Bal Krishna vs Ramanand Dixit and Another

B.M. Lal, J.—This revision is directed against the impugned order dated 16.9.1989 passed by Sri. S. K. Malviya, Judge, Small Causes Court IVth Additional District and Sessions Judge, Jhansi whereby the defence of the applicant/tenant revisionist has been struck off.

The short facts leading to this revision as well as subsequent reference to this Bench made under Chapter V, Rule 6 of the Rules of the Court; are as under:

One Ramanand and Anr. landlords of Shop No. 64/2, Khatriyana, Jhansi let out the shop to the applicant Bal Krishna at the rate of Rs. 300 per month and ultimately brought an action against Bal Krishna for his eviction, inter alia, on the ground that Bal Krishna has not paid rent since 1.12.86 inspite of demand notice dated 18.2.88 which was served on him on 1.3.88. The said suit was filed under the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. During the pendency of the suit, an application was moved on behalf of Ramanand and Ors. the Plaintiffs under Order XV, Rule 5 (Allahabad Amendment) of the CPC for sriking of the defence of the Defendant Bal Krishna and the same has been allowed by the impugned order and the defence has been struck off. Hence this revision.

The revision came to be listed before the learned single Judge on 15.3.90 before whom it was argued that during pendency of the suit after commencement of the stage of recording the evidence, the application as framed and filed for striking off the defence in terms of Order XV, Rule 5 of the Code was not maintainable and in support thereof, a decision of this Court rendered in the case of Rajendra Pal Garg and Ors. v. Ist Additional District Judge, Dehradun and Ors. 1987 (2) ARC 289, was cited wherein it is held that the power of striking off the defence cannot be exercised after the closure of the evidence of the Plaintiff. Learned single Judge of this court having considered the ratio of Garg''s case (supra) expressed his opinion that the view taken in Garg''s case (supra) requires reconsideration by a larger Bench, therefore, the papers were placed before Hon''ble the Chief Justice for nominating the Bench upon which this Bench was nominated by Hon''ble the Chief Justice by order dated 31.8.92 .

No doubt while referring the matter to the Chief Justice for constituting the larger Bench, no specific question for determination by the larger Bench was framed. Despite that, whether the reference as made may be construed to be a question which may be answered by this Bench and then the revision may be sent to the learned single Judge for decision, is to be determined in the light of the provisions of Chapter V, Rule 6 of the Rules of the Court which reads as under:

Reference to a larger Bench.--The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event, the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining question, if any, arising therein.

The provision of Rule 6 deals with two contingencies. First contingency Is, if the larger Bench is constituted to decide a case and the second contingency is, if the larger Bench is constituted to decide any question of law formulated by a Bench hearing a case. In the latter event, i.e., in the second contingency where the larger Bench is constituted to decide any question of law, the decision of larger Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case.

The reference order passed by learned single Judge reads as under:

This revision involves the question of interpretation of the provisions of Rule 5 of Order XV of the Code of Civil Procedure, 1908, as applicable in the State of Uttar Pradesh, in relation to the power of the Court to strike off defence where the Defendant commits default in making the deposit of the monthly amount due during the continuation of the suit after the closure of the evidence of the Plaintiff."

A learned single Judge of this Court has. in the decision rendered in the ease of Rajendra Pal Garg and Ors. v. Ist Addl. Distt. Judge, Dehradun and Ors. 1987 (2) ARC 289, held, in substance, that the power of striking off the defence cannot be exercised after the closure of the evidence of the Plaintiff. This view does not appear to be free from doubt and requires consideration by a larger Bench. Let the papers, therefore, be laid before the Hon''ble the Chief Justice for appropriate orders.

In the instant case, it appears that although the reference order does not contain any question of law formulated in its technical sense, yet, in substance, it does contain a question and that is question of interpretation of the provisions of Rule 5 of Order XV of the CPC as applicable to the State of U.P. in relation to the power of the Court to strike off defence where the Defendant commits default in making the deposit of the monthly amount due during the continuation of the suit.

Thus, in our opinion, after answering the question referred to this Bench, papers be laid before learned single Judge for disposal of the case as required by Rule 6 of Chapter V of the Rules of the Court.

Now, before dealing with the question referred to this Bench, it appears necessary to give brief history as to how the provisions of Order XV, Rule 5 of the CPC as introduced by U.P. Amendment came to be introduced.

The provisions of Section 20(4) of the Act provide procedure for payment of arrears on the first date of hearing of the suit and if the tenant ? disputes the arrear, the Court has been conferred power to give relief the tenant against the liability for eviction on the ground and in that case, the provisions of Order XV, Rule 5 of the Code will not apply. Thus, the provisions of Order XV, Rule 5 have been introduced in CPC to be used only against that class of tenants who commit defaults in payment of arrears of rent in the suit filed against them on the ground that they have committed default in paying the rent. The total idea behind this provision appears to be to protect the landlords from hardships and giving them a right to make an application to strike off tenants'' defence in case the tenant does not comply with the provisions for depositing the arrears of rent even after filing of the suit for his eviction on this ground. Therefore, the State Legislature at its wisdom introduced this provision by Act No. 57 of 1976 on 13.12.76 which received assent of the President on 30.12.76 and the same was published in the Gazette on 31.12.76 and came into force with effect from 1.1.77.

As stated above, the actual controversy involved in this case is in relation to the power of the Court to strike off defence where the Defendant commits default in making the deposit of the monthly amount due during the continuation of the suit after the closure of the evidence of the Plaintiff. The Garg''s case (supra) precisely deals with the controversy in issue and rules that the question of striking of defence cannot be examined as preliminary issue after the closure of the evidence of the Plaintiff landlord, and if such an order is passed at that stage, the same would be liable to be quashed. Thus, whether the view taken in Garg''s case (supra) is in consonance with the provisions of Order XV, Rule 5 of the Code, is to be examined by this Court and for that purpose, it is necessary to reproduce the entire provisions of Order XV, Rule 5, Code of Civil Procedure, which reads as under:

Striking off defence for failure to deposit admitted rent, etc.--(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 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 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 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 and the amount, if any, deposited in any Court u/s 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-rule (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 perusal of above-quoted Rule 5 of Order XV of he Code shows that as far as striking off of the defence is concerned, the Rule 5 has got two limbs. The first limb starts with the words "In any suit by a lessor...nine per centum per annum." and the second limb starts with the words "whether or not...strike off his defence." Thus, the first limb applies where after receiving writ of summons, the Defendant/tenant if deposits the arrears of admitted rent on or before the first hearing of the suit together with interest thereon at the rate of nine per centum per annum, he will be exonerated from the penalty of striking off his defence proposed to be taken up against his eviction, otherwise if an application is made by the landlord for striking off the defence of tenant, the same shall be decided in terms of the first limb.

In Garg''s case (supra), an application was made by the landlord not soon after receiving the writ of summons rather after closing his evidence and at the stage of entering into witness box and the same was rejected by the trial court but the revisional court directed the trial court to decide the application as preliminary issue and under these circumstances, learned single Judge of this Court held that it was not proper to decide that application as preliminary issue at that stage.

The second limb of Rule 5 of Order XV of the Code postulates that 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 monthly amount due as aforesaid, the Court, may subject to the provisions of Sub-rule (2), strike off his defence. Thus, the second limb envisages that only subject to Clause (2), the Court may strike off his defence. The provisions of Clause (2) are again reproduced for proper appreciation of the same.

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 or the week referred to in Sub-section (1), as the case may be.

Thus, Sub-rule (2) also speaks of the first hearing or of the expiry of the week referred to in Sub-rule (1). The expression ''within 10 days of the first hearing'' pertains to the first limb of Sub-rule (1), whereas the expression ''within 10 days...of the expiry of the week referred to in Sub-rule (1)'' pertains to the second limb of Sub-rule (1) of Rule 5 of Order XV of the Code.

Therefore, as far as second limb of Sub-rule (1) of Rule 5 of Order XV of the Code is concerned, the settled legal position is this that in any suit by a lessor for the eviction of a lessee alter the determination of his lease and for the recovery from him of rent or compensation for use and occuptation, the Defendant/tenant 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 monthly amount due, the Court may strike off his defence, of course, after considering representation, if any, made by the Defendant/tenant in that behalf within 10 days of the expiry of the period or a week from the date of its accrual. Order XV, Rule 5 of the Code, nowhere refers about the closure of the evidence of the Plaintiff. Hence, in our considered opinion, closure of the evidence of the Plaintiff has nothing to do with the statutory liability of the Defendant/tenant to regularly deposit the monthly amount due throughout the continuation of the suit within a week from the date of its accrual and in the event of any default in making such deposit, the Court may strike off his defence irrespective of the fact whether the Plaintiff has closed his evidence or not. The only safeguard provided in this regard is that before making the order to strike off the defence, the Court may consider the representation of Defendant/tenant if made within 10 days of the first hearing or of expiry of the week referred to in Sub-section (1) of Rule 5 of Order XV of the Code.

Thus, with due regard to the learned single Judge in Garg''s case (supra), we may say that the second limb referred to above has not been taken into account in that case, and therefore, in our opinion, learned single Judge while referring the matter to the larger Bench in the instant case has rightly opined that Garg''s case (supra) requires reconsideration.

This legal position is also to be made clear that once the defence of the Defendant/tenant is struck off on the ground that the tenant has not complied with the provisions of Sub-rule (1) of Rule 5 of Order XV, Code of Civil Procedure, i.e., any of the limbs as discussed above, its natural consequence would be a direction to evict the tenant and to decree the suit.

In Galib Bin Awaz Vs. Mohd. Abdul Khader and Others, in similar proceedings under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, their lordships of Apex Court ruled that the default in making a deposit of arrears of rent together with interest and costs in compliance of Order XV, Rule 5, CPC entitles the landlord to make an application for striking off the tenant''s defence and such application should be allowed and the suit for eviction should be decreed. Thus, the consequences of non-compliance of Rule 5 of Order XV, CPC are of very serious nature subject to Sub-rule (2) of Rule 5 of Order XV of the Code.

Thus, in our considered opinion, the ratio laid down in Garg''s case (supra) is not in consonance with the provisions of Order XV, Rule 5, C.P.C, the same consequently stands no longer a good law.

In Mahboob alias Challa v. Mohammad Hussain and Ors. ARC WSJ Vol. 1 651, Lucknow Bench of this Court observed that the Court should decide the question of striking off defence as a preliminary issue before allowing the parties to adduce evidence on merits of the case. Not deciding such questions as preliminary issue is not Justified. The question regarding non-deposit of rent raised at any stage of the suit and consequential striking off of the defence has to be decided first.

However, as discussed above, our precise answer to the question referred to us is that in view of the provisions of Rule 5 of Order XV of the Code, where the Defendant commits default in making the deposit of the monthly amount due, during the continuation of the suit, even after the closure of the evidence of the Plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV, Rule 5, CPC and decide the same on merits.

In Kesho Nath Khurana Vs. Union of India (UOI) and Others, , their lordships of apex Court observed that single Judge, if refers the question of law to Division Bench, the Division Banch ought to send the matter back to single Judge after deciding the question of law referred to it.

Accordingly, we have decided the question of law referred to us and, therefore, now we are sending the matter back to learned single Judge for deciding the case in the light of answer given by this Bench.

Papers be now remitted to learned single Judge for decision in accordance with the Rules of the Court.