deduction of the deposit of the amount under Section 30 of the Act only in respect of the amount to be deposited at or before the first date of hearing and not in respect of the monthly amount to be deposited throughout the continuation of the suit. This, coupled with the fact that both Explanation 2 and Explanation 3, referred to above provide "after making no other deduction except...." clearly leads us to no other conclusion except that only such deductions are to be made which have been specifically provided. The "monthly amount due" has to be construed in the manner provided for in Explanation 3 to Rule 5 (1) of Order XV CPC and in no other manner."
18. Referring to an earlier judgment in the case of Atma Ram Vs. Shakuntala Rani7, in the aforementioned case of Haider Abbas, it was held that if the tenant wished 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.
"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, C.P.C
22. The Supreme Court in the case of Atma Ram v. Shakuntala Rani, 2005 (61) ALR 450 : 2005 (35) AIC 568 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 v. Ganpat Lal, (1996) 1 SCC 243; Jagat Prasad v. Distt. Judge, Kanpur, 1995 Supp (1) SCC 318; M. Bhaskar v. J. Venkatarama Naidu, (1996) 6 SCC 228; Ram Bagas Taparia v. Ram Chandra Pal, (1989) 1 SCC 257 and E. Palanisamy v. Palanisamy, 2002 (49) ALR 759 (SC) 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.
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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."
19. The aforestated view with regard to the tenant being obliged to strictly comply with the requirements of the Act in order to avail the advantage of the beneficial provisions has been reiterated by this Court in the judgments in the case of Kanhai and another vs. Prafull Kumar8, Ram Prakash Jaiswal vs. Smt. Rajwati and others9 and also in the case of Smt. Anjoo Chaturvedi vs. Shri Aavadhesha Kumar Srivastava and others10 .
20. The judgment in Krishna Kumar Gupta Vs. Manoj Kumar Sahu5 which has been relied upon by the learned counsel for the respondents is also to a similar effect wherein it was held that in a case where there was a failure in making monthly deposits as required in terms of Order XV Rule 5 C.P.C., the defence had rightly been struck off.
21. The provisions under sub rule (2) of Rule 5 under Order XV which provides a locus poenitentiae to the defaulting tenant to make a representation within a period of 10 days of the first hearing or within a week from the date of accrual of rent, as the case may be, came up for consideration before a Division Bench of this Court in the case of Pooran Chandra vs. Pravin Gupta11, and it was held that in a case where the tenant had not made any representation or had made it beyond the time prescribed the court did not have a discretion to condone the default. The relevant observations made in the judgments are as follows:
"3. The provision enacted by the 1976 Act, was more detailed and more light. The tenant was required to deposit the entire arrears along with interest at nine percent at or before the first hearing, and also to deposit the monthly amount within a week of its accrual. Previously there was no time limit for depositing the monthly rent. The tenant was to deposit the amount of monthly rent regularly. Now he was required to deposit the monthly rent within a week from the data of its accrual.
4. The power of the Court to allow further time to deposit was circumscribed. Sub-rule (2) authorised the Court to consider the representation provided such representation is made within ten days of the first hearing or of the expiry of the week...." Thus sub-rule (2) provided a locus poenitentiae to the defaulting tenant; but he must make the representation within ten days of the first hearing or within a week from the date of accrual of rent, as the case may be. If the representation is not made within the specified period of time, the Court has no jurisdiction to consider a time barred representation or condone the delay or extend time.
5. For the defendant applicant it was submitted that the use of word 'may' in sub-rule (1) indicates that nonetheless the Court has discretion not to pass an order striking off the defence. Even though the tenant may not have made any representation or made it beyond time, the Court had a discretion and could, in a suitable case, condone the default. We are unable to agree.
6. Sub-rule (1) says that "the Court may subject to the provisions of sub-rule (2) strike off the defence". The discretion emphasized by the use of the word 'may' is with reference to sub-rule (2) under which the Court can condone. The Court is not bound to condone. It exercises a judicial discretion. The discretion is "subject to" sub-rule (2). "Subject to" means "conditional upon" K.R.C.S. Bala Kishan Chetty and Sons v. The State of Madras, A.I.R. 1961 S.C. 1152. If the condition mentioned in sub-rule (2) was satisfied the Court may not strike off. The Court was given the discretion to consider the representation and if it thought it to condone the default to refrain from striking off the defence. If the Court was not in a position to condone the default, it had no discretion left to or not to strike off the defence it had to strike it off.
7. Sub-rule (2) says "before making an order for striking off the defence, the Court may consider any representation...." This shows that the striking off is postponed till consideration of the representation. If there is a default, the Court is under a duty to strike off, unless it condones under sub-rule (2).
8. The use of word "may" is not decisive, It can mean "shall" (Sri Rangaswmai, the Textile Commissioner and others v. The Sagar Textile Mills (Pvt.) Ltd. and another, A.I.R. 1977 S.C. 1516. It depends on the object and context. Sub-rule (2) uses the word 'may' in the phrase "the Court may consider any representation." It will be preposterous to suggest that the Court can in its discretion refuse to consider a representation made within time. The Court is bound to consider it. It has no discretion there.
9. Order XV, Rule 5 C.P.C. was intended to pursuade the tenant to caught up the admitted rent, in time on pain of penalty if his defence being struck off. This object will fail of the Court is permitted, because of 'may' to nullify it. "
22. In the case at hand, the revisionist-tenant has sought to raise a contention that she was entitiled for exemption from the requirement of making deposit under Order XV Rule 5 C.P.C. for the reason that a bonafide doubt had arisen as to the person entitled to receive the rent and accordingly the deposit of rent was being made under Section 30 (2).
23. In order to appreciate the aforesaid contention Section 30 of the U.P. Act No. 13 of 1972 may be referred to and the same is being reproduced as under :-
"30. Deposit of rent in court in certain circumstance. - (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may like wise deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent Court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building.
(3) The deposit referred to in sub-section (1) , or sub-section (2) shall be made in the Court of the Munsif having jurisdiction.
(4) On any deposit being made under sub-section (1) , the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf.
(5) On a deposit being made under sub-section (2), the Court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent Court or by a settlement between the parties, and the same shall be payable to such person.
(6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in, whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2)."
24. A plain reading of sub-section (2) of Section 30 would go to show that in terms thereof, a right is given to the tenant of a building where he is unable to pay the rent on account of any bonafide doubt in his mind, or any dispute as to the person entitled to receive the rent thereof. Under sub-section (2) the tenant can continue to deposit the rent till the doubt is removed or the dispute is settled through court or by settlement between the parties.
25. The object of sub-section (2) is clearly to meet a situation where it has become doubtful as to who is entitled to receive the rent. In such a situation it may not be desirable to leave it open to the tenant of a building to choose between the rival claimants of rent in respect of the building and it is in order to relieve the tenant of this predicament that a provision has been made for deposit of rent in court till the doubt or dispute is resolved.
26. The doubt or dispute which may form the basis for invocation of the provisions under sub-section (2) of Section 30, however must be a bonafide one, and the tenant cannot claim to make deposit of rent under Section 30 (2) in the absence of any such bonafide doubt or dispute.
27. In this regard reference may be had to the judgment in the case of Nannhey Mian Vs. Sheikh Mohd. Yusuf and others12, where in the context of a similar provision under Section 7C-(2) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, it was held as follows :-
"5. Applying this principle to the present case, the appellant as tenant had received a notice of demand both from the old and the new landlord. In such a situation he was clearly entitled to protect his position by demanding from the new landlord proof of title before paying the rent. It is admitted that no proof of title was submitted in response to the appellant's bona fide request. In these circumstances he could, not be adjudged a defaulter. Learned counsel for the respondent argued that it was the duty of the appellant after he had received a notice of demand from the new landlord to avail of the procedure under Sec. 7C of the Act which, according to counsel, was enacted to provide for situations like this. I do not think that under the circumstances there was any duty on the appellant to take the trouble of going to the court and making a deposit under Sec. 7C. Sub-Sec. (2) of Sec. 7C, on which counsel relied, runs thus:--
"Sec. 7C-(2). Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in sub-Sec. (1) in respect of any accommodation, the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building."
This sub-section enables the tenant to deposit the rent in court whenever a bona fidedoubt or dispute has arisen as to the person who is entitled to receive the rent. Doubt here means doubt in the mind of the tenant. But the tenant is under no obligation to act under Sec. 7C as soon as he received a notice of demand from a mere stranger who alleges that he is the landlord of the accommodation. A doubt arises only when there are rival claims leading to a dispute with regard to the title. In the present case if the plaintiff-respondent had shown the sale deed to the appellant, the latter was bound to take some action but the respondent ignored the appellant's request for proof of title and he cannot therefore argue that there was a bona fide dispute as to who was entitled to receive the rent".
28. The purpose for which sub-section (2) of Section 30 was enacted came up for consideration in the case of Sant Kumar Tandon Vs. Munsif East Allahabad and others13, wherein it was held that the scheme of Section 30 of the Act contemplates of a deposit at the instance of the tenant under Section 30 (2) of the Act in a case of bonafide doubt or dispute having arisen as to the person who is entitled to receive any rent in respect of any building. The relevant observations made in the judgment are as follows :-
"8. The Scheme of Section 30 of the Act contemplates of a deposit at the instance of the tenant under Section 30(2) of the Act in case a bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building. A right has been given to the tenant to go on making the deposit until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties. A bare reading of the aforesaid provision shows that at the stage of Section 30(2) it is the tenant who moves an application and is permitted to make the deposit if he shows a prima facie case. The deposit can be permitted by the court without issuing notice to the contending landlords. This is clear from the provisions of Section 30(5) which says that the court shall cause notice of the deposit made under sub-section (2) to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties and the same shall be payable to such person............"
29. In terms of the aforementioned judgment it has been clarified that unless the tenant shows prima facie that there is a bonafide doubt as to which of the contending parties is entitled to receive the rent, the deposit of rent by him under sub-section (2) of Section 30, would not be permissible.
30. It may also be necessary to advert to the judgment in the case of Ibrat Husain Vs. The IV Additional District & Sessions Judge, Kanpur and others14, for the proposition that the fact whether any bonafide doubt or dispute in respect of the building in question as well as who is entitled to receive rent in respect of the building in question as also the fact whether the person who made the deposit was a tenant would be jurisdictional facts which must exist to entitle the tenant to take recourse to sub-secion (2) of Sec. 30 of the Act, and before issuing notice to the person or person concerned under sub-section (5) of Section 30, the Court would have to satisfy itself as to whether the jurisdictional facts necessary for invocation of sub-section (2) of Section 30 were manifest from the application made by the tenant. The relevant extract from the aforementioned judgment in the case of Ibrat Husain is as follows :-
"7. In view of a specific provision having been introduced in Sec. 30 of the new Act being sub-sec. (5) of the said section for a notice being issued to the person or persons concerned even if deposit of rent has been made by the tenant on the ground that any bonafide doubt or dispute has arisen as to the person who is entitled to receive any rent is respect of the accommodation occupied by the said tenant, in my opinion the law laid down by the Division Bench in Fateh Chand's case [1967 A.L.J. 979.] would now equally apply even in respect of deposit made by tenants on the ground that a bonafide doubt or dispute had arisen as aforesaid. As such the fact whether any bonafide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of the building in question as well as the fact whether the person who made the deposit was a tenant would be jurisdictional facts which must exist to entitle the tenant to take recourse to sub-sec. (2) of Sec. 30 of the Act. Before issuing notice to the person or person concerned under sub-sec. (5) of Sec. 30 of the new Act the Munsif would have to satisfy himself as to whether the jurisdictional facts were prima facie made out by the application made by the tenants. Further, when notice to the person or persons concerned has been issued under sub-sec. (5) and anyone of those persons appears before the Munsif and files an object on questioning the presence of the jurisdictional facts it will not only be within the power of the Munsif but the duty of the Munsif as pointed out by the B-Division Bench in Fateh Chand's [1967 A.L.J. 979.] case to go again into the question as to whether or not the jurisdictional facts necessary to enable him to act under sub-sec. (2) of Sec. 30 of the new Act exist.........."
31. In the case of Hari Singh Vs. Brahm Narayan Mehrotra15, an earlier judgment in the case of Ramayan Ram Vs. Bharat Ram16, which had been passed in the context of Section 7-C (2) of the earlier Act (U.P. (Temporary) Control of Rent and Eviction Act, 1947), was relied upon to conclude that where there is no bonafide doubt as to who is entitled to receive rent and there is no dispute in that respect, the tenant is not authorised to deposit rent in Court, and if he does so, the deposit would not be valid and he cannot be given any benefit of the deposit. The relevant observations made in the judgment are as follows :-
"..........In the case of Ramayan Ram v. Bharat Ram [1964 A.W.R. 590.], Dhavan, J. has held that a tenant has to establish that there was any bona fidedoubt or dispute, or a dispute had arisen as to person who was entitled to receive the rent and then only he could deposit the rent under section 7-C(2) of the Act. Under these circumstances, the view taken by the lower courts cannot be considered to be erroneous in law. Certainly there is no question of any jurisdictional error in taking such a view."
32. It may also be relevant to advert to sub-section (6) of Section 30 which provides the consequence of deposit made under sub-section (1) and (2), and in terms of the deeming provision contained therein a legal fiction is created in case of deposits validly made; however, if the deposit has been made without any justification for the same the tenant would not be entitled to claim protection thereof.
33. The meaning and import of a deeming provision was considered at length while interpreting the deeming clause under Explanation I to Section 2 of U.P. Act No. 13 of 1972 in the case of Sudha Rani Garg (Smt.) Vs. Jagdish Kumar (Dead) and others17.
34. The nature and scope of a deeming clause was also considered in an earlier judgment in the case of Ali M.K. And others Vs. State of Kerala and others18, wherein it was held as follows :-
"13.........Therefore, the vital question is whether the appointment is made in the exigencies of public service. For that purpose, Note 1 assumes significance. It is, as noted above, a deeming provision. Such a provision creates a legal fiction. As was stated by James, L.J. in Levy, Re, ex p Walton19 "when a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate."
[See Hill v. East and West India Dock Co.20, State of Travancore Cochin v. Shanmugha Vilas Cashewnut Factory21, American Home Products Corpn. v. Mac Laboratories (P) Ltd.22 and Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi23. In an oft-quoted passage, Lord Asquith stated: (All ER p. 599 B-D) "If you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had, in fact, existed must inevitably have flowed from or accompanied it. ... The statute states that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
(See East End Dwellings Co. Ltd. v. Finsbury Borough Council24.) "The word ''deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."
[Per Lord Radcliffe in St. Aubyn (L.M.) v. Attorney-General (No. 2)25 All ER p. 498 F-G.]
14. "Deemed", as used in statutory definitions "to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words ''deem' and ''deemed' when used in a statute thus simply state the effect or meaning which some matter or thing has -- the way in which it is to be adjudged; this need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion." (Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds26.)
15. When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J., R. v. Norfolk County Court27.) "When a statute gives a definition and then adds that certain things shall be ''deemed' to be covered by the definition, it matters not whether without that addition the definition would have covered them or not."(Per Lord President Cooper in Ferguson v. McMillan28.)
16. Whether the word "deemed" when used in a statute established a conclusive or a rebuttable presumption depended upon the context (see St. Leon Village Consolidated School Distt. v. Ronceray29.) "I ... regard its primary function as to bring in something which would otherwise be excluded."
(Per Viscount Simonds in Barclays Bank v. IRC30).
"Deems" means "is of opinion" or "considers" or "decides" and there is no implication of steps to be taken before the opinion is formed or the decision is taken.[See R. v. Brixton Prison (Governor), ex p Soblen31, All ER p. 669 C.]
35. In view of the foregoing discussion it may be concluded that in order to claim the benefit of the deeming provision under sub-section (6) of Section 30 the deposit has to be made either under sub-section (1) or sub-section (2) subject to the existence of the necessary conditions. The expression 'as aforesaid' occurring in sub-section (6) implies that in order to claim benefit of the deposit the same has to be a valid deposit and in accordance with the provisions contained under sub-section (1) or sub-section (2), and if the deposit is not a valid deposit sub-section (6) would not be attracted to the case. For availing the benefit of the legal fiction under sub-section (6) of Section 30 the deposit has to be made 'as aforesaid' i.e. strictly complying with the terms as provided under sub-section (1) or sub-section (2), and subject to the existence of the preconditions therein. In terms of the law laid down in the case of Bengal Immunity Co. Ltd. v. State of Bihar,32, a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field.
36. Taking notice of the scheme, structure and the legislative policy discernible from the provisions of the Act, and in particular referring to the provisions under Section 30 of the U.P. Act No. 13 of 1972, in the case of Kameshwar Singh Srivastava Vs. IV Additional District Judge, Lucknow and others,33 it was held as follows :-
"7.....Primarily a tenant is under a legal obligation to pay rent to the landlord as and when due and if he fails to pay the same on demand from the landlord and if he is in arrears for a period of more than four months he would be liable to ejectment. Where there is a bona fide dispute regarding the landlord's right to receive rent on account of there being several claimants or if the landlord refuses to accept the rent without there being any justification for the same, the tenant would be entitled to take proceedings under Section 30 of the Act and deposit the rent in court thereupon he would be deemed to have paid the rent to the landlord, consequently he would be relieved of his liability of eviction. It does not however follow that the tenant is entitled to disregard the landlord or ignore his demand for payment of rent to him. The provisions of the Act safeguard tenant's interest but it must be kept in mind that the landlord's right to receive rent and in the event of the tenant's being in arrears of rent for a period of more than four months, his right to evict the tenant is preserved. If the tenant makes the deposit in court without there being any justification for the same or if he refuses to pay the rent even on the service of notice of demand by the landlord, he would be liable to eviction........"
37. It would also be apposite to refer to the observations made in the case of Kannan and another Vs. Tamil Tahlir Kalvi Kazhagam34, in the context of a similar provision under Section 9 (3) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, whereunder in case of any bonafide doubt or dispute having arisen as to the person entitled to receive the rent of any building the tenant was given the option to deposit the rent before the authority concerned, and it was held as follows :-
"7. Under sub-section (3) where any bona fide doubt in the mind of the tenant or dispute about a landlord arises as to the person who is entitled to receive the rent, to save the tenant of the consequences of default, a tenant is permitted to deposit the rent in such manner as prescribed through an application before the Controller........".
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12. This refers to regulate the letting of building and control of rents and prevention of unreasonable eviction of tenants. This primarily confers benefit on the tenants. This is to protect any tenant from the exploitation of landlords. However, this Act also ensures that the landlord regularly receives the rent due to him and in case any tenant defaults under the Act he renders himself liable for eviction. It ensures that if any rent payable to the landlord is not paid without any reasonable cause or on mere pretext to whom to pay the rent, is not paid, such tenant is evicted from the premises in question. So the Act balances the interest of both, the tenant and the landlord. That is why the tender of rent under sub-section (3) is only when there is a bona fide doubt as to whom the rent is payable. Whether there is or there is no bona fide doubt or dispute, the Controller can adjudicate in case a tenant approaches. In case, there is no bona fide doubt or dispute or the Controller does not reach such conclusion, he cannot get protection under the Act."
38. It has been consistently held that the benefits conferred on the tenants under the rent legislation can be availed only on the basis of strict compliance with the statutory provisions and equitable considerations have no place in such matters.
39. Reference may be had to a recent judgment of this Court in the case of Sunil Kumar Vs. Shri Kapoor Chandra Agarwal Dharamshala Trust35, wherein it was held as follows :-
"The rent legislation has normally been construed for the benefit of the tenant, and if a tenant wishes to take advantage of the beneficial provisions under the rent control statute he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed that condition must be strictly complied with failing which the advantage of the benefit being conferred by such a provision cannot be availed. A beneficial statute has to be construed in a manner so as to fructify the legislative intent. Although a beneficial legislation does receive a liberal interpretation, the courts would try to remain within the scheme and not extend the benefit beyond the terms thereof. It may also be true that once the provision envisages conferment of benefit subject to fulfillment of certain conditions, their non-compliance would normally have the effect of nullifying the benefit. The reserve of discretion vested in the court entitling it not to strike off a defence under Order XV Rule 5 C.P.C. may thus be exercised in a case where it finds good reason for not doing so on the basis of the facts and circumstances existing on record and equitable considerations would usually have no place in such matters."
40. In the context of a similar provision, under the Delhi Rent Control Act, 1958, in terms of which the tenant was entitled to deposit rent in a case of a bonafide doubt as to the person to whom rent was payable, in the case of Atma Ram Vs. Shakuntala Rani7, the need for strict complaince was emphasized and it was held that in a case where the tenant did not comply with the provision, he must be held to be in default. The relevant observations made in the judgment are as follows :-
"19. 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.
20. Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorised agent a written receipt for the amount paid to him, signed by the landlord or his authorised agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads as under:
"27. Deposit of rent by the tenant.-- (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner:
Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order.
(2) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely -
(a) the premises for which the rent is deposited with a description sufficient for identifying the premises;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;
(d) the reasons and circumstances for which the application for depositing the rent is made;
(e) such other particulars as may be prescribed.
(3) On such deposit of the rent being made, the Controller shall send in the prescribed manner a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of the deposit.
(4) If an application is made for the withdrawal of any deposit of rent, the Controller shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him in the manner prescribed:"
21. 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."
41. In the case of E.Palanisamy Vs. Palanisamy36, while considering similar provisions under the T.N.Buildings (Lease and Rent Control) Act, 1960 it was held that benefits conferred by statutory provisions under a rent legislation could be enjoyed only if such provisions are strictly complied with and procedure prescribed is followed step by step. It was emphasized that the earlier step is a precondition which must be fulfilled before the next step could be taken and that equitable considerations have no place in such matters where strict compliance with procedure was necessary, and a plea that since deposit of rent had been made, a lenient view ought to be taken was held not acceptable and the eviction order passed against the tenant on the ground of default was held as not requiring any interference. The relevant observations made in the judgment are as follows :-
"3. The sole question for consideration in these appeals is whether the provisions of Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 are to be strictly complied with by the tenant before he can seek benefit under the said provisions regarding deposit of rent in the court. In this connection, relevant provisions of Section 8 of the Act need to be quoted:
"8. Landlord liable to give receipt for rent or advance.--(1) * * * (2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord:
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within five kilometres of the limits thereof.
Explanation.--It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section.
(3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building.
(4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission.
(5) If the landlord refuses to receive the rent remitted by money order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building."
4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by the landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specifies the name of the bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of the landlord. However, if the landlord does not specify the name of a bank in spite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under sub-section (5) of Section 8 of the Act.
5. Mr Sampath, the learned counsel for the appellant argued that since the appellant tenant had deposited the arrears of rent in court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellant on that ground. According to the learned counsel, the court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the court for permission to deposit the arrears of rent. Since there is a substantial compliance with Section 8 inasmuch as the arrears of rent stand deposited in court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellant by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant.
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8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
42. In similar circumstances, in the context of the provisions contained under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in the case of Kuldeep Singh Vs. Ganpat Lal37, it was held as follows :-
"8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See: Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603 : AIR 1955 SC 661 : (1955) 6 STC 446] (SCR at p. 646)]. The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs 3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months".
43. Again in the case of M.Bhaskar Vs. Venkatarama Naidu38, with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, while upholding the decree for eviction it was observed that there is an obligation on the tenant to pay the rent regularly. The relevant observations are as follows :-
"4...........If he does not do so, he commits wilful default. If he finds that the landlord is evading the payment of rent, procedure has been prescribed under Section 8 of the Act to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file an application before the Rent Controller for permission to deposit the rent. The appellant did not avail of that remedy. The omission to avail of the procedure under Section 11 does not disentitle the landlord to seek eviction for wilful default."
44. From the aforementioned discussion the position which emerges is that the purpose of sub-section (2) of Section 30 is to afford protection to a tenant who desires to make payment of rent due from him but is in difficulty because of a bonafide doubt or dispute which had arisen as to the person who is entitled to receive rent in respect of the building. It is in such a situation that the tenant has been granted protection against all rightful claimants if he makes deposit in Court instead of paying rent to the person whose entitlement is in doubt and dispute.
45. The invocation of sub-section (2) of Section 30 for making deposit of rent in Court can however be made only in such a situation where the necessary preconditions exist, and it is for this reason that it has been made obligatory on the tenant making deposit under sub-section (2) to state the circumstances under which such deposit is made. The language of sub-section (2) of Section 30 clearly lays down that the tenant while depositing the rent is required to state the circumstances under which such deposit is made. It therefore follows that in the absence of any such narration of circumstances, in the application under sub-section (2), the deposit made would be liable to be rejected.
46. The existence of the jurisdictional facts with regard to the existence of a bonafide doubt or dispute as a necessary precondition so as to entitle the tenant to resort to deposit under sub-section (2) of Section 30 is further reinforced from the language of the statutory provision itself which provides that the tenant can continue to deposit the rent until the doubt or dispute has been settled by the decision of any competent court or by settlement between the parties.
47. It may be reiterated 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.
48. The aforementioned interpretation may also be inferred from the objects of the U.P. Act No. 13 of 1972, which in terms of its preamble has been enacted in the interest of general public, for the regulation of letting and rent, and the eviction of tenants from certain classes of buildings situate in urban areas, and for matters connected therewith. The scheme of the Act being thus aimed at regulating the conditions of tenancy, rent and eviction of tenants with care being taken to make provisions protecting the interest of a tenant from eviction while placing obligation on him to pay rent, the provisions contained under Section 30 may also be read in furtherance of the legislative policy to safeguard the interest of a tenant who deposits rent in accordance with the said provisions.
49. In the facts of the present case, the revisionist-tenant having admitted to have been served with a notice dated 18.3.2016 by the erstwhile owner Smt. Saroj Gupta containing a recital to the effect that she had sold a portion of the house bearing House No. C.K 48/178, Hadaha Varanasi, on 16.3.2015 to Saurabh Singh and others, and that she had received the rent inclusive of taxes upto the month of February, 2015 from the revisionist tenant in respect of the premises in question, and further that after execution of the sale deed she was no longer entitled to receive rent for the aforesaid tenanted portion and that the rent henceforth be paid to Saurabh Singh and others leads to the inescapable conclusion that there was no doubt or dispute as to the person who was entitled to receive rent in respect of the building in question and clearly the necessary jurisdictional facts for invocation of the provisions of sub-section (2) of Section 30 in terms of which the revisionist-tenant could claim benefit of deposit of rent in Court, did not exist.
50. The provisions contained under Order XV Rule 5 C.P.C., have been consistently held to be mandatory, and it has been held that the benefits conferred on tenants under the rent control legislation can be enjoyed only on the basis of strict compliance of the statutory provisions. There is no provision to claim exemption from complying with the conditions under Order XV Rule 5 C.P.C. apart from consideration of a representation made by the defendant as per Order 15 Rule 5 (2) C.P.C.
51. It may be noticed that Explanation 2 to Order XV Rule 5 (1) C.P.C. stipulates deduction of the amount deposited under Section 30 of the U.P. Act No. 13 of 1972 in respect of the amount to be deposited at or before the first date of hearing. The benefit of such deduction of the amount if any deposited under Section 30, however, has not been provided in respect of the monthly amount to be deposited through out the continuation of the suit.
52. The aforementioned legal position has been authoritatively considered by a Larger Bench of this Court in Haider Abbas (supra) and it is thus clear that the benefit of deposit under Section 30 cannot be claimed in respect of the monthly amount which is required to be deposited through out the continuation of the suit and in the absence of compliance of which the necessary consquences are to follow.
53. It has been consistently held that the tenant is required to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein, and any deposit not made in consonance with the said rule cannot enure the benefit of the tenant. Also, the amount to be deposited by the tenant during the continuation of the suit is required to be deposited in the court where the suit is filed failing which the court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 after the first hearing of the suit cannot be taken into consideration.
54. The provisions under Order XV Rule 5(2) provides a locus poenitentiae to the defaulting tenant to make a representation, which must be made within ten days of the first hearing or within a week from the date of accrual of rent as the case may be, and if the representation is not made within the specified time the court has no jurisdiction to consider a time barred representation or condone the delay or extend time. Apart from the aforementioned provision of filing a representation there is no provision wherein exemption can be claimed from complying the conditions under Order XV Rule 5.
55. The judgments in the case of Dr. Ram Prakash Mishra (since deceased) Vs. IVth Additional District Judge, Etah and another1, Habiburahaman Vs. District Judge, Jhansi and others2, and Sanjay Agrawal Vs. Ganga Prasad Agrawal and another3, upon which reliance has been sought to be placed by the revisionist are to the effect that if there is sufficient material on record to indicate that there are good reasons for condoning the default the Court has a reserve power to reject the application for striking off the defence. There can be no quarrel with the aforementioned legal proposition that powers under Order XV Rule 5 are not to be exercised in the case of a mere technical default.
56. The present case, however, is not a case where the revisionist is claiming condonation of the default in making complaince with the statutory provisions. It is a case where the revisionist claims exemption from complying with the mandatory provisions as contained under Order XV Rule 5 C.P.C., and in the absence of any provision whereunder exemption can be claimed from complying with the conditions under Order XV Rule 5 C.P.C. apart from consideration of a representation in terms of Rule 5 (2) thereof the claim of the revisionist is clearly unsustainable.
57. Counsel for the revisionist has also not been able to point out any provision or authority in terms of which exemption could have been claimed for compliance of the provisions contained under Order XV Rule 5 C.P.C.
58. The scope of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short 'the Act, 1887') fell for consideration in a recent judgment of the Supreme Court in the case of Trilok Singh Chauhan V. Ram Lal & Ors.39, wherein referring to the earlier judgments in the case of Hari Shankar Vs. Rao Girdhari Lal Chowdhury,40, Bell & Co. Ltd. Vs. Waman Hemraj41 and Mundri Lal Vs. Sushhila Rani42, it was held as follows:-
"15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698], in paras 9 and 10, this Court laid down the following: (AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223], where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4) "3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law.
4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence.
10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption."
16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [(2007) 8 SCC 609]. This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence."
59. Learned counsel for the revisionist has not been able to dispute the aforementioned proposition of law nor has been able to point out any material error or illegality in the orders passed by the court below so as to warrant interference by this Court under Section 25 of Provincial Small Causes Courts Act,1887.
60. The S.C.C. Revision lacks merit and it is accordingly dismissed.
Order Date :- 10.07.2019 Pratima (Dr.Y.K.Srivastava,J.)