Punjab-Haryana High Court
Gurjit Singh Gill vs Major Paramjit Singh Gothra on 18 March, 2004
Equivalent citations: (2004)138PLR474, 2004 A I H C 2236, (2004) 3 PUN LR 474, (2004) 2 RENCJ 152, (2004) 1 RENCR 619, (2004) 3 RECCIVR 101
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') prays for quashing order dated 16.2.2004 passed by the Civil Judge (Jr. Division) Kharar holding that the provisions of Order XV Rule 5 of the Code are mandatory in character and defendant-petitioner is under an obligation to pay arrears of rent @ Rs. 3,300/- p.m. from July, 2002 till the date of the application and upto 10.3.2004.
2. Plaintiff-respondent has filed Civil Suit No.638 dated 27.2.2004 seeking possession by way of ejectment of the defendant-petitioner from the suit property. Further prayer has also been made for recovery of arrears of rent of Rs.26,400/- @ Rs.3,300/- p.m. with interest @ 18 per cent from the due date till its realisation. The application has been allowed by the Civil Judge holding that the provisions of Rule 5 of the Order XV are mandatory in character and the rate of rent of Rs.3,300/- p.m. was admitted in the suit filed earlier.
3. Shri Gagandeep Toni, learned counsel for the defendant-petitioner has argued that there is no admission with regard to the rate of rent as has been wrongly concluded by the Civil Judge. According to the learned counsel the cause of the defendant-petitioner would gravely sutter it he is made to pay the whole arrears especially when he has paid rent upto October, 2003.
4. After hearing the learned counsel and perusing the impugned order, I am of the considered view that this petition is devoid of any merit and is thus liable to be dismissed. The payment of rent under Rule 5 of the Order XV of the Code is mandatory and if the defendant-petitioner commits default in making payment of arrears then the consequences flowing from Rule 5 of Order XV are bound to flow namely that this defence has to be struck off. Rule 5 of ORDER XV of the Code as incorporated by Punjab, Haryana and Chandigarh amendments read as under:
"5. Striking off defence for failure to deposit admitted rent.- (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 or 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 monthly amount due as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off his defence.
(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."
5. A perusal of Rule 5 shows that the defendant-petitioner is under an obligation to pay the entire arrears of rent for possession for use and occupation at or before the first hearing of the suit together with interest thereon @ 9 per cent p.a. It is also provided that he shall keep on depositing regularly the monthly amount of rent within one week from the date of its accrual. In case of any default the defence of the tenant is bound to be struck off. The Civil Judge has committed no error in holding that the provisions are mandatory in character. There is also sufficient evidence on record that the rate of rent of Rs.3,300/- p.m. has been conceded by the defendant-petitioner because he filed an earlier suit with a prayer of permanent injunction in respect of the suit property that he should not be forcibly dispossessed except in due course of law. On the statement made by the plaintiff-respondent, the petitioner has withdrawn his suit on 13.9.2002. According to the averments he made in the aforementioned suit the rate of rent fixed between the parties was Rs.3,300/- p.m. and the plaintiff-respondent was stated to be the real owner of the property in dispute. Therefore, the Civil Judge has proceeded on the basis of adequate evidence and has rightly concluded that the rate of rent is admitted to Rs. 3,000/- p.m. It appears to be well settled that provisions of Order XV Rule 5 of the Code are mandatory in character. The failure to deposit the admitted arrears of rent may result into striking off the defence of the tenant. In support of the aforementioned view, reliance could be placed on a judgment of the Supreme Court in the case of Anandi Devi v. Om Parkash 1987 (Supp.) Supreme Court Cases 527. It is equally well settled that in every case the striking off defence of the tenant is not necessary as has been laid down by this Court in the case of Raj Kumar Mittal v. Arvind Kumar Jain,2 (2003-1)133 P.L.R. 295. It would be appropriate to make a reference to the observations made by the Supreme court in Anandi Devi case (supra) which reads as under:-
"The learned Additional District Judge has failed to appreciate that the respondent having failed to comply with the requirements of Order 15, Rule 5 of the Code of Civil Procedure, 1908 by not making a deposit of arrears of rent together with interest and costs, the appellant's application for striking off the defence ought to have been allowed and thereafter the suit for eviction should have been decreed under Section 22(a) of the Act. In this view, the judgment and order of the High Court as well as that of the learned District Judge cannot be sustained. We accordingly, set aside those judgments allow this appeal."
6. The argument of the learned counsel with regard to rate of rent cannot be accepted in view of the fact that defendant-petitioner has conceded the rate of rent to be Rs. 3,300/- p.m. Even the other argument that the rent has been paid upto October, 2003 would also not be acceptable because no receipt was produced before the Civil Judge showing the payment of any rent. It is not acceptable that defendant-petitioner would have paid the rent without obtaining any receipt especially when the parties are in litigation with each other. Therefore, there is no merit in this submission of the learned counsel.
7. For the reasons recorded above, this petition fails and the same is dismissed