Punjab-Haryana High Court
Karm Engineering Works vs M.S. Enterprises And Ors. on 29 September, 1998
Equivalent citations: AIR1999P&H38, (1998)120PLR742, AIR 1999 PUNJAB AND HARYANA 38, 1998 HRR 613, (1999) 1 LANDLR 500, (1998) 120 PUN LR 742, (1998) 2 RENCR 553, (1998) 2 RENTLR 575, (1999) 1 RECCIVR 129, (1999) 1 ICC 155, (1999) 4 CURCC 271, (1999) ILR 2 P&H 124
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
ORDER V.S. Aggarwal, J.
1. The present revision petition has been filed by Karm Engineering Works, hereinafter described as the petitioner, directed against the order passed by the learned Additional Civil Judge (Senior Division), Faridabad, dated 15-5-1998. By virtue of the impugned order, the learned trial Court in exercise of its powers under Order 15, Rule 5 of the Code of Civil Procedure (for short "the Code") directed the petitioner to pay the arrears of rent within three months failing which the defence of the petitioner would be deemed to have been struck-off.
2. The relevant facts are that respondent M/s. M. S. Enterprises had filed a suit for ejectment against the petitioner with respect to the property in dispute. It has been alleged that the property in question was let to the petitioner. Initially the rent was Rs. 10630/- per month which was increased to Rs. 20661/- per month. It was further asserted that though petitioner is in arrears of rent but the civil suit is being filed for ejectment of the petitioner only reserving the right to file a suit for recovery. The suit as such was being contested and in the written statement filed, it was pointed out that it is obligatory on the part of the respondent firstly to terminate the tenancy. It was further the case of the petitioner that it had set up construction of the shed and entitled to the cost of this construction. As regards the claim for the recovery of the arrears of rent, petitioner's plea was that such a right cannot be reserved and under Order 2 Rule 2 of the Code, a suit for recovery would be barred.
3. During the pendency of the suit, an application was filed by the respondent for striking-off the defence of the petitioner. It was alleged that the rent is Rs. 20661.75 per month. It is due from October, 1992 onwards. The petitioner has not deposited the said amount and, therefore the defence of the petitioner should be struck-off. The said application had been contested and in the reply filed it was alleged that in the plaint itself only possession has been claimed and no arrears of rent and, therefore, Order 15, Rule 5 of the Code of Civil Procedure will not come into play. It was further contended that the civil suit is not maintainable because of the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
4. Learned trial Court vide the impugned order held that once the arrears of rent are due, the petitioner must pay the same and directed the petitioner to pay the arrears of rent within three months and further rent month by month by 10th of succeeding month failing which the defence of the petitioner-defendant shall be deemed to have been struck-off. Aggrieved by the same, the present revision petition has been filed.
5. Learned counsel for the petitioner assailed the order of the trial Court on the ground that in the facts. Order 15, Rule 5 of the Code of Civil Procedure is not attracted because arrears of rent have not been claimed specifically and once the arrears of rent are not claimed, such an order i.e. the impugned order cannot be passed.
6. In the facts of the present case, the contention so raised has merit and cannot be ignored. Order 15, Rule 5 of the Code has been inserted and made applicable vide notification dated 10-5-1991. It reads as under :--
"Order 15, Rule 5 (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 I : The expression first hearing means the date of filing written statement or 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. deposited in any Court.
Explanation 3 : 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 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 the security for such sum before he is allowed to withdraw the same.
7. The provisions of Order 15, Rule 5 of the Code have been interpreted and at the outlet it deserves observation that it is not mandatory to strike off the defence. The Supreme Court in the case of Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 : (1981 All LJ 908), held that this discretion is to be exercised carefully. In paragraph 6 of the judgment, it was held as under (at page 1659 of AIR) :--
"...... 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 vests power in the Court to strike-off the defence. It does not oblige it to do so in every case of default ......"
8. Even this Court in the case of Jai Bhagwan v. Chandra Mohan. AIR 1996 P & H 52, held that it is the discretion of the Court to strike-off the defence or not to do so. The findings are as under (at page 60) :--
"(2) that while exercising power under Order 15, Rule 5, the Court is not always bound to strike-off the defence in the case of failure of a lessee to deposit the amount of rent or compensation together with interest. Rather, the Court has the discretion to strike-offer not to strike-off the defence after considering the representation, if any, made by the defendant and the relevant facts brought on record of the Court."
9. Such a discretion, of course, exists with the trial Court. But the basic question, as already referred to above, is as to whether the Court was justified in passing the order in question or not? If the provisions of Order 15, Rule 5 of the Code are not applicable, then such an order directing the tenant to pay the arrears cannot be passed. As a corollary, it follows that defence could also be not struck-off.
10. A perusal of Order 15, Rule 5 of the Code reveals that it opens with the words "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....... ."It is abundantly clear that Order 15, Rule 5 of the Code which permits the Court to strike-off the defence on failure of the tenant to deposit the arrears would come into play if suit is for the recovery of possession and for recovery of rent or compensation for use and occupation. The expression "and" occurring is well known to be conjunctive. Both the conditions, namely, it has to be a suit for eviction and also for recovery of the arrears, must be satisfied. If the suit was only for eviction of lessee and not for recovery, in that event Order 15, Rule 5 of the Code will have no role to play. If in every suit for eviction of the lessee, the arrears were directed to be deposited, in that event there was no point for the Legislature to add that the suit has to be for recovery of rent or compensation for use and occupation. In the present case in hand, as referred to above, specifically the respondent alleged that arrears of rent were not being claimed. The respondent pleaded in so many words and the relevant portion of the plaint reads as under:--
"....... .The plaintiff has already instituted a complaint under Section 138 of the Negotiable Instruments Act against the defendant, which is pending in the Court of Sh. N.K. Kashyap, Additional Chief Judicial Magistrate, Faridabad. Vide this suit the plaintiff is only seeking ejectment and it has reserved its right to file a suit for recovery for the arrears of rent at a later stage, if the need arises."
11. When the arrears of rent were not being claimed in the suit in question, in that event, the respondent was not justified in filing application under Order 15, Rule 5 of the Code. The order of the trial Court, therefore, must be withdrawn.
12. Reliance was placed by the respondent on two decisions of this Court to contend that when arrears of rent are not deposited, the defence deserves to be struck-off. But both the decisions to be referred to herein are distinguishable. In the case of Suresh Kumar v. Prem Chand, 1993 (2) PLR 408 : (AIR 1994 P & H 203) the defence of the tenant was struck-off and similar was the position in the subsequent decision rendered in the case of Mrs. Ablinder Chawla v. Shri R.K. Gupta, 1994 (2) PLR 219 : (1995 AIHC 293 (P& H). However, in both these cases, the suit was filed for eviction of the tenant and for recovery of the arrears of mesne profits. It is not so in the present case. Herein, at the risk of repetition, it is mentioned that no arrears of rent or damages for use and occupation were claimed. Order 15, Rule 5 of the Code does not apply. The trial Court, therefore, was not justified in passing the impugned order.
13. For these reasons, the revision petition is allowed and the impugned order is set aside.