Punjab-Haryana High Court
Joginder Singh vs Karnail Singh on 3 December, 2001
Equivalent citations: 2002 A I H C 1474, 2002 HRR 157, (2002) 1 PUN LR 533, (2003) 1 RENCJ 233, (2002) 1 ICC 513, (2002) 4 CIVLJ 79, (2002) 2 CURCC 80, (2002) 1 CURLJ(CCR) 231, (2002) 1 RENCR 231, (2002) 1 RENTLR 564, (2002) 2 RECCIVR 614
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This revision is directed against the order dated 15.2.2001 of Civil Judge (Junior Division), Hoshiarpur whereby he allowed the plaintiffs application for striking off the defence of the defendant under Order 15 Rule 5 CPC as amended on 10.5.1991. 2. Facts:-
Plaintiff Karnail Singh son of Dalip Singh resident of village Allowal, tehsil and District Hoshiarpur filed suit against Joginder Singh son of Gurdev Sjngh for possession of shop situated in the area of village Pajjodeota, tehsil and district Hoshiarpur and also for the recovery of Rs. 11,000/- as arrears of rent/compensation for use and occupation of the shop for the period 1.7.95 to 30.4.97, on the allegations, that the plaintiff purchased the shop from its previous owner Shri Sardar Singh son of Suchet Singh through his attorney Sukhjeet Singh vide sale deed dated 23.6.95. Defendant was tenant of the shop under Sardara Singh. Defendant became tenant of the plaintiff by operation of law. Defendant admitted in the civil suit for permanent injunction that he is tenant of the,' plaintiff. Rs. 500/- was the monthly rent of the shop which was payable in advance since 30.3.1993. Defendant has not paid rent for the shop since 1.7.95 to 30.4.97. He was liable to pay a sum of Rs. 11,000/- as arrears of rent/compensation for use and occupation of the shop from 1.7.95 to 30.4.97. He filed this suit after serving him with legal notice dated 15.4.97 terminating his tenancy.
Defendant contested the suit urging that since the inception of tenancy, the rent was Rs. 180/- per month. After the plaintiff had purchased the shop, the defendant asked him to receive rent @ Rs. 180/- per month from him but the plaintiff asked him to pay him rent @ Rs. 500/- per month. When the plaintiff started threatening him with forcible dispossession of the shop and also disconnected the electric connection installed in the shop, he filed suit for permanent injunction in which stay was granted to him. He was always ready and willing to pay rent @ 180/- per month to the plaintiff which the plaintiff refused to accept.
2. Plaintiff made an application under order 15 rule 5 CPC as amended on 10.5.1991 for striking off the defence of the defendant urging that the defendant's defence be struck off as he has not deposited the admitted rent which is the mandatory requirement of Order 15 Rule 5 CPC. Defendant's defence was struck off vide order dated 8.1.1999 of Civil Judge (Junior Division), Hoshiarpur as he had failed to deposit the admitted rent which is the mandatory requirement of Order 15 Rule 5 CPC. Defendant went in revision against this order which was set aside by Hon'ble R.L. Anand, J. vide order dated 8.11.2000 in civil revision No. 261 of 1999. It was ordered while disposing of CR No. 261 of 1999 that the defendant shall pay rent @ Rs. 180/- per month including arrears, if any, and continue to pay Rs. 180/- per month to the plaintiff which amount may be accepted by the plaintiff without prejudice to his rights in the suit. It was also ordered that defendant shall furnish bank guarantee to the satisfaction of trial court respecting the amount represented by the difference of the rent claimed and the rent admitted. In other words, he was called upon to furnish bank guarantee for the amount that accumulated after 1.7.95 @ Rs. 320/- per month. It was also ordered that if the bank guarantee was not furnished or if rent @ Rs. 180/- was not paid within one month of 8.11.2000, this CR No. 261 of 1999 shall be deemed to have been dismissed for all intents and purposes. It was also mentioned that acceptance of the amount shall not prejudice the case of the plaintiff on merits. It was also mentioned that the defendant shall be given credit of the amount of Rs. 9210/- paid by him to the plaintiff in the High Court.
3. Defendant failed to furnish bank guarantee within the time stipulated in the order dated 8.11.2000 passed by Hon'ble R.L. Anand, J. Bank guarantee was to be furnished upto 8.12.2000. Defendant made an application on 12.12.2000 before Civil Judge (Junior Division), Hoshiarpur that time be extended by four days for the furnishing of the bank guarantee. In other words, he was ready with the bank guarantee on 12.12.2000. Bank guarantee was not accepted by Civil Judge (Junior Division), Hoshiarpur, Defendant came in Civil Misc. No. 18367-C of 2000 in CR No. 261 of 1999 (ibid) which came up for hearing before Hon'ble Anand, J. who vide order dated 11.1.2001 was pleased to extend time with further direction to furnish bank guarantee till 20.1.2001. In compliance of the order dated 11.1.2001, defendant submitted an application to the trial court for furnishing bank guarantee and he complied with the order passed by the High Court. On 2.2.2001, the plaintiff again moved an application under Order 15 Rule 5 CPC for striking off the defence of the defendant on the ground that he has not deposited the admitted rent with effect from 1.7.95 till date @ Rs. 180/- per month and had deposited only Rs. 9210/- in the High Court. There was thus difference of Rs. 2670/- and upto January this difference rose to Rs.2850/-. Notice of application filed by the plaintiff on 2.2.2001 was given to the defendant by Civil Judge (Junior Division), Hoshiarpur. Civil Judge (Junior Division), Hoshiarpur allowed application dated 2.2.2001 filed by the plaintiff and ordered the striking off the defence of the defendant. It is this order which has been called in question by the defendant through this revision.
4. It was submitted by the learned counsel for the petitioner (defendant) that the learned, Civil Judge (Junior Division), Hoshiarpur has not cared to appreciate the contention raised by him in reply to the application filed by the plaintiff on 2.2.2001 under Order 15 Rule 5 CPC. He had deposited rent @ Rs.180/- per month for the period 1.7.95 to 20.9.2000 amounting to Rs. 9210/- in the High Court. Plaintiff accepted that rent and the High Court directed him to furnish bank guarantee @ Rs,320/- per month and he furnished bank guarantee. Defendant had urged that the High Court had directed him only to furnish bank guarantee. He was not called upon to continue paying arrears @ Rs. 180/- per month Plaintiff accepted Rs. 9210/- and he was allowed to pay rent for the period subsequent to 20.9.2000. Plaintiff did not ask for the rent from him for the period subsequent to 20.9.2000. There is a provision in Order 15 Rule 5 CPC that the plaintiff must demand rent from the defendant. If the defendant fails to deposit, then the defence of the defendant can be struck off. The defendant was ready to pay rent for the period subsequent to 20.9.2000. First-of-all we have to look to the spirit of the order passed by Hon'ble R.L. Anand, J. dated 8.11.2000. Order dated 8.11.2000 passed by Hon'ble R.L. Anand, J. wanted the defendant to keep paying rent @ Rs. 180/- per monthly throughout. Defendant was required to furnish bank guarantee only for the amount that became accumulated @ Rs.320/- per month with effect from 1.7.95, Defendant had deposited Rs. 9210/- in the High Court. Vide order dated 11.1.2001 passed by Hon'ble R.L. Anand, J. in CM No.l8367-C of 2000 in CR No. 261 of 1999, defendant was allowed time to furnish bank guarantee upto 20.1.2001. Intention of the order of Hon'ble R.L. Anand, J. was not that it should work to the injury of the defendant if he failed to furnish bank guarantee within the time stipulated or make cash payment @ Rs.180/- per month. Intention was that plaintiff should be in receipt of rent @ Rs. 180/-per month and further he should be secure in the receipt of rent to the tune of Rs. 320/-per month with the furnishing of bank guarantee. What the defendant has done was that he furnished bank guarantee but he failed to pay rent for the period subsequent to 20.9.2000 @ Rs.180/- per month. It may be recalled that he had deposited Rs. 9210.- in the High Court as rent @ Rs.180/- per month for the period 1.7.95 to 20.9.2000. What the plaintiff wanted was that he should have deposited the arrears of rent to the tune of Rs.2670/- i.e. Rs. 11,880/- minus Rs. 9210/- which he had deposited in the High Court and also the bank guarantee. His failure to deposit Rs.2670/- was against the spirit of the High Court order dated 8.11.2000. It would bear repetition that the High Court order dated 8.11.2000 was not punitive in character. It was held in Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 that "in a suit for ejectment of lessee and for recovery of arrears of rent, the Court enjoys the discretion not to strike off the defence in case the defendant has defaulted in depositing the rent and has also failed to make any representation within terms of Order 15 Rule 5. There is a reserve of discretion vested in the Court entitling it not tc 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 vests power in the Court to strike off defence. It does not oblige it to do so in every case of default. 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. 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. It must be remembered that an order under Sub-rule (1) striking off the defence is in the nature of penalty. A serious responsibility rests, on the court in the matter and the power is not to be exercised mechanically."
5. It was submitted that when the petitioner could deposit Rs. 9210/- and also could furnish bank guarantee, it should not be taken that he was not in a position to deposit Rs. 2670/-. It was submitted that the defendant failed to interpret the order of the High Court dated 8.11.2000 in true perspective.
6. In this case, in his reply to the application under Order 15 Rule 5 CPC, the defendant had clearly stated that he was ready to deposit the amount of rent @ Rs. 180/- per month subsequent to 20.9.2000 and his reply is dated 10.2.2001. It appears that the plaintiff wanted to corner him so as to secure summary order of his ejectment. It is true that the court can strike off the defence of the defendant if he makes default in the deposit of monthly rent which he is required to deposit within the time stipulated from the date of its accrual. It was held in Bal Kishan v. Ramanand Dixit, 1997(1) RCR 282 by a Division bench of the Allahabad High Court that court has power to strike off the defence and consider application of landlord under Order 15 Rule 5 CPC.
7. It was submitted by the learned counsel for the respondent that where a tenant fails to deposit arrears of rent together with interest and costs in compliance with the requirements of Order 15 Rule 5 CPC, the eviction suit has to be decreed. In support of this submission, he drew my attention to Anandi Devi vs. Om Parkash, 1987 (Suppl.) SCC 527. It may be mentioned here that in the case in hand, the default on the part of the defendant is not wilful, intentional or blatant. He had deposited Rs. 9210/- in the High Court. He had furnished bank guarantee also. His failure to deposit Rs. 2610/- was occasioned due to his bona fide mistake in the interpretation of the order of Hon'ble R.L. Anand, J. dated 8.11.2000.
8. Looking to the facts and circumstances of the case, I think the learned trial court would be well advised in calling upon the defendant to deposit the arrears of rent @ Rs. 180/- per month to dale minus Rs. 9210/- which he had deposited in the High Court within a time to be stipulated now. It is, therefore, ordered that the defendant shall deposit the entire arrears of rent @ Rs. 180/- per month to date minus Rs. 9210/- which he had deposited in the High Court. If he has not furnished bank guarantee so far, he shall furnish bank guarantee now. He will comply with this order on or before 31.1.2002. If the defendant complies with this order, the impugned order of Civil Judge (Junior Division), Hoshiarpur dated 15.2.2001 striking off the defence of the defendant shall be deemed to have been set aside.
9. Revision disposed of.