Anita Devi vs Sukumar Yadav

Prateek Jalan, J

This petition under Article 227 of the Constitution is directed against an order dated 21.02.2018, by which the petitioner’s application under

Order XV-A of the Code of Civil Procedure, 1908 [“CPCâ€​] has been dismissed.

The petitioner is the plaintiff in Suit No.12851/2016 pending before the Senior Civil Judge-04 (West), Delhi. She filed the suit against the defendant

for possession of the suit property [Ground Floor, WZ-514, New Municipal No.C-99, measuring 40 sq. yds. (approximately), part of Khasra No.1575,

situated in the old Lal Dora of Village Tihar, New Delhi-110018]. She also claimed a decree in the sum of Rs. 1,12,000/- towards arrears of rent from

April, 2015 to July, 2016 as well as an injunction restraining the respondent from subletting, assigning or parting with the possession of the suit

premises.

The case set up in the plaint is that the plaintiff let out the suit property to the defendant w.e.f. 01.05.2013 at the monthly rent of Rs. 7,000/- for a

period of five years, and an agreement was executed to this effect on 17.06.2013. It is contended that the defendant did not pay rent after March,

2015, and that the plaintiff terminated the tenancy by a notice dated 20.06.2016.

The defendant filed a written statement in which he has denied the relationship of landlord and tenant between the parties. Although the

petitioner’s ownership of the property was not disputed, it was contended that the defendant and his daughter entered into possession on

01.07.2007 as a result of marriage between the defendant’s daughter and the plaintiff’s husband. The defendant has further contended that

disputes arose thereafter between his daughter and the plaintiff’s husband, which were settled on terms that the plaintiff would sell the suit

property to the daughter of the defendant. He has stated that several documents were also executed in this regard but the documents were retained

by the plaintiff “in good faithâ€​.

During the pendency of the suit, the plaintiff filed the application under consideration, for deposit of rent in terms of Order XV-A of the CPC.

Having set out the cases of the respective parties, the Trial Court has dismissed the application with the following observations:

The plaintiff has relied on a written rent agreement purported to be signed by the defendant. However, same is an unregistered document whereas

the lease period is for five years. Accordingly, the said document cannot be considered by the court in view of section 49 of Registration Act, 1908.

Besides said agreement, there is no rent receipt or any other document to show the alleged tenancy. On the other hand, the defendant has filed a copy

of statement purportedly signed by plaintiff, defendant, defendant's daughter and plaintiff's husband which mentions about transferring the suit property

in the name of daughter of defendant.

It is to be noted that the provisions of order XV-A CPC are not restricted to the admitted rent as in order 39 rule 10 CPC. However, still the orders

under said Order have to be passed on the basis of settled principles that prima facie case shall be in the favour of plaintiff and that the denial of the

rent amount or the rent is evasive/false. However, in the given facts and circumstances, prima facie case is not in favour of plaintiff due to aforesaid

observations. Accordingly, application filed by the plaintiff u/o XV-A CPC is hereby dismissed.

Further application moved under section 35 of the Indian Stamp Act and section 17 of Registration Act to impound the rent agreement dated

17.06.2013 by the defendant. Copy supplied to the clerk of Counsel for plaintiff.â€​

Pursuant to the aforesaid order, learned counsel for the plaintiff states that the plaintiff has paid the requisite stamp duty and penalty on the rent

agreement dated 17.06.2013. He submits that an unregistered document can be looked into for collateral purposes and relies upon the judgment of the

Supreme Court in Bondar Singh & Ors. Vs. Nihal Singh & Ors. AIR 2003 SC 1905 (paragraph 5) in support of his contention.

Learned counsel for the respondent, on the other hand, contends that an order under Order XV-A of the CPC cannot be passed based upon an

unregistered document in view of provisions of Section 49 of the Registration Act, 1908. He further submits that such an order is also not permissible

when the landlord-tenant relationship is disputed.

Having heard learned counsel for the parties, I am of the view that the impugned order is not sustainable. The learned Trial Court has recorded that

the plaintiff has been unable to establish a prima facie case in his favour, in view of the stand taken by the defendant. However, there are several

discrepancies in the case set up by the defendant which have not been considered by the Trial Court. First, the defendant has not produced any

marriage certificate or any evidence, other than a photograph, in respect of the purported marriage between the daughter and the husband of the

plaintiff. The defendant has also not claimed that the plaintiff’s husband was residing with the defendant’s daughter in the matrimonial home.

Secondly, even assuming that the defendant’s daughter was married to the plaintiff’s husband, the defendant has not established any right in

his favour to remain in occupation of the premises. Finally, learned counsel for the plaintiff has drawn my attention to a rent agreement dated

23.05.2013 executed between the plaintiff’s husband [Baij Nath Sharma] and the defendant’s daughter [Kanchan Devi] wherein she is

described as wife of Bhupinder Yadav, as also the birth certificate of the son of the said Kanchan Devi, where the father’s name is again

mentioned as Bhupinder. These documents are inconsistent with the defendant’s case that his daughter married Baij Nath Sharma on 01.07.2007.

As far as the non registration of the rent agreement is concerned, for the present purposes, it is sufficient to note that the plaintiff is relying upon the

same only for the purposes of deposit of alleged arrears of rent in the Court. The legal notice sent by the plaintiff dated 20.06.2016 did not elicit any

response from the defendant, although learned counsel for the defendant contends that service of the notice was not effected.

The provisions of Order XV-A of the CPC are as follows:

ORDER XV-A

STRIKING OFF DEFENCE IN A SUIT BY A LESSOR

(A) ""In any suit by an owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent and further mesne profits from him, the

defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the Court may fix)

and thereafter continue to deposit in each succeeding month the rent clamed in the suit as the Court may direct. The defendant shall continue to

deposit such amount till the decision of the suit unless otherwise directed.

In the event of any default in making the deposit as aforesaid, the Court may subject to the provisions of Sub-rule (2) strike off the defence.

(2) Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the

defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be

relieved from an order striking off the defence.

(3) The amount deposited under this rule shall be paid to the plaintiff owner/lessor or his Advocate and receipt of such amount shall not have the

effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.

Note: This amendment shall come into force within the local limits of the jurisdiction of the High Court of Delhi immediately on the date of its

Publication in the Delhi Gazette.

The purpose of the provision has been explained by this Court in Prem Lata vs. Raghubir Rai & Ors., 2014 I AD (Delhi) 708, wherein this Court

held as follows:

.........In the first place, it requires to be observed that Order XV A CPC has been titled ""Striking off defence in a suit by a lesser"". It is, therefore, a

provision intended to benefit the lessor. The object is to mitigate the hardship to the landlord on account of long pendency of an eviction suit, during

which the lessor should not be deprived of the rent payable by the lessee or the future mesne profits that might accrue. The omission of any reference

to an 'admitted' rent is deliberate. It accounts for the possibility that the market rent, during the pendency of the litigation, might be much higher than

the 'admitted rent'. It therefore gives discretion to the Court to require the tenant to pay rent commensurate with the market rent or, in any event,

higher than the admitted rent. While the word 'rent' is relatable to the amount payable by a lessee, the provision also talks of an 'unauthorised

occupant'. On termination of the lease, the lessee would become an unauthorised occupant. In such case, the amount directed to be deposited by such

unauthorised occupant, for use and occupation, cannot be termed as 'rent'. This explains the use of the term 'such amount' occurring in the provision.

The provision states that apart from the arrears, the Defendant can be required to continue to deposit ""in each succeeding month the rent claimed

in the suit as the Court may direct"". If Order XV A Rule (1) CPC had stopped here, then it is possible to contend, a has been done by the learned

counsel for the Defendants, that the provision envisages deposit only of arrears of rent and nothing else. However, a further sentence in Order XV A

rule 1 CPC states ""the Defendants shall continue to deposit such amount till the decision of the suit unless otherwise directed:. When this sentence

read with the previous sentence in Order XV A rule 1 CPC, and the object of the provision is kept in mind, it is possible to interpret the term 'such

amount' as not being limited to an 'admitted' amount of 'rent'.

In view of the above, the plaintiff has made out a good case for deposit of arrears of rent under Order XV-A of the CPC. The defendant is

directed to deposit arrears of rent for the period April, 2015 to July, 2019 at the rate of Rs. 7,000/- per month in the Trial Court, amounting to Rs.

3,57,000/-. At the request of learned counsel for the defendant, it is directed that the arrears will be deposited in installments. The deposit will be made

by the 15th of each month starting with July, 2019, in seven installments of Rs. 50,000/- per month and an eighth installment of Rs. 7,000/-. The

defendant will also deposit in the Trial Court an amount of Rs. 7,000/- per month, in addition to the aforesaid arrears, by the 15th of each calendar

month, during the pendency of the suit. The amounts so deposited shall be deposited by the Trial Court in interest bearing fixed deposits.

It is made clear that the observations contained in this order are for the purpose of disposal of this application alone and will not prejudice the

parties at the trial of the suit. The deposit will also be without prejudice to the rights and contentions of the parties.

The petition is allowed in the terms aforesaid.