Allahabad High Court
Shashi Bhushan vs Sri Manohar Lal Singhal on 13 August, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 05 Case :- S.C.C. REVISION No. - 581 of 2014 Revisionist :- Shashi Bhushan Opposite Party :- Sri Manohar Lal Singhal Counsel for Revisionist :- Abu Bakht,Pramod Kumar Jain Counsel for Opposite Party :- Rajiv Joshi,Atul Dayal,Sumit Daga Hon'ble Surya Prakash Kesarwani,J.
"Whether principle of natural justice is necessary to be followed under Order XV Rule 5, C.P.C. for striking off the defence" is the main question involved in the present revision."
1. Heard Sri P.K. Jain, learned senior advocate assisted by Sri Abu Bakht, learned counsel for the defendant-tenant/ revisionist and Sri Atul Dayal, learned senior advocate assisted by Sri Sumit Daga, learned counsel for the plaintiff-landlord/ respondent.
FACTS:
2. It is not in dispute that the defendant/ revisionist is the tenant in a portion of House No.113B/1, Vakil Road, Nai Mandi, Muzaffarnagar, of which the plaintiff-respondent is the owner and landlord. According to the defendant-tenant/ revisionist, the rent was Rs.750/- per month while according to the plaintiff-landlord/ respondent, the rent was Rs.2,500/- per month. The plaintiff-landlord/ respondent filed S.C.C. Suit No.20 of 2011 (Manohar Lal Singhal vs. Shashi Bhushan) in which the defendant-tenant/ revisionist filed written statement on 30.09.2011. He also filed an Application 22ga under Order XV Rule 5 C.P.C. for adjustment of rent deposited in Misc. Case No.133 of 2009, upto the period of June, 2011 @ Rs.750/- per month under Section 30 of U.P. Act 13 of 1972 and submitted tender form for depositing the balance amount of rent and interest. The application of the defendant-tenant/ revisionist was allowed by the court and the amount was deposited on 10.10.2011. Thereafter, parties led their evidences. It appears that at the time of final argument, the plaintiff-landlord/ respondent made submission that the amount deposited in Misc. Case No.133 of 2009 under Section 30 of U.P. Act 13 of 1972, could not be adjusted since that case was dismissed for non-prosecution on 19.03.2010 which was, however, restored on 29.01.2012. The court below proceeded a step ahead and passed the impugned judgment dated 11.11.2014, whereby the suit was decreed. In the impugned judgment, the court below suo motu framed an issue of non-compliance of the provisions of Order XV Rule 5, C.P.C. by the defendant-tenant/ revisionist and decided it against the defendant-tenant/ revisionist without affording him any opportunity of hearing. It is also relevant to note that no application was ever filed by the plaintiff-landlord/ respondent for striking off the defence of the defendant-tenant/ revisionist. The defence was struck off in the manner as aforesaid and without affording any opportunity of hearing to the defendant-tenant/ revisionist, the suit was decreed by the impugned judgment without consideration to the evidences led by the defendant-tenant/ revisionist.
3. Aggrieved with the impugned judgment and decree dated 11.11.2014 in S.C.C. Suit No.20 of 2011 passed by Sri Pradeep Kumar Singh-II, Judge Small Cause/ Additional District Judge, Court No.7, Muzaffarnagar, the defendant-tenant/ revisionist has filed the present revision under Section 25 of the Provincial Small Cause Courts Act, 1887.
SUBMISSIONS:-
4. Learned counsel for the defendant-tenant/ revisionist submits that no opportunity of hearing was afforded by the court below either at the time of framing the issue No.12 or while deciding it. The aforesaid case was finally heard and the impugned judgment was delivered on 11.11.2014. The impugned judgment is violative of principles of natural justice. Apart from this, the defendant-tenant/ revisionist has fully complied with the provisions of Order XV Rule 5, C.P.C. Therefore, there was no occasion for the court below to strike off the defence of the defendant-tenant/ revisionist.
5. Sri Atul Dayal, learned senior advocate for the plaintiff-landlord/ respondent submits that there was neither any need to move an application for striking off the defence of the defendant-tenant/ revisionist nor any opportunity was required to be afforded. The court below found that the provisions of Order XV Rule 5, C.P.C. have not been complied with by the defendant-tenant/ revisionist and, therefore, it rightly struck off the defence and decreed the suit.
DISCUSSION AND FINDINGS:-
6. I have carefully considered the submissions of learned counsels for the parties.
7. As per finding recorded in the impugned judgment, the first date of hearing was 19.09.2011, on which date the case was adjourned for 30.09.2011. On 30.09.2011, the defendant-tenant/ revisionist filed written statement. He also filed an Application 22ga under Order XV Rule 5, C.P.C. along with tender form, which was allowed by the court below and immediately thereafter the defendant-tenant/ revisionist deposited the arrears of rent and interest on 10.10.2011. In the impugned judgment, it has also been mentioned that the rent upto the period June, 2011 was deposited by the defendant-tenant/ revisionist in Misc. Case No.133 of 2009 under Section 30 of U.P. Act 13 of 1972 and the Application of the defendant-tenant/ revisionist for adjustment of rent in the suit in question in terms of the provisions of Order XV Rule 5, C.P.C., was allowed by the court below. Neither court below nor the plaintiff-landlord/ respondent ever raised any objection thereafter with regard to non-compliance of the provisions of Order XV Rule 5 C.P.C. by the defendant-tenant/ revisionist. Even at the time of final argument, the plaintiff-landlord/ respondent merely raised objection as to the adjustment of the amount deposited under Section 30 in Misc. Case No.133 of 2009 on the ground that the case under Section 30 was dismissed for non-prosecution on 19.03.2010. This limited objection raised by the plaintiff-landlord/ respondent was wholly misconceived in view of the admitted facts of the case that the amount was deposited in the aforesaid misc. case for the period upto June, 2011 and the aforesaid case was restored on 29.01.2012 after recalling the order dated 09.03.2010. Therefore, even the submission by the plaintiff-landlord/ respondent before the court below with regard to the striking off of the defence of the defendant-tenant/ revisionist under Order XV Rule 5, C.P.C. was prima facie not available.
8. On the facts of the present case as briefly noted above, I find that the court below proceeded totally with non-application of mind and in gross breach of principles of natural justice. No opportunity was afforded to the defendant-tenant/ revisionist even to explain at that stage, that he has complied with the provisions of Order XV Rule 5 C.P.C.
9. In Bal Krishna vs. Ramanand Dixit and another, 1996 (2) ARC 285 (paras 12 to 22), a Division Bench of this Court has held, as under:
"12. A perusal of above quoted Rule 5 of Order XV of the Code shows that as far as striking off of the defence is concerned, the Rule has got two limbs. The first limb starts with the words "in any suit by a lessor ....... nine percentum per annum' and the second limb starts with the words "whether or not .... strikes of his defence". Thus, the first limb applies where after receiving writ of summons, the defendant/ tenant if deposits the arrears of admitted rent on or before the first hearing of the suit together with interest thereon at the rate of nine per centum per annum, he will be exonerated from the penalty of striking off his defence proposed to be taken up against his eviction, otherwise if an application is made by the landlord for striking off the defence of tenant, the same shall be decided in terms of the first limb.
13. In Garg's case (supra), an application was made by the landlord not soon after receiving the writ of summons rather after closing his evidence and at the stage of entering into witness box and the same was rejected by the trial Court but the Revisional Court directed the trial Court to decide the application as preliminary issue and under these circumstances learned Single Judge of this Court held that it was not proper to decide that application as preliminary issue at that stage.
14. The second limb of Rule 5 of Order XV of the Code postulates that whether or not he admits any amount to be due, he shall through-out 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 as aforesaid, the Court, may subject to the provisions of sub-rule (2), strike off his defence. Thus, the second limb envisages that only subject to Clause (2), the Court may strike off his defence. The provisions of Clause (2) are again reproduced for proper appreciation of the same.
"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-rule (1), as the case may be."
15. Thus, sub-rule (2) also speaks of the first hearing or of the expiry of the week referred to in sub-rule (1). The expression 'within 10 days of the first hearing' pertains to the first limb of sub-rule (1), whereas the expression 'within 10 days of the expiry of the week referred to in sub-rule (1)' pertains to the second limb of sub-rule (1) of Rule 5 of Order XV of the Code.
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 off 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-rule (1) of Rule 5 of Order XV of the Code.
17. Thus, with due regard to the learned Single Judge in Garg's case (supra), we may say that the second limb referred to above has not been taken into account in that case, and, therefore, in our opinion, learned Single Judge, while referring the matter to the Larger Bench in the instant case has rightly opined that Garg's case (supra), requires reconsideration.
18. This legal position is also to be made clear that once the defence of the defendant/ tenant is struck off on the ground that the tenant has not complied with the provisions of sub-rule (1) of Rule 5 of Order XV, C.P.C., i.e., any of the limbs as discussed above, its natural consequence would be a direction to evict the tenant and to decree the suit.
19. In Anandi Devi v. Om Prakash, 1987 Supp. SCC 527 : 1988 (2) ARC 239 (SC) : 1988 SCFBRC 433 (SC), in similar proceedings under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, their lordships of Apex Court ruled that the default in making a deposit of arrears of rent together with interest and costs in compliance of Order XV, Rule 5, C.P.C., entitles the landlord to make an application for striking off the tenants defence and such application should be allowed and the suit for eviction should be decreed. Thus, the consequence of non-compliance of Rule 5 of Order XV, C.P.C. are of very serious nature subject to sub-rule (2) of Rule 5 of Order XV of the Code.
20. Thus, in our considered opinion, the ratio laid down in Garg's case (supra), is not in consonance with the provisions of Order XV, Rule 5, C.P.C., the same consequently stands no longer a good law.
21. In Mahboob alias Challa v. Mohammad Hussain and others, 1983 (1) ARC 651, Lucknow Bench of this Court observed that the Court should decide the question of striking off defence as a preliminary issue before allowing the parties to adduce evidence on merits of the case. Not deciding such questions as preliminary issue is not justified. The question regarding non-deposit of rent raised at any stage of the suit and consequential striking off of the defence has to be decided first.
22. However, as discussed above, our precise answer to the question referred to us is that in view of the provisions of Rule 5 of Order XV of the Code, where the defendant commits default in making the deposit of the monthly amount due, during the continuation of the suit, event after the closure of the evidence of the plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV, Rule 5, C.P.C. and decide the same on merits."
(Emphasis supplied by me)
10. In paragraph-22 of the afore-quoted judgment in the case of Bal Krishna (supra), the Division Bench held that in view of the provisions of Rule 5 of Order XV of the Code where the defendant commits default in making the deposit of the monthly rent due, during the continuation of the suit even after closure of the evidence of the plaintiff, the court shall have power to strike off the defence and to consider the application made by the landlord under Order XV Rule 5, C.P.C. and decide the same on merit. Therefore, in view of the law laid down by the Division Bench as afore-noted, the court below could proceed to frame the issue on the point of striking off of the defence of the tenant on an application filed by the plaintiff-landlord/ respondent under Order XV Rule 5 C.P.C. No such application was moved by the plaintiff-landlord/ respondent. The principles of natural justice which is in-built in the provisions of Order XV Rule 5, C.P.C., were not followed by the court below.
11. In Spun Casting and Engineering Co. (P.) Ltd. vs. Dwijendra Lal Sinha, (2005) 6 SCC 265 (para-12), Hon'ble Supreme Court while considering the provisions of Section 17(1) of the West Bengal Premises Tenancy Act, 1956, held that where no issue had been framed on the point of eviction for default in payment of rent and there is no material on the record to show that the appellant did not deposit the alleged arrears of rent, then in such a case, a decree on the ground of default in payment could not be passed. Pleadings and evidences on record regarding the default in deposit of arrears of rent, are necessary requirement to pass a decree for eviction on that ground.
Applicability of Principles of Natural Justice in striking off the defence:-
12. In Paradise Industrial Corporation vs. K.P. Products, (1976) 1 SCC 91 (Para-4), Hon'ble Supreme Court while considering a rent case under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 laid down the law, as under:
"Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him, whereas if it is ordered in accordance with Section 11 (4) that he shall not be entitled to appear in or defend the suit except with the leave of the Court he is placed at a greater disadvantage."
13. In Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425, Hon'ble Supreme held that a code of procedure must be regarded as such. It is "procedure", something designed to facilitate justice. It is neither a penal enactment for punishment and penalties; nor a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides). Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard; that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle. The judgments in the cases of Paradise Industrial Corporation (supra) and Sangram Singh (supra), have been followed by a bench of this court in Raghubir vs. Devendra Kumar Arora, 1976 AWC 773, in a matter involving striking off the defence under Order XV Rule 5 and Order XI Rule 13, C.P.C.
14. In the case of Girdhar Lal Srivastava vs. District Judge, 1982 (1) ARC 71 (Paras-5 and 6), a bench of this court while considering the matter of striking off the defence under Order XV Rule 5, C.P.C. recognised the applicability of principles of natural justice. In Ram Prakash Mishra (Dr.) vs. IVth Additional District Judge, Etah, 1999 (35) ALR 346 (para-9), this court held, as under:
"9.....................
It has long been a practice which has received the strength of rule that no one is to be condemned, punished or deprived of property in any judicial or quasi-judicial proceeding unless he has had an opportunity of being heard. This is based upon the principle audi alteram partem. This maxim means that a person should not be condemned on ex-parte statements. The right to adduce evidence in defence and its due consideration by the authority concerned are integral part of the principle of natural justice. Therefore, a great care has to be taken by the Courts in exercising the discretion to strike off the defence as such an order has the effect of abrogating an important constituent of the principle of natural justice in consideration of defence. A great responsibility thus lies on the Judges to decide whether or not in the facts and circumstances of the case, the order of striking off defence should be passed. Such an order should not be passed in a routine manner and since it abrogates a valuable right of a party, the discretion should be used in making such an order only where there is no escape from it and where the discretion of the trial court has leaned in favour of the tenant, the revisional court should not interfere in that discretion except in the cases of extreme necessity and only where it finds that the discretion by the trial court has been exercised absolutely in an arbitrary manner against the sound judicial principles."
(Emphasis supplied by me)
15. In Bimal Chand Jain vs. Gopal Agarwal, (1981) 3 SCC 486 (Para-6) : AIR 1981 SC 1657, Hon'ble Supreme Court considered the provisions of Order XV Rule 5, C.P.C. and held as under:
"It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub- rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely 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 v. Pravin Gupta in Civil Revision No.356 of 1978, decided on 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 XV."
(Emphasis supplied by me)
16. In Sudhir Kumar Gupta vs. Dr. S.K. Raj, 1998 (33) ALR 382, a learned Single Judge of this Court analysed and examined various judgments of this Court and of Hon'ble Supreme Court and took the view that the order of striking off the defence is not to be passed in mechanical, cursory and perfunctory manner. The court must apply its mind to all the aspects of the case as the provisions of Order XV Rule 5, C.P.C. are not intended to punish the tenant if he is for some explainable reason, made default in deposit the amount of rent regularly.
17. In V. C. Kela and another v. M/s. Premier Precisions Tools Manufacturing (Pvt.) Ltd., Meerut and others, 1996 (1) ARC 62, this court held that power conferred by Order XV Rule 5 of the Code of Civil Procedure to strike off the defence is the discretionary power of the court and the court is not bound to strike off the defence in every case on a mere technical or bona fide default. Where a tenant is substantially complying with the provisions, his defence cannot be struck off for minor lapses and if the default is so insignificant and trifling, the judicial discretion requires the same to be ignored.
18. In Atma Ram vs District Judge, Dehradun, 1999 (35) ALR 616 (Para-20), this Court held that 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 is already existing on record and also to consider and weigh the facts and circumstances appearing in the case before taking the decision whether or not the tenant has made himself liable to punishment of the striking off his defence. The law has conferred upon the tenants a valuable right of hearing on the basis of principle of natural justice, and that right Includes also the right to adduce evidence in defence and due consideration thereof by a Court of law. Since the order of striking off the defence takes away a valuable right of the defendant of consideration of his defence and evidence, therefore, the provisions should not be construed in a mechanical or perfunctory manner. Before taking a final decision for striking off the defence, the Court must apply its mind to all the facts and circumstances appearing in the case and if it finds good reasons, it may decline to order the striking off defence. The discretion vested in the Court has to be exercised in a proper and legal manner and not in an arbitrary or mechanical manner.
19. For all the reasons afore-stated and the law laid down by Hon'ble Supreme Court and by this Court, the Revision is disposed of. The impugned judgment and decree dated 11.11.2014 in S.C.C. Suit No.20 of 2011 (Sri Manohar Lal Singhal vs. Sri Shashi Bhushan) passed by the Judge Small Cause/ Additional District Judge, Court No.7, Muzaffarnagar, is set aside. The S.C.C. Suit No.20 of 2011, is restored to its original number. Matter is remitted back to the concerned court below to decide the aforesaid suit afresh in accordance with law, expeditiously preferably within six months from the date of presentation of a certified copy of this order without granting any unnecessary adjournment to either of the parties. It is further provided that the parties shall file certified copy of this judgment before the court below on or before 31.08.2019 and, thereupon the court below shall fix a date not beyond two weeks for hearing of the suit and thereafter decide the suit in accordance with law within the period as aforesaid.
20. It is made clear that this court has not expressed any opinion on merits of Issue Nos.1 to 11.
Order Date :- 13.08.2019 NLY