Anil Kumar Jain vs Promod Kumar Gupta and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

In this case on 9.4.2009 following order was passed:

Counter and rejoinder-affidavit on delay condonation application have been exchanged. The Court inquired from the learned Counsel for both the parties that in case after hearing both of them delay is condoned, whether the learned Counsel for both the parties would be ready for final hearing at once. Learned Counsel for both the parties expressed their readiness for final hearing of the revision forthwith in case delay was condoned.

After hearing learned Counsel for both the parties delay of about a month in filing revision is condoned on payment of Rs. 5,000 as cost which shall be paid to the learned Counsel for the respondent by tomorrow 10.00 a.m.

Put up tomorrow for final hearing.

Thereafter, on 10.4.2009, cost was paid and arguments on merit were heard.

This tenant''s revision u/s 25, Provincial Small Causes Court Act is directed against order dated 20.11.2008, passed by court below/J.S.C.C./A.D.J.-II, Kanpur Nagar in S.C.C. Suit No. 51 of 2007, which has been filed by the landlord respondent No. 1 against tenant-applicant and proforma respondents No. 2 and 3.

Through impugned order defence of the tenant has been struck off under Order XV, Rule 5, C.P.C. and written statement, which had already been filed, was cancelled.

Defendant tenant had deposited Rs. 17,450 on 29.4.2008/2.5.2008 (Rate of rent according to the defendant is Rs. 100.30 per month). Thereafter, rent for May to August, 2008 was deposited on 21st July, 2008 and thereafter rent from September to December, 2008 was deposited on 3rd November, 2008.

Through the impugned order, court below struck off the defence mainly on the ground that rent from May to December, 2008 was not deposited within time every month.

Provisions of Order XV, Rule 5 are as peremptory as the provisions of Order VIII, Rule 1, C.P.C. However, interpreting the latter provision, the Supreme Court in several authorities including Kailash Vs. Nanhku and Others, and R.N. Jadi and Brothers v. Subhas Chandra 2007 (3) ARC 1 (SC) : 2007 (4) AWC 3430 (SC), has held that in spite of peremptory language, Court still has got jurisdiction to condone the delay in filing the written statement and take the same on record but it shall be done on heavy cost.

In this case, monthly rent has been deposited but slightly late.

Learned Counsel for the tenant applicant has cited an authority of the Supreme Court in Manik Lal Majumdar and Others Vs. Gouranga Chandra Dey and Others, In the said authority, interpreting Tripura Rent Control Act, the Supreme Court held that even though it was necessary to deposit the entire admitted rent before filing appeal, however in appropriate cases, appellate court could permit the filing of the appeal without such deposit but before proceeding to hear the appeal, it is necessary for the appellate court to ensure payment of admitted rent. The other authority cited by learned Counsel for the applicant is Mangat Singh Trilochan Singh v. Satpal jt 2003 Supp (1) sc 624. In the said case also it has been held that if there was no mala fides on the part of the tenant, then jurisdiction to condone the delay could be exercised.

Learned Counsel for the landlord has cited the following authorities:

(1) S.K. Kamthan v. Noor Ahmad 1992 (2) ARC 82 (SC).

In the said case, it has been held that unless there is an appropriate application, delay in making deposit cannot be condoned.

(2) The other case cited by learned Counsel for the landlord is J.S. Pental v. VIIth Additional District and Sessions Judge, Ghaziabad and Ors. 2007 (1) ARC 834, taking a similar view.

The Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal, has held that Court has got discretion under Order XV, Rule 5, C.P.C. for condoning the delay in making the deposit.

It has also been stated by learned Counsel for the tenant that rent uptil June, 2009 stands deposited. Application to strike off the defence was filed by the landlord on 1.9.2008. Defendant filed reply on 22.9.2008.

Written statement had been filed on 11.8.2008. The first deposit of Rs. 17,450 had been made more than three months before the said date. The court below, in the impugned order, has not mentioned that what was the date of first hearing. Even in the application filed by the landlord for striking off the defence dated 1.9.2008, there is no mention that what was the date of first hearing. Monthly deposit is to be made after the date of first hearing.

Learned Counsel for the landlord has also argued that absolutely no explanation was given by the tenant for not depositing monthly rent by 7th of each succeeding month.

In view of the above, I am of the opinion that order of striking off the defence is liable to be set aside, however on payment of heavy cost.

Accordingly, revision is allowed. Impugned order is set aside on payment of Rs. 15,000 as cost to be deposited before court below within two weeks for immediate payment to landlord.

Property in dispute is situate on G. T. Road, Kanpur Nagar, which is most expensive city of U. P. and consists of five rooms, two kitchens, two store rooms etc. Rent according to the landlord is Rs. 500 per month and according to the tenant, it is Rs. 85 per month and Rs. 15.30 is payable in addition thereto as water tax (total Rs. 100.30).

However, it is directed that the suit must be decided very expeditiously.

Absolutely, no unnecessary adjournment shall be granted to any of the parties. If Court is inclined to grant any adjournment in any form to any of the parties, then it shall be on very heavy cost, which shall not be less than Rs. 500 per adjournment. Any application for transfer, amendment, commission etc. should be treated to be an adjournment application.