Punjab-Haryana High Court
Raj Kumar Mittal vs Arvind Kumar Jain on 29 October, 2002
Equivalent citations: (2003)133PLR295, AIR 2003 PUNJAB AND HARYANA 130, (2003) 1 RENTLR 395, (2003) 3 LANDLR 545, (2003) 2 INDLD 574, (2003) 1 ICC 1018, (2003) 1 RENCR 63, (2003) 1 RECCIVR 371, (2003) 1 PUN LR 295
JUDGMENT M.M. Kumar, J.
1. These two revision petitions i.e., C.R. Nos.2941 and 2942 of 1993 filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) have raised a common question of law and facts and, therefore, both of them are being disposed of by this common order. The substantial question of law raised in these petitions is as to whether the defence of a tenant could be struck off under Order 15 Rule 5 of the Code in a suit which has been pending prior to the addition of Order 15 Rule 5 of the Code on May 13, 1991 but in respect of non payment of rent for the period subsequent to the date of amendment i.e., May 13, 1991.
2. Brief facts of the case necessary for deciding the legal question raised in these revision petitions are being referred from C.R. No. 2941 of 1993. The plaintiff-respondent filed a civil suit No. 591 of 1989 dated November 28, 1989/November 21, 2000 against the defendant-petitioner with a prayer for possession of a shop and also for recovery of arrears of rent of Rs. 1400/- at the rate of Rs. 200/- per month for the period commencing from April 1, 1989 to October 30, 1989. Another prayer has also been made for recovery of Rs. 200/- p.m. for use and occupation of shop from November 1, 1989 to November 30, 1989.
3. During the pendency of the suit, the plaintiff-respondent filed an application under Rule 5 of Order 15 of the Code with a prayer that the defence of the defendant-petitioner may be struck off as they had failed to deposit the arrears of compensation for use and occupation of shop @ Rs. 200/- per month from May 1, 1993 till the date of filing the application, which was payable in advance. Claiming that the non-payment of arrears of compensation for use and occupation is covered by the provisions of Rule 5 Order 15, the plaintiff-respondent submitted that defence of the defendant-petitioner was liable to be struck off. The afore-mentioned application was filed on June 11, 1993. However, on August 11, 1993 defendant-petitioner moved an application before the trial Court seeking direction to the plaintiff-respondent to receive rent from May 1, 1993 to August 31, 1993 because the plaintiff-respondent did not accept the rent out of the Court as per earlier practice. On August 24, 1993, the application filed by the plaintiff-respondent was allowed and that of the defendant-petitioner was dismissed, by recording the following order:-
"4. Under Order 15, Rule 5 of the Code of Civil Procedure it was the duty of the defendant to deposit the entire admitted amount by him to be due together with interest there on at the rate of 9% per annum or before the first date of hearing, But the defendant neither paid nor deposited the arrears of rent. Therefore, plaintiff moved an application under Order 15 Rule 5 to strike of the defence of the defendant on 9.3.1992, Notice of the application was given to the defendant and defendant was allowed to pay the arrears of rent alongwith interest and cost by my learned predecessor vide his order dated 30.3.1992. Thereafter, the plaintiff did not press the application. Thereafter, defendant continued to pay the rent outside the Court.
5. Now the case of the plaintiff is that defendant has not paid the use and occupation charges from 1.5.1993 till date. Again notice of the application was given to the defendant, who again sought permission of the court to tender the arrears of rent. This time application was filed on 11.6.1993 and notice of the application was received by the defendant on 21.8.1993. But he did not make any effort to tender the arrears of rent. Rather he moved an application on 11.8.1993 for grant of possession to tender the rent for the period from 1.5.1993 to 31.8.1993.
6. Under Order 15 Rule 5 CPC, it is the duty of tenant to regularly deposit the monthly amount due within a week from the date of its accrual. Therefore, it was the duty of the defendant to regularly deposit the monthly rent in the court or to pay directly to the plaintiff. But the conduct of the defendant shows that he is not serious in depositing the rent. As referred above earlier also he had tendered the rent only after the plaintiff had moved the application. This time, the defendant can not be given any concession and therefore, in view of mandatory provision contained under Order 15 Rule 5, CPC, the defence of the defendant stand struck off.''
4. I have heard Mr. B.R. Gupta, learned counsel for the defendant-petitioner and Mr. Sanjay Bansal, learned counsel for the plaintiff-respondent. Mr. B.R. Gupta, learned counsel has raised three fold submissions to argue that the impugned order dated August 24, 1993 passed by the Sub Judge is liable to be set-aside which are as under:-
a) that Rule 5 Order 15 added on May 5, 1991 is prospective in nature and, therefore, would not be applicable to the suits pending before the date of the amendment. According to Mr. B.R. Gupta, the plaintiff-respondent had filed a civil suit on November 28, 1989 and the amendment having been made on May 13, 1991 would not apply to the facts of the present case;
(b) the learned counsel further submitted that provisions of Rule 5 of Order 15 are merely directory in nature and not mandatory. In other words, he submitted that even if there is a violation of Rule 5 of Order 15, the same would not result into striking off defence in all cases of violation;
(c) the conduct of the defendant-petitioner is not such as would disentitle him from raising the defence.
5. In support of this first submission, Shri B.R. Gupta, learned counsel has placed reliance on various judgments of this Court as well as of the Supreme Court. He has cited the judgments in the cases of Pt. Rishi Kesh and Anr. v. Salma Begum, 1995(4) S.C.C. 718; Jai Bhagwan v. Chander Mohan (1995-3)111 P.L.R. 191; Mamta Bread Khadi Gram Udyog Jind v. Ram Pati Devi, 1998(3)120 P.L.R. 114 and Mulakh Raj v. Sewa Samiti, (1999-1)121 P.L.R. 408 to argue that the provisions of Rule 5 of Order 15 pf the Code has been held to be prospective in its effects and therefore such provision could not govern the suit filed in the year 1989. He has also placed reliance on a judgment of the Constitution Bench of the Supreme Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., (2001)8 S.C.C. 24 to contend that the procedural laws which take away vested rights are always prospective in nature and effect. Such laws cannot have retrospective effect. It is pertinent to mention that the judgment in Shyam Sunder's case (supra) has been rendered by the Supreme Court with regard to the right of pre-emption as amended by Haryana Act X of 1995.
6. To substantiate his second submission, the learned counsel has submitted that the provisions regarding non payment of rent provided by Rule 5 Order 15 cannot be considered mandatory because it is not in every case of failure to deposit the admitted rent that the defence of the tenant like the defendant-petitioner has to be struck off. The learned counsel has argued that the provisions of Rule 5 Order 1.5 as added by the Punjab, Haryana and Chandigarh vide amendment dated May 13, 1991 are pari-materia to the amendment made by the U.P. Act No. 57 of 1976. The U.P. amendment came up for consideration of the Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal, A.I.R. 1981 S.C. 1657. Relying upon the afore-mentioned judgment, the learned counsel has claimed that adequate discretion has been given to the Court to either strike off the defence pr ignore the minor lapse after taking into consideration the conduct pf the tenant In this regard, he has also placed reliance on another judgment of this Court in the ease of Kumar Medical Agencies v. Smt. Nirmal and Ors., (1994-1)106 P.L.R. 154. For this proposition, the learned counsel has also placed reliance upon following three judgments of this Court viz. Karm Engineering Works v. M.S. Enterprises, (1998-3) 120 P.L.R. 742, Saras Paper Pack v. Shyam Sunder, (2001-1)127 P.L.R. 450 and Joginder Singh v. Karnail Singh, (2002-1)130 P.L.R. 533 to argue that it is only in cases pf blatant disregard of the provisions that such a course would be open to the Rent Controller.
7. The learned, counsel has further contended that the conduct of the tenant-petitioner is such which should not lead the Court to take the extreme view and strike off his defence. According to the learned counsel, the plaintiff-respondent filed the suit on November 28, 1989 and summons were issued to the defendant-petitioner for March 5, 1990 who deposited the amount of Rs. 8399/- on March 30, 1991 (Rs.7200 rent for 36 months plus Rs. 999/- as interest plus Rs. 200/- as costs), which was accepted by the plaintiff-respondent albeit under protest. The plaintiff-respondent has been receiving the rent from the defendant-petitioner out of the Court. However, there was a default committed from May 1, 1993 till August 31, 1993. According to the learned counsel, the application was filed by the plaintiff-respondent on June 11, 1993 under Rule 5 Order 15. On August 11, 1993, the defendant-petitioner has filed the application seeking permission of the Court to deposit the arrears of use and occupation with effect from May 1, 1993 till August 31, 1993. Therefore, it is claimed that the conduct of the defendant-petitioner is not such as would result in taking an extreme step of striking off his defence.
8. Mr. Sanjay Bansal, learned counsel for the plaintiff-respondent has made the following submissions:
a) that the nature of Rule 5 Order 15 is procedural as it does not impose any liability or disability and, therefore, it has to be considered retrospective in its effect. For this proposition, he has placed reliance on paras 23, 24 of the judgment of the Supreme Court in the case of Pandit Rishi Kesh and Anr. v. Salma Begum, 1995(4) S.C.C. 718;
b) That the conduct of the defendant-petitioner has been explained by the plaintiff-respondent in the application filed under Rule 5 Order 15 on June 11, 1993 and notice of the application was given for August 21, 1993 to the counsel for the defendant-petitioner, The summons were received by the counsel representing defendant-petitioner on June 15, 1993. He has drawn my attention to page 53 of the record of the trial Court to argue that the application filed by the defendant-petitioner on August 11, 1993 cannot be considered to be bona fide because on June 15, 1993 the notice of the application was received by Sh. J.P. Jain, Advocate, who has been representing defendant-petitioner and the same advocate filed the application on August 11, 1993, in which a prayer for permission to deposit the arrears of rent was made. The learned counsel has submitted that such a person should not be shown any indulgence by this Court and his petition is liable to be dismissed on this short ground alone;
c) the learned counsel has also controverted the submission made by the defendant-petitioner that civil suit was not competent by arguing that no point was ever raised before the Courts below and no such point could be raised for the first time in this revision petition, In support of his arguments, the learned counsel has placed reliance on a judgment of this Court in the case of Suresh Kumar v. Union of India, 12 (1969)71 P.I.R. 177 Silver Store v. Hisar Iron and Mechanical Works, A.I.R. 1970 Punjab and Haryana 393;
d) that provisions of Rule 5 Order 15 are penal in nature in as much as it is made clear that the defendant-petitioner should have deposited the amount of rent regularly within ft period of one week from the date it was due to be paid. If there was any representation which he was to make, the same could have been made by him within 10 days of the expiry of one week provided by Rule 5. In support of his submission, the learned counsel has placed reliance on a judgment of this Court rendered in the case of Surest Kumar v. Prem Chand, (1993-2)104 P.L.R. 408.
9. The learned counsel has also placed reliance on a judgment of the Allahabad High Court in the case of Abhinandan Kumar Jain v. 4th Additional District Judge and Ors., A.I.R. 1980 Allahabad, 347 to argue that once the amendment has come into force from May 13, 1991, the defendant-petitioner was under an obligation to comply with those provisions which require him to deposit the rent regularly with the plaintiff-respondent. According to the teamed counsel, the failure to deposit the rent must result into the penal consequences of striking off his defence.
10. After hearing the learned counsel for the parties and examining the judgment in the case of Pt. Rishikesh (supra), I am of the considered view that Rule 5 of Order 15 of the Code as added. w.e.f. May 13, 1991 would operate retrospectively in as much as it would apply to the pending proceedings which might have been instituted prior to the date of the amendment i.e. May 13, 1991. In that case by UP. Act 37 of 1972. Section 4 of the Provincial Small Cause Court Act was amended clothing the Court of Small Causes to decree suit for possession of immovable property and for recovery of arrears of rent or interest on such property. Rule 5 of Order 15 of the Code was brought on the statute book by U.P. Act 37 of 1972. As a consequent to the amendment added by U.P. Act No. 37 of 1972, Order 50 Rule 1(b) of CPC was suitably amended by the President's Act 19 of 1973 w.e.f. September 10, 1976 incorporating various amendments in the CPC and the U.P. Civil Laws (Reforms and Amendment) Act 1976, the Act No. 57 of 1976 was enacted on December 13, 1976 which was brought into force w.e.f, January 1, 1977. The Central Act became operative w.e.f. February 1, 1977, However, in the Central Act, there was no provision parallel to the one of Rule 5 Order 15 of the Code, The attack on the amendment made by virtue of Rule 5 Order 15 of the Code as added by U.P. Act 57 of 1976 was repelled by rejecting the argument that it was inconsistent with the provisions of the Central Act or had violated Article 14 of the Constitution. After it was determined that there is no repugnancy between the U.P. Act 57 of 1976 and the Central Act the question Whether the U.P. Act was to operate from a date prior to the date of amendment of the Central Act was considered by referring to the question as to whether the Central Act itself was retrospective or prospective. Holding that Central act itself was retrospective in its effect, the provisions of Rule 5 Order 15 as added by U.P. Act 57 of 1976 would be applicable to the proceedings instituted prior to the enactment of the U.P. Act. The observations of their Lordships read as under:
"The next question is whether the Central Act is retrospective in operation? The majority of the Full Bench held that it is retrospective and one Judge held it to be prospective and, therefore, U.P. (Amendment) Act would not be applied to the pending proceedings. Section 97(3) itself has taken case of the situation and envisaged thus:
"97(3) Save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amendment in this Act shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement: notwithstanding the fact that the right, or cause pf action, in pursuance, of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement."
Note, This reference relates to amendments made to rules in Order 39.
However, a plain reading clearly indicates the legislative intention that the provisions of the principal Act as amended in the Central Apt shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amendment Act or filed thereafter, notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Thereby it would be applicable to the pending proceedings even though a right had accrued or proceedings were instituted prior to the Central Act and the State Act have come into force.
Accordingly, we hold that Section 97(3) itself has affected the vested right and given retrospective operation to the pending proceedings, apart from applicability of fee law from that date. It may be of interest to notice that after the judgment in Ganpat Giri case, the matter was again referred to another Full Bench to reconsider the effect of the ratio in Chandra Rani case, the subject matter of the appeals. The Full Bench in Premier Motor (P) Ltd. v. Jaswant Prasad considered the effect of the Ganpat Giri ratio and held that the ratio in Chandra Rani case was not weakened. The ratio of the Full Bench was held to be still good law." 11. The other question as to whether the provisions are mandatory or directory also would not require any detail consideration in view of the fact that the matter is not res-integra. After detailed reference to various judgments this Court in Jai Bhagwan's case (supra) and the Supreme Court in Bimal Chand Jain's case (supra) it has been held that Rule 5 of Order 15 of the Code does not make it obligatory for the Court to strike off the defence in each and every case where the tenant defaults in the deposit of rent or possession together with rent. It has further been held that the Court has to apply its judicial discretion having regard to the facts of the case and then decide whether it is just and proper to strike off the defence.
12. Even otherwise the cause of action to the plaintiff-respondent in this case has arisen after May 13, 1991 and, therefore, it would govern the demand of rent made in respect of any period subsequent to May 13, 1991. The plaintiff-respondent had two options with him. First, he could have either filed a new suit for claiming arrears of rent from May 1, 1993 till the date of filing the application i.e. June, 1993 or second, he could have filed an application. It is also clear that the defendant-petitioner has admitted the default by not paying the rent from May 1, 1993 till August 31, 1993. The conduct of the defendant-petitioner in filing an application on August 19, 1993 cannot be considered to be bona fide because notice of the application filed on June 11, 1993 had already been received by Shri J.P. Jain, Advocate, representing the defendant-petitioner on June 15, 1993 and the application by defendant-petitioner for depositing the rent was filed on August 11, 1993. The prayer for permission to deposit the arrears of rent was made in that application. The defendant-petitioner has failed to make any representation with regard to default and, therefore, there is no ground to set aside the impugned order because the provisions of Rule 5 of Order 15 of the Code would be in any case available to the plaintiff-respondents because the cause of action had arisen after the enactment of the amendment on May 13, 1991.
13. For the aforementioned reasons, these revision petitions fail and the same are dismissed. The order passed by the Civil Judge striking off the defence of the defendant-
petitioners are upheld. The parties through their counsel are directed to appear before the Civil Judge on December 20, 2002. The record be send back immediately.