Allahabad High Court
Pradyuman Jee vs Special/Addl. District Judge And Ors. on 2 April, 2008
Author: Dilip Gupta
Bench: Dilip Gupta
JUDGMENT Dilip Gupta, J.
1. The petitioner has sought the quashing of the order dated 28th November, 2005 passed by the Judge, Small Cause Courts by which the application filed by the plaintiff-landlord under Order XV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ''CPC') as amended in the State of Uttar Pradesh was allowed and the defence of the tenant was struck off. The petitioner has also sought the quashing the order dated 29th February, 2008 passed by the Revisional Court by which the Revision filed by the tenant for setting aside the aforesaid order was dismissed.
2. SCC Suit No. 8 of 2003 was filed by the plaintiff-landlord with the allegation that the defendant was a tenant of the shop in dispute on a monthly rent of Rs. 13.75 since the time of late Narsingh Das Agrawal, husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7; that the defendant did not pay the rent as a result of which a registered notice dated 13th May, 2003 was sent to the tenant for determination of the tenancy and for making payment of arrears of rent but the defendant tenant did not vacate the premises and nor did he make the payment of arrears of rent despite service of the said notice.
3. A Written Statement was filed in which it was stated that the rent was being deposited under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''Act') since the time of the original landlord and the said application was registered as Misc. Case No. 70 of 1995.
4. During the pendency of the aforesaid suit, the plaintiffs filed an application under Order XV Rule 5 CPC for striking off the defence since the deposit as contemplated under Order XV Rule 5 CPC had not been made by the defendant at or before the first date of hearing or during the continuation of the suit. The defendant filed a reply to the aforesaid application asserting that the rent was being deposited in Misc. Case No. 70 of 1995 in favour of the landlord Narsingh Das Agrawal and no rent was due. It was further asserted that the plaintiffs were not the landlords since the landlord was Narsingh Das Agrawal with whom there was a contract of tenancy.
5. The Judge, Small Cause Courts allowed the application filed by the plaintiffs under Order XV Rule 5 CPC and the Revision filed by the defendant for setting aside the said order was dismissed. The Revisional Court has observed that the rent was being deposited by the defendant under Section 30(1) of the Act in Misc. Case No. 70 of 1995 even after 25th April, 1997 when the defendant had acquired knowledge of the death of Narsingh Das Agrawal and that the tenant did not dispute who the landlord was since the amount was not deposited under Section 30(2) of the Act but was deposited under Section 30(1) of the Act. It has accordingly dismissed the Revision.
6. Learned Counsel for the petitioner submitted that since there was a dispute as to who was the landlord, the provisions of Order XV Rule 5 CPC will not be attracted because in such a case the defendant does not admit that there was any amount due to him and in support of his contention he has placed reliance upon the decisions of this Court in Jayant Kumar Chakraborty v. Xth Additional District Judge Varanasi and Ors. 2004 (1) AWC 498; Chhedi Ram (D) and Anr. v. Om Prakash Srivastava 2003 (2) AWC 1612 and Kunwar Baldevji v. Xith Additional District Judge Bulandshahr and Ors. 2003 (3) AWC 2504. He further submitted that the deposit had been made under Section 30(1) of the Act and the said amount could have been adjusted towards the deposits to be made under Order XV Rule 5 CPC.
7. In the present case it is not in dispute that on the first date of hearing the tenant did not deposit the entire amount admitted by him to be due together with the interest. It is also not in dispute that the monthly amount due was also not deposited within a week from the date of its accrual during the continuation of the suit.
8. In order to appreciate the controversy involved in this petition it would be necessary to place the relevant provisions of Section 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:
Section 30. Deposit of rent in court in certain circumstances.- (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 likewise 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).
Order XV Rule 5 CPC 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.
9. On a careful analysis of the provisions of Order XV Rule 5 CPC it is seen 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.
10. It is, therefore, clear that Order XV Rule 5 CPC is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made whether or not he admits any amount to be due.
11. In the present case the defendant does not deny that late Narsingh Das Agrawal was the landlord of the shop in dispute and that not only during the lifetime of Narsingh Das Agrawal but even after his death the rent was being deposited under Section 30(1) of the Act. Section 30(1) of the Act provides that the tenant may deposit the amount in the Court if the landlord refuses to accept the same till such time as the landlord signifies by notice in writing to the tenant his willingness to accept the rent. Narsingh Das Agrawal died in 1997 but still the defendant continued to deposit the rent under Section 30(1) of the Act. The plaintiffs are the wife and children of Narsingh Das Agrawal. They had inherited the property. The contention of the learned Counsel for the petitioner that the relationship of landlord and tenant does not exist between the parties since the rent was deposited under Section 30(1) of the Act cannot be accepted because the rent is deposited under Section 30(1) of the Act when the landlord refuses to accept the same and not when there is a dispute as to who is the landlord as in such a situation the rent is deposited under Section 30(2) of the Act. Thus, the contention raised by the learned Counsel for the petitioner that the provisions of Order XV Rule 5 CPC are not applicable since the amount was not admitted to be due cannot be accepted. The decisions relied upon by the learned Counsel for the petitioner, therefore, do not help the petitioner.
12. The Supreme Court in the case of Atma Ram v. Shakuntala Rani 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 , Jagat Prasad v. Distt. Judge Kanpur 1995 Supp (1) SCC 318, M. Bhaskar v. J. Venkatarama Naidu , Ram Bagas Taparia v. Ram Chandra Pal , and E. Palanisamy v. Palanisamy 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.
13. The aforesaid decision of the Supreme Court in the case of Atma Ram 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.
14. A Division Bench of this Court in Haider Abbas v. Additional District Judge (Court No. 3) Allahabad and Ors. 2006 (62) ALR 552 while considering the provisions of Order XV Rule 5 CPC and the aforesaid decision of the Supreme Court in Atma Ram observed as follows:
The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC.
...
It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration.
Thus, the application filed by the landlord under Order XV Rule 5 CPC was liable to be allowed as the defendant had not made the deposit as contemplated under the first part of Order XV Rule 5 CPC.
15. Even otherwise, the defendant was required to deposit the "monthly amount due" throughout the continuation of the suit as contemplated under the second part of Order XV Rule 5 CPC though he may have denied the relationship of landlord and tenant between the parties because under the second part of Order XV Rule 5 CPC the deposit has to be made whether the defendant admits or does not admit any amount to be due.
16. This is what was observed by this Court in Smt. Kailash Devi v. IVth Addl. District Judge, Allahabad and Ors. 1994(2) ARC 542 wherein it was observed:
The provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh consists of two parts. In the first part the tenant is liable to deposit the entire arrears of rent admittedly due on the date of first hearing alongwith 9% interest thereon. The second part lays down that the deposit has to be made of monthly amount due within a week from the date of accrual through out the continuation of the suit whether or not the defendant admits the amount due. In Umesh Industries and Anr. v. IXth Addl. District Judge, Ghaziabad and Ors. 1994 (2) ARC 157, it was held that the tenant was liable to make deposit of monthly rent in time. He cannot take the plea that he was not liable to deposit the amount as the landlord/plaintiff owed money to him. The legislative intent was clear that the monthly amount has to be deposited month to month whether or not the defendant admit any amount to be due. He may not be liable to pay the rent claimed on the date of first hearing, but as regards monthly rent, he has to deposit whether he admits or not within the time prescribed, under Order XV, Rule 5 of the CPC.
17. This Court in Bal Krishna v. Rama Nand Dixit and Anr. 2001(1) ACJ 565 also observed:
In the instant case, obligation with regard to the deposit of the entire amount admitted to be due together with interest thereon at the rate of nine per centum, at or before the first hearing of the suit, does not arise inasmuch as the applicant has not admitted any amount to be due. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance of the mandate with regard to deposit of the monthly amount due within a week from the date of its accrual regularly during the continuation of the suit.
...
The provisions of Sub-rule (1) of Rule 5 of Order XV of the Code, unmistakably, enjoin upon the defendant in a suit by a lessor for his eviction to regularly deposit the monthly amount due within a week from the date of its accrual throughout continuation of the suit. In the event of default, the Court may, subject to the provisions of Sub-rule (2) of Rule 5 of Order XV of the Code, strike off his defence. The opinion expressed by the learned Single Judge in the case of Anil Kumar Mahajan v. Ashok Kumar and Anr. 1990 (2) ARC 189 is not in consonance with the provisions of Rule 5 of Order XV of the Code inasmuch as the Explanation (3) to Sub-rule (1) of Rule 5 of Order XV of the Code clearly forbids any deduction from "the monthly amount due", except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. It is rather per incuriam, and cannot lend support to the contention of the learned Counsel for the applicant.
18. In Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad and Ors. 2003 (1) ARC 214 this Court also observed:
I have considered the submission made by the learned Counsel for the petitioner, and I find myself unable to accept the same. As noted above, the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure provides that whether or not the defendant admits any amount to be due, he must regularly deposit throughout the continuance of the suit the monthly amount due within a period of one week from the date of its accrual. Therefore, this provisions shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus, evident that the defendant is bound to ensure compliance of the provisions of Order XV, Rule 5(1) of the Code of Civil Procedure throughout the continuance of the suit. In the event of any default by the defendant in compliance with the provisions of Order XV, Rule5(1) of the Code of Civil Procedure, the defence of the defendant may be struck off by the Court as the monthly deposit is required to be made throughout the continuance of the suit.
...
Thus, the petitioner, in any case, did not make any monthly deposit after May, 1993 as per the requirements of Order XV, Rule 5 of the Code of Civil Procedure. Hence, the defence of the petitioner was rightly struck off by the said order dated 13.7.2001.
19. This decision was subsequently followed by this Court in Kailash Shukla v. Additional District Judge and Ors. 2004(1) ARC 615.
20. In the present case it is an admitted fact that even the second part of Order XV Rule 5 CPC was not complied with by the defendant.
21. The deposit made under Section 30(1) of the Act cannot be taken into consideration for the purpose of the deposit to be made under the second part of Order XV Rule 5 CPC as was observed by the Division Bench of this Court in Haider Abbas.
22. As noticed hereinabove, the tenant has to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. The mandatory requirements of Order XV Rule 5 CPC were not complied with by the tenant and, therefore, the application filed by the plaintiffs under Order XV Rule 5 CPC was liable to be allowed.
23. There is, therefore, no infirmity in the orders impugned in the present petition. The writ petition is, accordingly, dismissed.