Allahabad High Court
Shailendra Sharma And Another vs Dr. Amit Bansal on 3 April, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment reserved on 04.01.2017
Judgment delivered on 03.04.2017
Case :- S.C.C. REVISION No. - 109 of 2016
Revisionist :- Shailendra Sharma And Another
Opposite Party :- Dr. Amit Bansal
Counsel for Revisionist :- Prem Chand Jain
Counsel for Opposite Party :- Pramod Jain
Connected with
Case :- S.C.C. REVISION No. - 441 of 2016
Revisionist :- Sri Shailendra Sharma And Anr.
Opposite Party :- Dr. Amit Bansal
Counsel for Revisionist :- P.C. Jain
Counsel for Opposite Party :- Pramod Jain
Hon'ble Manoj Misra, J.
1. Both these revisions have been filed by the defendants of S.C.C. Suit No. 5 of 2012 (herein after referred to as the suit). The suit was instituted by Dr. Amit Bansal (plaintiff-respondent) against Sri Shailendra Sharma and Sri Satish Paliwal (defendant-revisionists). As both the revisions arise out of the said suit and are between same set of parties, with the consent of learned counsel for the parties they were heard together and are being decided by a common judgment.
2. The suit was instituted by plaintiff-respondent against the defendant - revisionists for eviction of the defendants from an accommodation bearing No. 3/19-A/1, situated at Sitakunj, Nagla Padi, behind Civil Courts compound, Hari Parvat, Agra comprising one big hall (26' x 42') on lower ground floor; one room (10' x 12') adjacent to old pucca well on lower ground floor; one room (10' x 14') over it on upper ground floor; and four rooms with open space on upper ground floor. Apart from ejectment decree, money decree of Rs. 5,05,800/- along with future and pendente lite interest @ 18% per annum as well as mesne profits, damages for use and occupation at the rate of Rs. 40,000/- per month besides taxes from the date of institution of the suit, till the date of recovery of vacant possession from the defendants to the plaintiffs along with costs of the suit was sought.
3. The plaint case was that the defendants were inducted as tenants in the accommodation dispute, which was newly constructed on 01.10.1992, on a monthly rent of Rs. 3,000/- besides taxes; that with effect from 01.04.2000, rent was enhanced and paid by the defendants up to 31.03.2006 at the rate of Rs. 4,000/- per month and, thereafter, with effect from 01.04.2006 up to 31.03.2008 rent was enhanced and paid at the rate of Rs. 7,100/- per month; and, thereafter, with effect from 01.04.2008 up to 31.03.2009 rent was enhanced and paid at the rate of Rs 15,000/- per month. It was pleaded that the plaintiff had always issued proper rent receipt to the defendants and the defendants had signed on the counter foil of the receipt book. It was claimed that initially the property was owned by mother of the plaintiff who died on 06.08.2008, where after the plaintiff, being her only son, became the owner and landlord of the said property. It was claimed that the defendant did not pay rent with effect from 01.04.2009 in spite of repeated demand and requests by the plaintiff therefore the plaintiff, through Sri Ashok Kumar Gupta, Advocate, sent a registered notice dated 05.03.2011 thereby demanding the arrears of rent and taxes with 18% per annum interest as well as costs of Rs. 2300/- and by the said notice, the tenancy was also terminated by giving one month's time to the defendant to handover peaceful and vacant possession of the property but, in spite of service of notice, the defendants did not vacate the premises and instead gave an incorrect reply through Sri B.D. Padalia, Advocate. It was claimed that the market rental value of the accommodation was not less than Rs. 40,000/- per month; and that the provisions of U.P. Act No. 13 of 1972 were not applicable because firstly the rent was higher than Rs.2000/- p.m. and secondly the building came to be first assessed on 30.09.1992.
4. The defendants filed a written statement claiming that the monthly rent of the accommodation in dispute was Rs. 1800 per month whereas Rs. 4300 per month was payable towards maintenance charges. It was claimed that the defendants used to pay Rs. 6100/- in total on a monthly basis but never any rent receipt was issued. It was claimed that they had never signed on the counter foil of the receipt book as alleged by the plaintiff and the rent had never been enhanced as was alleged. It was further claimed that the defendants were not in arrears and, in fact, rent up to April, 2010 stood paid. It was also stated that the plaintiff took from the defendants account payee cheques towards payment of monthly charges with effect from 01.05.2010 but did not present the said cheques for encashment. The receipt of tenancy termination notice dated 05.03.2011 was admitted but it was stated that it gave incorrect facts and was correctly replied. It was claimed that U.P. Act No. 13 of 1972 was applicable on the building because the rent payable was only Rs.1800/- p.m. and the building was old construction of the year 1981.
5. A perusal of the record reflects that the suit, after filing of written statement by the defendants, proceeded and statement of plaintiff (P.W.1) as well as defendant no.1 (D.W.1) was recorded and they were both subjected to cross- examination. A large number of documents including rent agreements, counter foils of the rent receipt book, tenancy termination notice, etc were filed by the plaintiff in support of his case. The defendants had produced an expert report to disclose that the signature on the counter foil of the rent receipt was not of the defendants. But before the statement of expert could be recorded, an application was moved by the plaintiff on 10.11.2014 to strike off the defence of the defendants, under Order 15 Rule 5 C.P.C., on account of non deposit of admitted monthly rent during the pendency of the suit with effect from 01.10.2012. The said application was moved by the plaintiff because, initially, a deposit of Rs.2,00,000/- was made, vide challan dated 18.09.2012, towards rent for the period 01.05.2010 to 30.09.2012 but, thereafter, no monthly deposit of admitted rent was made. Upon filing of application under Order 15 Rule 5 CPC to strike off defence, vide challan dated 20.11.2014, Rs.48,600/- was deposited towards rent for the period October 2012 to December 2014 and, thereafter, vide challan dated 21.04.2015, Rs.10,800/- was deposited towards rent for the period January 2015 to June 2015. Thereafter, on 21.05.2015, a reply to the application to strike off defence was filed by the defendants claiming that rent up to June, 2015 stands deposited and that a total of Rs.2,59,400/- has been deposited. In the reply, no representation to condone the delay in making monthly deposit was made. The reply also did not disclose any mode of computation or calculation to demonstrate as to how the entire rent including monthly admitted rent, liable to be deposited under Order 15 rule 5 CPC, up to June, 2015, had been deposited.
6. The court below by its order dated 29.05.2015 struck off the defence of the defendants upon finding that on 08.09.2012 (should be read as 18.09.2012), the defendants had deposited a lump sum amount of Rs. 2 lacs towards rent payable from 01.05.2010 to 30.09.2012; thereafter, on 20.11.2014 they deposited Rs. 48,600/- towards rent payable from October, 2012 to December, 2014; and thereafter on 21.04.2015 they deposited Rs. 10,800/- towards rent payable for the period January, 2015 to June, 2015, accordingly, there was no timely monthly deposit during the course of the suit, therefore, in absence of any representation to condone the delay in making such deposits, the defence was liable to be struck off.
7. The order striking off defence dated 29.05.2015, has been challenged in S.C.C. Revision No. 441 of 2016, which was initially filed as a defective revision but later got a regular number. During the pendency of the said revision, the trial court proceeded to decide and decree the suit by judgment and decree dated 11.02.2016 passed by Additional District Judge, Court No.7, Agra. Against the judgment and decree passed in S.C.C. Suit No. 5 of 2012, S.C.C. Revision No.109 of 2016 has been filed.
8. A perusal of the final judgment of the court below would reveal that as many as five points were framed for determination, which were as follows: (a) whether there was any landlord-tenant relationship between plaintiff and the defendants; (b) whether the rate of rent was Rs. 1500 per month; (c) whether U.P. Act No. 13 of 1972 was applicable; (d) whether notice dated 05.03.2011 terminating tenancy was valid and whether the tenancy was duly terminated; and (e) as to what relief the plaintiff was entitled to.
9. On the question of landlord-tenant relationship between the plaintiff and the defendant, as there was no serious dispute, finding was returned in favour of the landlord. On the issue of rate of rent, the court below took into consideration, apart from oral evidence, various documentary evidences such as written agreements and counter foil of rent receipts signed by the defendants to come to the conclusion that the rate of rent was Rs.15,000/- per month. The court also found that neither from the agreement nor from the counter foil of the rent receipt, it appeared that rent was payable at the rate of Rs. 1800/- per month or that maintenance charges were payable separately at the rate of Rs. 4300/- per month as claimed by the defendants. After returning the finding as above, the court came to the conclusion that as the rate of rent was found higher than Rs. 2000/- per month, the U.P. Act No. 13 of 1972 was not applicable to the premises in dispute. It also found that the notice terminating tenancy was duly served and it did terminate the tenancy. Accordingly the suit was decreed.
10. I have heard Sri P.C. Jain for the defendant-revisionists; and Sri Pramod Jain for the plaintiff-respondent.
11. Sri P.C. Jain, learned counsel for the revisionists, very fairly, at outset, stated that the decree passed by court below could be successfully assailed only if the revisionists succeed in establishing that the court below had erred in striking off the defence. Accordingly, arguments have been advanced only in S.C.C. Revision No.441 of 2016 which assails the order striking off defence.
12. It has been submitted by him that had the defence not been struck off, the defendant would have led expert evidence to substantiate that the alleged signatures of the defendants on the counter foil of the rent receipts as well as the agreements, which were produced by the plaintiff in support of his case to disclose that the rate of rent was Rs.15,000/- per month, were bogus. It is thus the case of the revisionists that the order striking off defence has materially affected the decision in the suit.
13. The correctness of the order striking off defence has been assailed on the following grounds:
(a) That under Order 15 Rule 5 C.P.C., the defendant at or before the first hearing of the suit, is only required to deposit the entire rental amount admitted by him to be due together with interest thereon at the rate of 9% per annum and thereafter has to regularly deposit the monthly rental amount to be due within a week from the date of its accrual, throughout the continuation of the suit. It was submitted that according to the defendants the admitted rate of rent was Rs. 1800/- per month whereas Rs. 4300/- per month was payable towards maintenance charges therefore, since, on 18.09.2012, that is the first date of hearing, the amount deposited was Rs. 2 lacs towards rent for 27 months, the same was far in excess of the amount required to be deposited towards rent, which ought to have been adjusted against any future shortfall in deposits required to be made on monthly basis during the course of the suit proceeding. It was submitted that the deposit made on 18.09.2012 was sufficient enough to cover the liability of the revisionists to deposit admitted monthly rent @ Rs.1800/- p.m. for the entire period of the suit. It has been submitted that since this aspect of the matter has not been considered the order striking off defence stood vitiated.
(b) That it is not necessary to make a representation for condoning the delay in making deposit, particularly, where, from the record, the court can satisfy itself that there is no default or that the amount already deposited was in excess of what was required to be deposited. Therefore the view of the court below that no representation was made for condoning the delay in making deposit of admitted monthly rent the defence was liable to be struck off, is unsustainable.
(c) That striking off defence is not mandatory and the court has discretion not to strike off defence in a given set of facts. It has been submitted that since the suit had proceeded to the final stages and was at the stage of recording defence evidence and, in fact, the statement of D.W.1 had already been recorded, there was no justification to strike off defence at such an advanced stage of the proceeding.
14. Sri P.C. Jain to support his submissions, placed reliance on decision of the Apex Court in Bimal Chand Jain v. Gopal Agarwal : (1981) 3 SCC 486 to contend that the court has discretion to strike off defence and that the court is not under an obligation to strike off defence, the moment it finds that there is default in making of deposit, as mandated by Order 15 Rule 5 C.P.C. On the same proposition, another decision of the apex court in M/s. Mangat Singh Trilochan Singh and others v. Satpal : 2003 (8) SCC 357 has also been cited.
15. Reliance was also placed on a decision of this Court in Mahboob alias Chhalla v. Mohd. Hussain and others : 1983 (1) ARC 651 to contend that the court should decide question of striking off defence as a preliminary issue before allowing the parties to adduce evidence on the merits of the case and where the court has allowed the parties to adduce evidence on merits of the case, then the court should decide the case on merits after considering evidence of both parties. On similar proposition, another decision of this court in the case of Kedar Nath v. Waqf Sheikh Abdullah Charitable Madarsa, 2016 (117) ALR 137 has been cited to contend that power to strike off defence is not to provide a lever to the landlord to get a tenant punished for insignificant lapses or on account of small insignificant lapses such as intermittent delays in making subsequent deposits.
16. A decision of this Court in Kishori Lal v. Special Judge, Varanasi : 2007 (3) ARC 214 has also been relied upon to contend that where the tenant has already paid amount in excess and that amount is lying in deposit in the court, then even if no representation is filed by the tenant, the court can take into account the amount already deposited before coming to a decision whether the defence of the defendant deserves to be struck off or not.
17. Another decision of this Court in Atma Ram v. District Judge, Dehradun : 1999 (1) A.R.C. 271 has been cited to contend that where no such representation as contemplated by sub-rule (2) of Order 15 of Rule 5 C.P.C. is made by the tenant, the court is under a judicial duty to scrutinize and examine the material either brought on record in response to the plaintiff's application for striking off the defence or already existing on record and thereafter to consider and weigh the facts and circumstances of the case appearing in the case before taking a decision in that regard.
18. Reliance was also placed on a decision of the apex court in the case of Mam Chand Pal v. Shanti Agarwal, (2002) 3 SCC 49, where it was held that for obtaining benefit of sub-section (4) of Section 20, which requires deposit of arrears of rent, damages for use and occupation, interest, costs of litigation, etc. but not amount such as electricity charges, a sum deposited towards electricity charges could be adjustable against the short fall in the amount required to be deposited towards fees of the lawyer. It has been contended that on similar logic, the amount deposited by the revisionist towards maintenance charges ought to have been adjusted towards short fall in making monthly deposits during the pendency of the suit.
19. On the strength of the aforesaid authorities, the learned counsel for the revisionists submitted that while passing the order striking off defence, the court below has not properly considered that already excess deposit was made by the revisionists as against the admitted rent due; and that the case was at a stage where parties had led their evidence, therefore, there was no occasion to strike off defence at that stage. It has been submitted that on account of striking off defence, the revisionists could not lead expert evidence to rebut the signatures on the counter foil of the rent receipts produced by the plaintiff and their defence has not been considered therefore the judgment and decree passed by the court below is liable to be set aside.
20. Per contra, Sri Pramod Jain, learned counsel for the plaintiff-landlord, has submitted that defence can be struck off at any stage of the proceeding because not only at the first date of hearing the amount due is required to be deposited but the monthly amount due is required to be deposited throughout the continuation of the suit on a monthly basis within a week from the date of its accrual, and in the event of default in making deposit, the court may strike off defence. Accordingly the defence can be struck off at any stage of the suit, even after leading of evidence. He submitted that in the instant case, admittedly, the monthly amount due was not deposited within the time provided and as there was no explanation/ representation to condone the delay, the order striking off defence cannot be faulted and since the court below has passed the judgment and decree after considering the plaintiff's evidence, which was tested by cross-examination, the finding returned by the court below on various issues which is based on appreciation of evidence and is not perverse, cannot be interfered with in exercise of revisional powers. On the question of adjustment of deposit of Rs. 2 lacs, made on 18.09.2012, against liability to deposit monthly dues payable throughout the continuation of suit, it was contended that according to the own case of the defendants the deposit of Rs.2 lacs, made on 18.09.2012, was in respect of amount payable and due for the period starting from 01.05.2010 up to 30.09.2012, that is for 27 months, therefore the contention that there was excess deposit made, which could have been adjusted against short fall in subsequent monthly deposits, is misconceived. In the alternative, it was submitted that unless there had been a representation by the defendants that the deposit which they had made on 18.09.2012 was to be adjusted towards future rent payable at the admitted rate of rent of Rs. 1800/- per month, the court, on its own, could not have adjusted the deposit towards liability to make monthly deposits for use and occupation of the premises. It has been submitted by him that as the defendants admit that Rs. 4300/- per month was payable towards the maintenance charges in addition to Rs.1800/- per month payable towards rent, the entire amount of Rs.6100/- became payable for use and occupation of the premises on a monthly basis throughout the pendency of suit. Therefore, the deposit of Rs. 2 lacs even if it includes maintenance charges as claimed cannot be adjusted against liability to make monthly deposits. It has thus been submitted that seen from any angle, the defendants had been a defaulter in depositing the monthly amount due during the pendency of the suit and as there was no representation to condone the delay, the court below was well within its powers to strike off defence as has been done by the order dated 29.05.2015.
21. In support of his submissions, Sri Pramod Jain placed reliance on following decisions: (a) 2012 (94) ALR 71: Dr. Smt. Rajni Mishra V. Kanta Prasad Agrawal; (b) 2012 (92) ALR 526: Yusuful Haq v. Ghayyur Fatma; 2014 (1) ADJ 665: Sunahari Lal v. Smt. Premwati; 2005 (3) ARC 146: Atma Ram V. Shakuntala Rani; and (2015) 6 SCC 526: Yusufbhai Noormohammad Jodhpurwala V. Mohmmed Sabir Ibrahim Byavarwala.
22. I have given thoughtful consideration to the submissions of the learned counsel for the parties and have carefully perused the record and the authorities cited by the respective counsels.
23. Before dealing with the respective submissions of the learned counsel for the parties it would be apposite to notice the provisions of Order 15 Rule 5 CPC as well as the interpretation accorded to it in various judicial pronouncements. Order 15 Rule 5 as amended in Uttar Pradesh reads as follows:
"(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 centum 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 or 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, 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 deductions 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 security for such sum before he is allowed to withdraw the same."
24. In Bimal Chand Jain v. Gopal Agarwal, (1981) 3 SCC 486, a three judges bench of the apex court had the occasion to interpret the provisions of Order 15 Rule 5 CPC as applicable in UP. In paragraph 6 of the judgment, as reported, the apex court observed as follows:
"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."
25. The apex court in Satya Kumari Kamthan v. Noor Ahmad, (2013) 9 SCC 177, dealt with the question as to what could be considered a representation within the meaning of sub rule (2) of Rule 5 of Order 15 CPC. In that case the defendant had pleaded in his objection to the application filed by the plaintiff for striking off defence that there was no default in complying with the provisions of Order 15 Rule 5. The trial court found otherwise and, in absence of there being any representation by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons, struck off the defence. Upholding striking off defence of the defendant, the apex court in paragraphs 8 and 9 of the judgment, as reported, observed as follows:
"8. ........We may point out that in the case on hand when the appellant filed an application for striking off, the tenant filed a written statement objecting to the striking off on the ground that there was no default in payment of the monthly rent as provided under Rule 5(1) of Order 15. The courts below did not accept this contention and found as a fact that there was a default in payment of the admitted rent. The courts below further held that though there was a default there is no "representation" by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons and that, therefore, the plaintiff was entitled to get the defence struck off.
9. The word "representation" may cover a "representation" in answer to an application for striking off or a "representation" praying for an extension of time for making the deposit on sufficient grounds shown. The tenant in this case only made representation that he had deposited the correct money but he had not filed any application for extension of time. In the circumstances, therefore, the courts below were right in holding that there was a default in payment of the monthly rent and since there was also no application for extension of time under sub-rule (2) of Rule 5 of Order 15 the defence was liable to be struck off."
26. A division bench of this court in Bal Krishna v. Ramanand Dixit, (1996) 28 ALR 406, had the occasion to decide a question as to whether under Order 15 Rule 5 CPC, the court could strike out defence after closure of plaintiff's evidence. After examining the provisions of Order 15 Rule 5 CPC, the division bench held that Rule 5 had two limbs. The first limb was in respect of defendant's / tenant's liability to deposit admitted arrears on or before the first hearing of the suit together with interest thereon at the rate of nine per centum per annum. And the second limb was in respect of liability to deposit monthly amount due, within a week from the date of its accrual, throughout the continuation of the suit. It would be apposite to reproduce the relevant portion of the division bench judgment, which is as under:
"16. Therefore, as far as second limb of sub-section (1) of Rule 5 of Order XV of the Code is concerned, the settled legal position is this that 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/tenant 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 monthly amount due the Court may strike of his defence of course after considering representation if any made by the defendant/tenant in that behalf within 10 days of the expiry of the period of a week from the date of its accrual. Order XV Rule 5 of the Code, nowhere refers about the closure of the evidence of the plaintiff. Hence in our considered opinion closure of the evidence of the plaintiff has nothing to do with the statutory liability of the defendant/tenant to regularly deposit the monthly amount due throughout the continuation of the suit within a week from the date of its accrual and in the event of any default in making such deposit the Court may strike off his defence irrespective of the fact whether the plaintiff has closed its evidence or not. The only safeguard provided in this regard is that before making the order to strike off the defence, the Court may consider the representation of defendant/tenant if made within 10 days of the expiry of the week referred to in sub-section (1) of Rule 5 of Order XV of the Code."
27. Following the division bench decision of this court in Bal Krishan's case (supra), in Atma Ram v. District Judge, Dehradun, 1999 (1) ARC 271, a single judge of this court held that that the words "throughout the continuation of the suit" used in sub rule (1) of Rule 5 of Order 15 CPC were of significance which suggest that the power to strike off the defence is not confined to the stage before the evidence is led or adduced by the parties. The court held that the power conferred on the court is exercisable till the suit continues to remain pending before it. In Atma Ram's case (supra) it has also been held that where no such representation, as contemplated by sub-rule (2) of Order 15 of Rule 5 C.P.C., is made by the tenant the court is not bound to strike off the defence and the court is under a judicial duty to scrutinize and examine the material either brought on record in response to the plaintiff's application for striking off the defence or as already existing on record and also to consider and weigh the facts and circumstances appearing in the case.
28. In Kishori Lal v. Special Judge, Varanasi : 2007 (3) ARC 214, this court held that where the tenant has already paid amount in excess and that amount is lying in deposit in the court, then even if no representation is filed by the tenant, the court can always examine the amount so deposited by the tenant while considering whether the defence of the defendant is liable to be struck off or not.
29. From the decisions noticed herein above as also on a careful perusal of the provisions of Order 15 Rule 5 CPC, the legal principles which emerge, and ought to be applied while examining as to whether the defence of a tenant ought to be struck off or not on account of default in making deposit, are as follows:
(a) The power to strike off defence vests in a court on default of the defendant either in depositing the admitted amount due with prescribed interest on the first date of hearing of the suit or in making timely monthly deposit throughout the continuance of the suit. The power to strike off defence can be exercised at any stage of the suit, upon failure to make timely monthly deposit, irrespective of whether the parties have led their evidence or not. Though the stage at which the suit stands may be a relevant consideration whether to exercise the discretionary power to strike off defence or not.
(b) The power to strike off defence is not to be exercised by treating it to be a statutory mandate. Since the exercise of power inflicts severe penal consequences, the court has discretion not to strike off the defence if on the facts it finds good reason for not doing so. Therefore, the power should be exercised after consideration of the facts and circumstances appearing on the record and, in the event of there being a representation, after considering the representation.
(c) The representation must not necessarily be a separate representation seeking condonation of the delay in making deposit, but it may be by way of a reply to an application moved by the plaintiff for striking off defence.
(d) Before striking off defence, the court has to examine the record to find out whether any excess amount has already been deposited or not and if so, then whether upon adjustment of the said amount there would still be a shortfall in deposit of the amount required to be deposited under the said provision.
30. Applying the aforesaid legal principles, the contention of the learned counsel for the revisionist that the defence could not have been struck down because the evidence had been led, cannot be accepted. Single judge bench decision in the case of Mahboob alias Chhalla (supra) cited by the learned counsel for the revisionist can no longer be held to be good law in view of division bench decision of this court in Bal Krishna's case (supra) which has been followed in Atma Ram v. District Judge, Dehradun (supra).
31. Now, what is to be seen is whether on the first hearing of the suit, the revisionists had deposited amount in excess to what was required to be deposited by him under Order 15 Rule 5 and if it is so, then, whether the said excess amount ought to have been adjusted against the default in making timely monthly deposit during the continuance of the suit.
32. To answer the aforesaid question it would be appropriate to first ascertain as to what is required to be deposited by a defendant under Order 15 Rule 5 CPC on the first date of hearing. Order 15 Rule 5 (1) provides that 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 centum per annum. Explanation 2 of sub rule (1) of Rule 5 of Order 15 CPC provides that 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, deposited in any court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In P.D. Seth v. Krishna Devi, 2006 SCC OnLine All 697 : (2006) 65 ALR 39, Explanation II of sub rule (1) of Rule 5 came for interpretation. In paragraph 16 and 17 of the judgment, this court held as follows:
"16. A plain reading of Explanation II makes it clear that while calculating the gross amount to be deposited under Order XV, Rule 5 (1), a tenant is entitled to make the following deductions only:--
(1) The taxes, if any, paid to a local authority in respect of building on a lessor's account, and (2) the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him.
17. The object of the aforesaid explanation is loud and crystal clear. It puts beyond pale of any doubt permissible deductions, which can be made by a lessee while making a deposit under Order XV, Rule 5, C.P.C. The expression "no other deduction" makes the position clear beyond doubt that except those amounts which are specified to be deducted, tenant cannot claim any other deduction. To put it differently, the Explanation-II has been enacted with a view to make the things clear that except the aforesaid specified deductions, no other deduction/set off/or adjustment is admissible for the purpose of deposits under Order XV, Rule 5, C.P.C."
33. At this stage, it would be apposite to deal with the meaning of the term "rent". In Karnani Properties Ltd. v. Miss Augustine, AIR 1957 SC 309, the apex court while dealing with Bengal Rent Control Act observed that as the term "rent" was not defined by the Act it must be given its ordinary dictionary meaning. It was held that the term rent is comprehensive enough to include all payments agreed to be paid to the landlord for the use and occupation not only of the building and its appurtenances but also of furnishings and other amenities agreed between the parties to be provided by and at the cost of the landlord. Following the above judgment, this Court in P.L. Kureel Talib Mankab, Vidhan Parishad v. Beni Prasad & Another, AIR 1976 Alld. 362 has held that the real test to ascertain whether the amount payable is rent or not is whether the amount paid is the consideration paid by the tenant for being let into possession. The Delhi High Court, following the above two decisions in Sewa International Fashions V. Smt. Suman Kathpalia & others, AIR 2000 Delhi 69, has held that maintenance charges would come within the expression rent. The Explanations II and III of sub rule (1) of Rule 5 of Order 15, which governs the matter at hand, when read conjointly, clearly provide that the amount to be deposited is the gross amount payable either as rent or as compensation for use and occupation of the premises. The explanation further clarifies by specifying as to what amount is deductible from that gross amount, which is nothing other than the tax paid to the local authority on a lessor's account and the amount, if any, paid to the lessor in writing signed by him, and the amount, if any, deposited in any court under section 30 of UP Act No.13 of 1972. Thus, the maintenance charge payable for the period of use and occupation of the premises, the liability of which was not disputed by the defendants, was to be included in the gross amount payable under sub rule (1) of Rule 5 of Order 15 CPC on the first date of hearing. The defendants therefore cannot claim that they had deposited excess amount on the first date of hearing which ought to have been adjusted against future short fall in making monthly deposits during the course of the suit proceeding. The judgment in Mam Chand Pal's case (supra), which allowed adjustment of electricity charges deposited on the date of first hearing against short fall in lawyers fees, would not come to the aid of the revisionists because that related to a deposit for seeking benefit of sub-section (4) of section 20 of the UP Act No.13 of 1972, which is not subject to any such explanation as provided by Explanations II and III of sub rule (1) of Rule 5 of Order 15 CPC which permits of deduction of only taxes paid to a local authority in respect of the building on lessor's account from the gross amount payable either as rent or compensation for use and occupation of the premises.
34. Coming to the facts of the instant case, the defendants admit in their written statement that the gross amount payable by them to the plaintiff for the use and occupation of the premises in dispute is Rs.6100/- p.m. though it is claimed that out of the above amount Rs.1800/- was towards rent and the balance Rs.4300/- was towards maintenance charges. It is neither their case that maintenance charges were not payable on a monthly basis nor it is their case that because of lack of maintenance of suit property no maintenance charge was payable. Further, from a bare perusal of the deposit challan dated 18.09.2012 (at page 48 of the paper book of SCC Revision No.441 of 2016) it is clear that the amount of Rs.2 lacs was shown as the amount deposited towards rent for the period 01.05.2010 to 30.09.2012, which clearly suggest that the defendants have themselves admitted their liability to recompense the plaintiff at the gross rate of Rs.6100/- for use and occupation of the premises. Once that is the position, by bifurcating the gross amount payable for use and occupation of the premises into two parts, calling one part as rent and other part as maintenance charges, the defendants cannot escape from the consequences of not making timely monthly deposits during the pendency of the suit by claiming that they made deposit of excess amount payable under sub rule (1) of Rule 5 of Order 15.
35. Even otherwise, once the defendants make a deposit of a particular amount without disclosing as to under which head the amount deposited by them is to be accounted for and, further, in their written statement, they admit monthly liability at a given rate and the deposit so made is referable to their liability computed at the given rate, then the said deposit would have to be taken as a voluntarily deposit towards the admitted liability up to that date. Therefore, in any event, they cannot subsequently take a stand that they had made a deposit in excess of their liability and as such the same be adjusted against their future liability. More so, when there is no such representation/ clarification furnished at the time of making initial deposit.
36. In view of the reasons stated above, it is held that the revisionists had not made any such excess deposit on the first date of hearing i.e. 18.09.2012, which could have been adjusted against the short fall in making monthly deposits during the pendency of the suit.
37. Coming to the validity of the order striking off defence, it is found that after first deposit, the defendants did not make any monthly deposit for a period of about two years and, in fact, they made a lump sum deposit, at a rate lesser than at which it was earlier made on the first date of hearing, and, that too, after filing of an application by the plaintiff for striking off defence, without filing any representation to seek condonation of delay. Under the circumstances, the order striking off defence cannot be faulted keeping in mind the law laid down by the apex court in Satya Kumari Kamthan's case (supra). This court is therefore of the considered view that the order striking off defence is legally sound and does not suffer from any legal infirmity warranting interference in the revisional jurisdiction. Accordingly, the SCC Revision No.441 of 2016 is liable to be dismissed.
38. In so far as the merits of final judgment and decree passed in the suit is concerned, there is no serious challenge to it in the arguments of the learned counsel for the revisionists except that striking off defence has vitiated the final judgment and decree. Therefore, once this court has found that there is no legal infirmity in the order striking off defence, the final judgment and decree cannot be faulted. More over, a perusal of the final judgment passed by the court below goes to show that the trial court has considered and appreciated the evidence brought on record by the plaintiff, and after recording cogent reasons findings have been returned on various issues. The findings are neither perverse nor have been demonstrated to be so. Except for the argument that findings are vitiated on account of absence of the defence of the revisionists, no other argument was pressed. As this court has already come to the conclusion that there is no legal infirmity in the order striking off defence, there is no merit in SCC Revision No.109 of 2016, which is also liable to be dismissed.
39. In view of the reasons recorded above, both the revisions are dismissed. The revisionists will have one month time to vacate the premises in question. The interim order stands discharged. There shall be no order as to costs.
Order dated: 03.04.2017 Sunil Kr. Tiwari