Allahabad High Court
Krishna Kumar Gupta vs Manoj Kumar Sahu on 10 April, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- S.C.C. REVISION DEFECTIVE No. - 43 of 2017 Revisionist :- Krishna Kumar Gupta Opposite Party :- Manoj Kumar Sahu Counsel for Revisionist :- Abu Bakht,Mr. Pramod Kumar Jain Counsel for Opposite Party :- Shalini Goel Hon'ble Manoj Misra, J.
Heard Sri P.K. Jain, learned senior counsel assisted by Sri Abu Bakht, for the revisionist and Miss Shalini Goel for the respondent.
This revision has been filed against the order dated 28.1.2017 passed by Additional District Judge (FTC), Court No. 52, Kanpur Nagar by which the defence of the defendant- revisionist has been struck off under Order XV Rule 5 CPC on account of not depositing the monthly amount during the pendency of the suit.
It is not in dispute that neither on the first date of hearing nor during the continuance of the suit any deposit has been made by the revisionist who is admittedly a tenant of the accommodation in dispute at the rate of Rs. 2970/- per month.
The order striking off defence has been assailed on the ground that according to the defendant a sum of Rs. 2,50,000/- had been given by way of advance rent and therefore the same ought to have been adjusted and as there were no admitted dues payable by the defendant to the plaintiff, the defence could not have been struck off.
The court below has observed that so far as the monthly rent was concerned, that had to be deposited whether admitted or not and in so far as the deposit of advance rent as alleged is concerned, that is a subject matter of evidence which could be decided in the course of trial but since monthly deposit had not been made, the defence was liable to be struck off.
Assailing the order passed by the court below, learned counsel for the revisionist has submitted that rent paid in advance can always be adjusted against the deposit required to be made under the provisions of Order XV Rule 5 CPC. In support of the above contention, reliance has been placed on a decision of this Court in Anil Kumar Mahajan Vs. Ashok Kumar and others 1990 (2) ARC 189.
Learned counsel for the respondent has supported the impugned order.
Before proceeding to assess the weight of the submission made by learned counsel for the revisionist, it would be useful to examine the provisions of Order XV Rule 5 CPC as applicable in the State of UP. Order XV Rule 5 provides as follows:
"5. Striking of defence for failure to deposit admitted rent, etc. 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 centum 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 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 any 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."
A bare reading of the aforesaid provision would reveal that there are two different categories of default on which defence can be struck off under Order XV Rule 5 CPC.
The first category is where the defendant, at or before the first hearing of the suit, does not deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum. The expression entire amount admitted by him to be due has been explained in Explanation 2 as 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.
The second category is where the defendant, whether or not he admits any amount to be due, fails to regularly deposit the monthly amount due, within a week from the date of its accrual, throughout the continuance of the suit. The expression monthly amount due is explained in Explanation 3 as 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 difference between the two categories discussed herein above, apart from the stage at which they apply, is two fold: (a) in the first category the defendant is required to make a deposit of the admitted dues whereas in the second category, which relates to monthly deposits, whether he admits it to be due or not, the deposit has to be made on a monthly basis, at the admitted rate of rent, throughout the continuance of the suit; and (b) in the first category the tenant can seek adjustment of the amount deposited under section 30 of UP Act No.13 of 1972 as well as the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him, whereas in the second category, which relates to monthly deposits, no such adjustment is permissible as would be clear from the difference between Explanation 2 and Explanation 3.
One of the common features in the two categories, which is reflected by the use of words "admitted rate of rent" in both Explanation 2 and Explanation 3 of Order XV Rule 5 CPC, is that there has to be an admitted jural relationship of lessor and lessee (landlord and tenant) between the plaintiff and defendant. A fortiori, if the relationship of landlord and tenant or lessor and lessee is not admitted by the defendant between the plaintiff and him, the provisions of Order XV Rule 5 CPC would not be applicable.
In the case of Chandan Singh v. Shyam Sunder Agrawal, (2006) 64 ALR 673, this court while dealing with the object of enacting the provisions of Order XV Rule 5 CPC, observed as follows:
"The idea of enactment of Order 15, Rule 5, C.P.C. is to compel the tenant to pay the rent at least at the rate he was paying earlier to the landlord notwithstanding the pendency of the litigation. Order 15, Rule 5, C.P.C. was enacted with a view that the landlord may not have to wait till the final decision of the case to recover his rent. He should at least get the rent at the rate he was getting before the start of litigation and a tenant may not enjoy the tenanted property without paying rent. The purport and object of Order 15, Rule 5, C.P.C. is to see that a tenant does not get undue advantage by withholding the payment of rent or pay it at a lesser rate than the one at which he was paying earlier on some lame excuse. Looking to the object which Order 15, Rule 5, C.P.C. seeks to achieve, a literal interpretation to the word ''admitted' would not serve the purpose and this Court is of the view that a purposive approach of interpretation should be resorted to."
Coming to the facts of the present case, the revisionist has admittedly not made monthly deposits though he admits the jural relationship of landlord and tenant between the plaintiff and him at a monthly rent of Rs. 2970/-. He, however, claims adjustment of Rs.2,50,000/- alleged to have been paid in advance. As already found above that no such adjustment is permissible in making monthly deposits, this court is of the view that the court below, upon finding that there has been failure in making monthly deposits, has rightly struck off the defence. The decision in Anil Kumar Mahajan's case (supra) relied upon by the learned counsel for the revisionist has not decided the issue in respect of permissibility of such an adjustment as claimed in monthly deposits but has only remitted the consideration of it by the court below therefore the said decision is of no help to the revisionist.
The revision is dismissed.
Order Date :- 10.4.2017 Arvind Court No. - 2 Civil Misc. Delay Condonation Application No. 109755 of 2017 In Case :- S.C.C. REVISION DEFECTIVE No. - 43 of 2017 Revisionist :- Krishna Kumar Gupta Opposite Party :- Manoj Kumar Sahu Counsel for Revisionist :- Abu Bakht, Mr. Pramod Kumar Jain Counsel for Opposite Party :- Shalini Goel Hon'ble Manoj Misra, J.
Heard learned counsel for the parties.
By this delay condonation application, the revisionist has prayed for condonation of about 30 days delay in filing revision against the order dated 28.1.2017 passed by Additional District Judge (FTC), Court No. 52, Kanpur Nagar in SCC Suit No.165 of 2015.
Considering the facts narrated in the affidavit accompanying the delay condonation application, the explanation seeking condonation of the delay is found good and sufficient.
The delay condonation application is allowed. Delay in filing the revision is condoned. Office shall assign a regular number to the revision.
Order Date :- 10.4.2017 Arvind