Allahabad High Court
Sunil Kumar vs Shri Kapoor Chandra Agarwal ... on 24 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1521, (2019) 10 ADJ 682 (ALL), (2019) 136 ALL LR 503, (2019) 203 ALLINDCAS 938, (2019) 2 ALL RENTCAS 545, (2019) 2 RENCR 201
Author: Y. K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.04.2019 Delivered on 24.05.2019 Court No. - 58 1. Case :- MATTERS UNDER ARTICLE 227 No. - 5641 of 2015 Petitioner :- Sunil Kumar Respondent :- Shri Kapoor Chandra Agarwal Dharamshala Trust Counsel for Petitioner :- Rakesh Kumar Garg Counsel for Respondent :- Nitin Kumar Agrawal,S.C. along with 2. Case :- MATTERS UNDER ARTICLE 227 No. - 5795 of 2015 Petitioner :- Naresh Chandra Agarwal Respondent :- Shri Kapoor Chandra Agarwal Dharamshala Trust Counsel for Petitioner :- Rakesh Kumar Garg Counsel for Respondent :- N.K. Agarwal and 3. Case :- MATTERS UNDER ARTICLE 227 No. - 5720 of 2015 Petitioner :- Umesh Chandra Respondent :- Shri Kapoor Chandra Agarwal Dharamshala Trust Thru Pradhan Counsel for Petitioner :- Rakesh Kumar Garg Counsel for Respondent :- Nitin Kumar Agrawal Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. These three petitions arise out of proceedings initiated by a common landlord, Sri Kapoor Chandra Agarwal, Dharamshala Trust, Kasganj, Kashiramnagar, for ejectment and arrears of rent, by filing three suits SCC Suit No. 04 of 2001, SCC Suit No. 08 of 2000 and SCC Suit No. 05 of 2001 respectively.
2. Counsel for the parties have requested that the case (Matters under Article 227 No. 5641 of 2015) may be treated to be leading petition, and they may be permitted to argue from the pleadings in the said petition.
3. The aforementioned suits were contested by the tenants by filing their written statements. It is undisputed that on the first date of hearing, the amount in question, as required under Order XV Rule 5 of the Code of Civil Procedure, was deposited; however, thereafter during the continuation of the suit proceedings, the monthly amount due was not deposited, and subsequently an application was moved under Order XV Rule 5 CPC for condoning the delay and for depositing the arrears of rent which as per the tenant-petitioners could not be deposited earlier due to wrong legal advice. The applications which were moved, were objected to by plaintiff-landlord by filing objections. The aforementioned applications which had been filed by the defendant-tenant on 29.11.2005 seeking condonation of delay and permission to deposit the arrears of rent, were allowed with costs of Rs. 1500/-. The aforementioned orders were challenged by the plaintiff-landlord by filing SCC revisions, which were dismissed vide order dated 01.09.2006 and against the aforesaid order the writ petitions, being writ petition nos. 66771/2006, 66769/2006 and 66770/2006 were filed.
4. The aforementioned writ petitions were heard together and decided by a common judgment dated 24.10.2008.
5. The provisions under Order XV Rule 5 and the legal position with regard to the same were considered in extenso, and adverting to the factual position, it was noticed that in the proceedings which had been initiated by the plaintiff-landlord by filing suits seeking relief for ejectment and arrears of rent in respect of tenanted accommodation, written statements had been filed on 05.05.2001, and there was no dispute that on the first date of hearing the tenants deposited the entire arrears of rent admitted to be due as required under the first part of Order XV Rule 5 CPC. Thereafter, no deposit towards the monthly amount due w.e.f. 11.04.2001 was made, and on 07.08.2004 applications were moved for passing of the tender stating therein that on wrong advice the rent in question could not be deposited and, therefore, permission was sought to deposit the rent. The said applications were objected to on 17.08.2004 by the plaintiff-landlord and on the same date applications were moved for striking off the defence.
6. While deciding the writ petitions, the principal issue which was considered, was as to whether the courts below had erred in law in not striking off the defence as admittedly after appearance has been put in on the first date of hearing the first part of the Order XV Rule 5 CPC had been complied with and in regard to the second part of the Order XV Rule 5 CPC no compliance had been made at all as during continuation of the suits the monthly rent accrued had not at all been deposited. The observations made by the court while considering the aforementioned issue are as follows:
"It is true that liberal view is to be taken in all these matters but in the garb of liberal view it is not provided for to accept all sort of story created and carved out for the purposes of the case. The theory which has been set up has to be logically tested as to whether it's rightful theory or it is theory only for the purposes of the cause. In the present case both the courts below have proceeded to mention that rent was not such which could not have been deposited and as such malafides are not reflected. Question is not of the quantum of the rental amount. Question is as to why accrued rent which was to be regularly and continuously deposited during the continuation of the suit has not been duly deposited. Explanation for not depositing amount in time has to contain valid and genuine reasons and not farce and sham reasons. If genuine and valid reasons are there defence has not be struck off but if ingenuine sham reasons are there the court will exercise its discretion in lawful manner and not in arbitrary manner. Here rent in question has not been paid for 40 months then in the garb of wrong advice of counsel, explanation has been set up and both the courts below have proceeded to accept the same in mechanical manner. Serious responsibility vests on the court, in such matter and power is not to be exercised mechanically. Discretion vested has to be judicially exercised, in accordance with law. Decision ought to have been taken objectively on the basis of material available on record produced from both the sides and much more inquiry ought to have been made qua the entire burden being put on the shoulder of the earlier counsel."
7. In terms of the judgment dated 24.10.2008 the orders passed by the courts below were set aside and the matter was remitted back for fresh consideration with the following observations and directions:
"In the present case as application moved on behalf of petitioner has not at all been considered in its correct perspective for striking of the defence, as such both the orders passed are hereby quashed and set aside and the matter is remitted back for fresh consideration, in accordance with law. Entire proceedings be finalized within next six months without granting any unnecessary adjournment to parties concerned.
With the above observations and direction all the writ petitions are allowed."
8. Pursuant to the aforementioned judgment the matters were taken up by the trial court and the reasons which had sought to be assigned by the tenants with regard to the default in making deposit of the monthly amount due have been considered in detail. Taking into notice the material on record the trial court has drawn a conclusion that it was an admitted fact that the defendant-tenants were in default in respect of the amount due towards rent for more than 40 months and the reason which was sought to be put forward for non-deposit was that their previous counsel did not advise them to make the said deposit.
9. In their evidence the defendant-tenants stated that they had asked their previous counsel to deposit the rent and their counsel had said that whenever the rent was to be deposited they would be informed, and in this manner the entire responsibility was sought to be shifted upon the earlier counsel. In support of their case, the defendants examined the clerk of their previous counsel, who in his testimony could only recollect a singular incident when the defendants had enquired from their counsel with regard to deposit of rent and they were told that when the rent was to be deposited they would be informed. The previous counsel upon whom the burden was sought to be shifted was neither produced in evidence nor examined. The trial court has taken note of the fact that the clerk of the previous counsel apart from referring to the one incident when the defendant-tenants had enquired with regard to deposit of monthly rent did not recollect any other occasion when the tenants had made an enquiry with regard to the same, and in this view of the matter the trial court has held that the assertion which was sought to be made by the defendant-tenants that they had repeatedly asked their previous counsel to make the deposit of monthly rent, was held to be not proved.
10. The trial court has recorded that it was the responsibility of the defendant-tenants to have regularly enquired with regard to the deposit of the monthly rent, and the defendant-tenants were responsible for the continuous default which had been made in regard to the same. On the basis of the aforementioned discussion, the trial court came to the conclusion that the tenants had defaulted in making payment of the monthly rent for a period of 40 months and the explanation sought to be furnished was neither reasonable nor correct and in view of the same the delay in making the deposit could not be condoned. The applications filed by the tenants for condonation of delay were accordingly rejected and the applications filed by the plaintiff-landlord for striking off their defence were allowed.
11. The revisional court taking due notice of the directions issued by this Court in the bunch of writ petitions decided in the earlier round of litigation, has considered the issue with regard to the claims raised by the defendant-tenants for condoning the delay in making deposit of the monthly amount due and has duly taken note of the legal position with regard to the provisions under Order XV Rule 5 to record its conclusion that the defendant-tenants were not entitled to be granted the benefit of condonation of delay in making the deposit and the order passed by the trial court did not suffer from any error. The revisions were accordingly rejected.
12. The present petitions seek to challenge the orders dated 4.10.2011 passed by the Judge Small Causes Court/Civil Judge (Junior Division) First, Kashiramnagar in SCC Suit No. 04 of 2001, SCC Suit No. 08 of 2000 and SCC Suit No. 05 of 2001, respectively, upon remand. The orders dated 26.8.2015 passed by the Additional District Judge, Court No. 1, Kasganj in SCC Revision No. 03 of 2011, SCC Revision No. 04 of 2011 and SCC Revision No. 02 of 2011 are also sought to be challenged.
13. Contention of the counsel for the petitioner is that the defendant-tenants having deposited the entire admitted amount on the first date of hearing, the first part of the Order XV Rule 5 had been complied with. As regards the compliance of the second part which is in respect of the deposit of the monthly amounts due it has not been disputed that the same were not deposited. The sole reason sought to be put forward in this regard is that due to wrong legal advise of the earlier counsel the deposit could not be made and it was only on 07.08.2004 that applications for condonation of delay and seeking permission to deposit the rent arrears towards the monthly amount due from 31.08.2001 to 31.08.2004, were moved.
14. Counsel for the petitioner has sought to contend that the courts below have not exercised judicious discretion while considering the explanation which had been furnished by the defendant-tenants with regard to delay in making compliance in respect of the deposits of the monthly amounts due. It is submitted that the defendant-tenants having submitted a valid explanation for the delay the courts below ought to have allowed their applications seeking condonation of delay in making the deposits. In support of aforementioned submission the counsel for the petitioner has placed reliance upon judgments in the cases of Israr Ahmad vs. First Additional District Judge and others1, Sudhir Chandra Gupta vs. S. K. Raj2, and Ram Prakash Mishra (deceased) through Lrs. vs. IVth Additional District Judge, Etah3.
15. The learned counsel appearing for the respondent-landlord has supported the orders passed by the courts below and has contended that the plea of wrong legal advise could not be taken as a defence in respect of a statutory liability and as per the settled law if the tenants wanted to take advantage of a beneficial provision they ought to have strictly complied with the provisions thereof. It is submitted that the tenants having defaulted for a period of more than 40 months their defence has rightly been struck off. Reliance in this regard has been placed on the judgments in the cases of Mariyam Gegum vs. Vasheer Unnisa Begum4, Panaru Lal vs. Ganpati Jha5, Om Prakash Gupta vs. D.J. And others6, Sunahri Lal vs. Smt. Premwati7, Atma Ram vs. Shakuntala Rani8, Pooran Chandra vs. Pravin Gupta9, Smt. Anjoo Chaturvedi vs. Shri Aavadhesha Kumar Srivastava and others10, and Bal Gopal Maheshwari and others vs. Sanjeev Kumar Gupta11.
16. Heard learned counsel for the parties and perused the records.
17. In order to appreciate the rival contentions, the provisions contained in Order XV Rule 5 CPC may be referred to. For ease of reference, the aforementioned provisions are being extracted below:
"5. Striking off defence for failure to deposit admitted rent, etc.-
(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent, per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.
Explanation 1.-The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.
Explanation 2.-The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Explanation 3.-(1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account.
(2)Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff.
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."
18. The provisions contained under Order XV Rule 5 CPC (as amended by U.P. Act No. 17 of 1976), came up for consideration before the Supreme Court in the case of Bimal Chandra Jain vs. Gopal Agarwal12 wherein it was held as follows:
"3. Rule 5 Order 15 of the Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act, 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re-enacted as follows:
"Striking off defence on failure to deposit admitted rent, etc.(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of sub-rule (2) strike off his defence.
Explanation 1-3 * * * * (2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within ten days of the first hearing or of the expiry of the week referred to in sub-section (1) as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account the court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same."
xxxxxx
6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand [ Civil Revision No. 356 of 1978, decided on October 30, 1980]. We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order 15."
19. The question as to whether deposit made under Section 30 (1) of the U.P. Act No. 13 of 1972 after receipt of summons in a suit could be taken into consideration for the purposes of compliance under Order XV Rule 5 CPC was referred to a larger Bench of this Court in the case of Haider Abbas vs. Additional District Judge and others13, and the Larger Bench had observed that Order XV Rule 5 is in two parts. The first part deals with the deposit of entire amount admitted by the tenant to be due together with interest on or before the first hearing of the suit, whereas the second part deals with the deposit of the monthly amount due which has to be made throughout the continuation of the suit. The observations made in the judgment of the Larger Bench are as follows:
"12.In the present case, however, we are called upon to consider whether the deposit made under Section 30 of the Act can be deducted while calculating the "monthly amount due" and not whether the defence should be struck off in a case where no representation has been filed by the tenant irrespective of the fact that on record there exist sufficient facts and circumstances not to do so.
13. On a careful analysis of the provisions of Order XV Rule 5 CPC we find that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit.
14. Explanation 2 to Order XV Rule 5 (1) CPC stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court under Section 30 of the Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5 (1) of Order XV Rule 5 CPC to mean the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account.
15. What has to be noticed in Order XV Rule 5 CPC is that the Legislature while defining "monthly amount due" which has to be deposited during the continuation of the suit has deliberately excluded the deduction of any amount deposited under Section 30 of the Act. We are, therefore, faced with a situation where the same Rule defines "entire amount admitted by him to be due" and "monthly income due" occurring in the first part and second part respectively of the Rules and while the former phrase stipulates the deduction of the amount deposited under Section 30 of the Act, the second part omits to mention such a deduction. It has, therefore, to be inferred that the Legislature has, in its wisdom, deliberately made a provision for deduction of the deposit of the amount under Section 30 of the Act only in respect of the amount to be deposited at or before the first date of hearing and not in respect of the monthly amount to be deposited throughout the continuation of the suit. This, coupled with the fact that both Explanation 2 and Explanation 3, referred to above provide "after making no other deduction except...." clearly leads us to no other conclusion except that only such deductions are to be made which have been specifically provided. The "monthly amount due" has to be construed in the manner provided for in Explanation 3 to Rule 5 (1) of Order XV CPC and in no other manner.
16.We may, in this context, usefully refer to some decisions of the Supreme Court which hold that where a Statute stipulates that the word or phrase shall mean a particular thing than no other meaning should be assigned."
20. Reference may also be made to the judgment in the case of E. Palanisamy vs. Palanisamy14 wherein it has been held that the benefits conferred on the tenants by the rent control legislation can be enjoyed only on the basis of strict compliance of the statutory provisions and equitable consideration has no place in such matters. The observations made in the aforesaid judgment are being extracted below:
"5......The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal [(1996) 1 SCC 243] and M. Bhaskar v. J. Venkatarama Naidu...............
xxxxxx
8.Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference."
21. A similar view was taken in the case of Atma Ram vs. Shakuntala Rani8 wherein it was held that in rent control legislation if the tenant wishes to take advantage of the beneficial provisions of the Act he must strictly comply with the requirements thereof. The relevant observations made in this regard are as follows:
"17. It will thus appear that this Court has consistently taken the views that in 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."
22. The aforementioned position was reiterated by a Division Bench of this Court in the case of Haider Abbas (supra) and it was stated as follows:
"23. The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
24. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC.
................
25. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration."
23. The aforestated view with regard to the tenant being obliged to strictly comply with the requirements of the Act in order to avail the advantage of the beneficial provisions has been reiterated by this Court in the judgments in the case of Kanhai and another vs. Prafull Kumar15 Ram Prakash Jaiswal vs. Smt. Rajwati and others16 and also in the case of Smt. Anjoo Chaturvedi vs. Shri Aavadhesha Kumar Srivastava and others10 .
24. The provisions under sub rule (2) of Rule 5 under Order XV which provides a locus poenitentiae to the defaulting tenant to make a representation within a period of 10 days of the first hearing or within a week from the date of accrual of rent, as the case may be, came up for consideration before a Division Bench of this Court in the case of Pooran Chandra vs. Pravin Gupta17, and it was held that in a case where the tenant had not made any representation or had made it beyond the time prescribed the court did not have a discretion to condone the default. The relevant observations made in the judgments are as follows:
"3. The provision enacted by the 1976 Act, was more detailed and more light. The tenant was required to deposit the entire arrears along with interest at nine percent at or before the first hearing, and also to deposit the monthly amount within a week of its accrual. Previously there was no time limit for depositing the monthly rent. The tenant was to deposit the amount of monthly rent regularly. Now he was required to deposit the monthly rent within a week from the data of its accrual.
4. The power of the Court to allow further time to deposit was circumscribed. Sub-rule (2) authorised the Court to consider the representation provided such representation is made within ten days of the first hearing or of the expiry of the week...." Thus sub-rule (2) provided a locus poenitentiae to the defaulting tenant; but he must make the representation within ten days of the first hearing or within a week from the date of accrual of rent, as the case may be, If the representation is not made within the specified period of time, the Court has no jurisdiction to consider a time barred representation or condone the delay or extend time.
5. For the defendant applicant it was submitted that the use of word 'may' in sub-rule (1) indicates that nonetheless the Court has discretion not to pass an order striking off the defence. Even though the tenant may not have made any representation or made it beyond time, the Court had a discretion and could, in a suitable case, condone the default. We are unable to agree.
6. Sub-rule (1) says that "the Court may subject to the provisions of sub-rule (2) strike off the defence". The discretion emphasized by the use of the word 'may' is with reference to sub-rule (2) under which the Court can condone. The Court is not bound to condone. It exercises a judicial discretion. The discretion is "subject to" sub-rule (2). "Subject to" means "conditional upon" K.R.C.S. Bala Kishan Chetty and Sons v. The State of Madras, A.I.R. 1961 S.C. 1152. If the condition mentioned in sub-rule (2) was satisfied the Court may not strike off. The Court was given the discretion to consider the representation and if it thought it to condone the default to refrain from striking off the defence. If the Court was not in a position to condone the default, it had no discretion left to or not to strike off the defence it had to strike it off.
7. Sub-rule (2) says "before making an order for striking off the defence, the Court may consider any representation...." This shows that the striking off is postponed till consideration of the representation. If there is a default, the Court is under a duty to strike off, unless it condones under sub-rule (2).
8. The use of word "may" is not decisive, It can mean "shall" (Sri Rangaswmai, the Textile Commissioner and others v. The Sagar Textile Mills (Pvt.) Ltd. and another, A.I.R. 1977 S.C. 1516. It depends on the object and context. Sub-rule (2) uses the word 'may' in the phrase "the Court may consider any representation." It will be preposterous to suggest that the Court can in its discretion refuse to consider a representation made within time. The Court is bound to consider it. It has no discretion there.
9. Order XV, Rule 5 C.P.C. was intended to pursuade the tenant to caught up the admitted rent, in time on pain of penalty if his defence being struck off. This object will fail of the Court is permitted, because of 'may' to nullify it. "
25. The judgments in the case of Israr Ahmad vs. First Additional District Judge and others1, and Ram Prakash Mishra (deceased) through LRS vs. IVth Additional District Judge, Etah3 upon which reliance has been sought to be placed by the petitioners are to the effect that if there is sufficient material on record to indicate that there are good reasons for condoning the default the court has a reserve power to reject the application for striking off the defence. There can be no quarrel with the aforementioned legal proposition, and this Court reiterates that powers under Order XV Rule 5 are not to be exercised in the case of a mere technical default.
26. In the present case the default in respect of complying with the second part of Order XV Rule 5 having been made continuously for a period of 40 months and the entire burden having been sought to be placed upon the counsel concerned and the said fact having been held to be not proved, it is not a case where it could be said that there was sufficient material or good reasons on the basis of which the court below could have exercised its discretion and condoned the long delay in making payment of the amount due. In the case of Ram Prakash Mishra (supra) the tenant therein had already deposited the rent in advance which was much more than the amount due, and it was in those set of facts that it was held that substantial compliance had been made. The present case where the tenants did not make any payment at all of the monthly amounts due for a period of 40 months, is clearly distinguishable on facts.
27. In the case of Sudhir Chandra Gupta Vs. S.K.Raj2 which has been referred by the petitioners, the court was considering the effect of the failure of the counsel or his clerk to deposit the rent for a period of only one month even though the tenant had paid the entire money to the counsel to deposit the rent regularly. It was in these circumstances that it was held if the tenant had some explainable reasons his representation against striking off the defence was required to be considered. The aforementioned judgment being on entirely different set of facts where bonafides of the tenant were fully established, the petitioners cannot derive any benefit of the said judgment.
28. As regards the contention sought to be raised by the petitioners pleading their ignorance regarding the requirement of making the necessary deposit in terms of the second part under Order XV Rule 5 and trying to shift the entire burden of responsibility on their counsel, reference may be had to the judgment in the case of Mariyam Begum vs. Vasheer Unnisa Begum18, wherein the contention of the tenant that she was an illiterate lady and did not pay rent due to ignorance was held to be not tenable. The observations made in the judgment in this regard are as follows:
"7. It is this dictum which is also relied upon by the learned counsel to contend that the default in payment of rent is not a wilful default. The learned counsel submits that she is an illiterate lady and on account of ignorance she could not pay the rent in time; she believed that as IA No. 11 was pending in the court, she could pay the rent only when the IA is decided. We are unable to accept this contention. When the IA was pending in the court, she was represented by an advocate in all the three cases noted above. She had the advantage of seeking advice from her advocate appearing on her behalf, if she had any doubt. This shows that there has been indifference, rather supine indifference, to the obligation of the payment of rent to the landlady. In this view of the matter we do not find any merit in the appeal. It is accordingly dismissed."
29. The plea of ignorance of law or wrong advise as a ground for explaining the default under Order XV Rule 5 came up for consideration in the case of Panaru Lal vs. Ganpati Jha5. This court after taking into notice the fact that the tenant was under obligation to make the necessary deposit, held that plea of ignorance of law or wrong advise would not come to his rescue. The relevant observations made in the judgment are as follows:
"4. Submission of the learned Counsel for the petitioner is that the petitioner was continuously depositing the rent under section 30 of Act No. 13 of 1972 even after filing of the written statement in the suit. The petitioner being an uneducated person and having no knowledge of the law, therefore, continued to deposit the rent under section 30 of the Act of 1972 on the advise of the Counsel. The petitioner moved an application requesting to condone the delay and permit the petitioner to deposit the rent in the Court where the suit was pending. The pleadings to the same effect has been made in para-15 and 19 of the petition.
x x x x x
7. The Court below has noted in the impugned order that the petitioner had put in appearance on 20 October, 2011 by filing power on the date fixed for hearing and for filing the written statement. The petitioner filed written statement on 16 January, 2012, the Court fixed 6 February, 2012 as the last date for hearing. The Court below upon noticing the undisputed dates, recorded a finding that the petitioner admittedly did not comply with the provisions of Rule 5 of Order XV nor any application was filed for compliance. The application (44-Ga) for deposit of rent and interest in terms of Rule 5, Order XV, was moved 8 months after putting in appearance in the suit, contending, therein that the petitioner has been depositing the rent in Misc. Case No. 118 of 2011 under section 30 of Act No. XIII of 1972, petitioner admittedly has not deposited the rent till August, 2012, before the Court hearing the suit. The application was moved on 5 September, 2012 when the suit was fixed for final hearing/evidence. Upon considering the undisputed facts, the Court below directed that the petitioner may deposit the rent at his own risk.
8. The undisputed fact which emerges is that the petitioner/tenant failed to deposit the monthly rent due in the Court where the suit was pending, admittedly, the amount of rent was being deposited by the petitioner in terms of section 30 of the Act No. 13 of 1972. The petitioner was under an obligation to deposit the rent before the Court where the suit was pending. The plea of ignorance of law or wrong advise would not come to the rescue of the petitioner."
30. A similar view was taken in the case of Om Prakash Gupta vs. District Judge and others6 wherein the plea sought to be raised on the basis of lack of correct legal advise to justify the non-deposit of the monthly amount due under Order 15 Rule 5 C.P.C. was turned down after taking into notice of the proposition of law in terms of the authoritative pronouncements made by the Supreme Court in the case of Bimal Chandra Jain (supra) and by a larger Bench of this Court in the case of Haider Abbas (supra). The relevant extracts from the judgment are as follows:
9. On the other hand, learned counsel for the defendant-opposite party submitted that on account of lack of correct legal advice, the defendant-opposite party continued to deposit monthly rent in proceedings under Section 30 of the Act. It is urged that since the entire rent was in deposit, therefore, the revisional court rightly extended the benefit of the said deposit while considering compliance of Order 15 Rule 5 CPC."
x x x x x
16. In the instant case, concededly, even after receipt of summons, monthly rent upto December 2012 was deposited by the tenant in proceedings under Section 30 (1) of the Act. It was only since January 2013 that he started depositing monthly rent in the instant suit. Consequently, the benefit of monthly rent deposited under Section 30 (1) after receipt of summons/filing of written statement i.e. 3.12.2010 upto December 2012 could not be extended to the defendant tenant while reckoning compliance of Order 15 Rule 5 CPC. There is no escape from the mischief of Order 15 Rule 5 CPC. The trial court was justified in striking off the defence. The revisional court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra)."
31. In a similar set of facts, in a case of default in making the monthly deposit from the year 2007 where the application seeking permission to make deposit the amount was made at the fag end of the year 2010 this Court in the case of Sunahri Lal vs. Smt. Premwati7, taking note of the provision under sub-rule (2) of Rule 5 under Order XV CPC which requires making of representation within seven days of default, held that the application seeking permission to deposit after the long delay was just an eye wash and was meaningless. The observations made by the Court in this regard are as follows:
"5. In reply to the above submission, the learned counsel for the plaintiff-respondent submitted that as admittedly the defendant-revisionist had not deposited the monthly amount before the Court concerned and the amount deposited, under Section 30 of the Act, cannot be adjusted against the amount required to be deposited on monthly basis, in view of the decision of the Division Bench of this Court, the order passed by the Court below cannot be said to be against the provisions of law so as to justify interference in the revisional jurisdiction. It was further submitted that there is no need for any permission to make a deposit and, therefore, the application of the defendant-revisionist was completely misconceived and the same cannot be taken as a representation which needed the attention of the Court. It was submitted that only for passing of the tender challan, permission is required when the amount is tendered but, in the instant case, the defendant-revisionist never tendered the amount for deposit before the Court concerned, therefore, the said application was completely meaningless and it cannot also be treated as a representation. It was also submitted that the default in making monthly deposit had been from the year 2007, that is, the year in which the revisionist had put in appearance whereas the application for permission to deposit was sought at the fag end of the year 2010. It has been submitted that sub rule (2) of Rule 15 of Order XV CPC requires that the representation ought to be within 7 days of default. It has thus been submitted that the application seeking permission to make deposit in the year 2010 is just an eye wash and is meaningless.
6. Having considered the submissions of the learned counsel for the parties, this Court is of the view that there is no dispute with regards to the failure on the part of the defendant-revisionist in making the monthly deposits that are required under Order XV Rule 5 of the C.P.C., as amended in the State of Uttar Pradesh. The learned counsel for the revisionist also could not show any binding authority taking a different view than what was taken in Haider Abbas case (supra). Accordingly, the deposit made under Section 30 of the U.P. Act No. 13 of 1972 was not entitled to be adjusted against the monthly deposit required under Order XV Rule 5 C.P.C. Therefore, the defence of the revisionist was liable to be struck off. As regards the submission that no order was passed on the application of the revisionist seeking permission to deposit the amount, suffice it to say that it is not the case of the revisionist that the amount was tendered for deposit, yet the Court concerned did not pass the tender challan. Unless the amount was tendered, the Court was not obliged to pass any order on the application of the revisionist because it is always open to the party to tender the amount to the Court and seek for its permission. Moreover, the said application was filed much after seven days of default. In any case, the default committed by the revisionist is not of one or two monthly deposits. The default has been of more than two years since before the filing of the application seeking permission to deposit. In such a fact scenario, it cannot be said that the trial Court erred in not exercising discretion in favour of the revisionist. In view of the above, I do not find any legal error in the order passed by the Court below. The revision is dismissed. There is no order as to costs. "
32. Coming again to the facts of the present case, it is undisputed that the tenants have defaulted in complying with the mandatory provisions under second part of Order XV Rule 5 CPC which mandates that the tenants throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and also provides that in the event of any default in making the deposit of the said monthly amount due, the court may strike off their defence. The expression "monthly amount due" as per Explanation 3(1) 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. The right to make a representation before an order striking off defence is passed by the court, has been conferred upon the tenant under sub-rule (2) and in terms thereof the representation with regard to the default in making deposit of the monthly amount due, is to be made within 10 days of the expiry of the week when the default is made.
33. The petitioners having admittedly defaulted in making payment of the monthly amount due as per the terms of the second part under Order XV Rule 5 for a period of 40 months, and the only explanation sought to be furnished was by way of shifting the burden upon their earlier counsel, which fact also could not be proved by them by leading any cogent evidence, in view of the settled legal position with regard to the mandatory requirement of making compliance of the beneficial provisions under Order XV Rule 5, the orders passed by the courts below rejecting the representations made by the tenants for condoning the delay and granting them permission for making the necessary deposits, and allowing the application filed by the landlord for striking off their defence, cannot be faulted with.
34. The rent legislation has normally been construed for the benefit of the tenant, and if a tenant wishes to take advantage of the beneficial provisions under the rent control statute he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed that condition must be strictly complied with failing which the advantage of the benefit being conferred by such a provision cannot be availed. A beneficial statute has to be construed in a manner so as to fructify the legislative intent. Although a beneficial legislation does receive a liberal interpretation, the courts would try to remain within the scheme and not extend the benefit beyond the terms thereof. It may also be true that once the provision envisages conferment of benefit subject to fulfillment of certain conditions, their non-compliance would normally have the effect of nullifying the benefit. The reserve of discretion vested in the court entitling it not to strike off a defence under Order XV Rule 5 C.P.C. may thus be exercised in a case where it finds good reason for not doing so on the basis of the facts and circumstances existing on record and equitable considerations would usually have no place in such matters.
35. The position of law in this regard being undisputed, counsel for the petitioners has not been able to point out any material error or irregularity in the orders passed by the courts below so as to warrant interference in exercise of power under Article 227 of the Constitution.
36. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil19 and also in the case of Radhey Shyam and another vs. Chhabi Nath and others20.
37. The petitions lack merit and are accordingly dismissed.
Order Date :- 24.05.2019 Pratima (Dr. Y. K. Srivastava, J.)