Jagdish Dwivedi vs Munshi Ram Bharadwaj

Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. The petitioner claims to be a tenant of shop @ Rs. 300/- per month situated in Mohalla Nandanpura Avas Vikas Colony, Jhansi. The Respondent/landlord filed SCC Suit No. 5 of 2003 Munshi Ram Bhardwaj v. Jagdish Dwivedi, for arrears of rent and ejectment in the Court of Judge Small Causes, Jhansi.

The case was contested by the petitioner denying the allegation made in the plaint and submitted that he is not a defaulter and that in this regard no notice terminating his tenancy was served upon him.

An application dated 20.10.2004 has been moved under Order 7 Rule 11 C.P.C. to the effect that the plaintiff has not given the date on which cause of action has arisen and as such the plaint is liable to be rejected.

Subsequently, an amendment application dated 14.12.2004 was moved under Order 6 Rule 17 of the C.P.C. for amendment of the plaint. The petitioner/tenant also moved an application dated 4.9.2006 inter alia alleging that the valuation of the suit is more than Rs. 25,000/- as such the Court of Judge Small Causes Court has no jurisdiction to try the suit.

It appears that the plaintiff/respondent moved an application on 18.3.2008 under Order 15 Rule 5 of the C.P.C. for striking off defence of the petitioner. Objection were filed by the petitioner/tenant inter alia that the application dated 4.9.2006 (paper No. 46-C) regarding valuation of the suit has not been decided as yet and as such the application moved by the plaintiff/respondent for striking off the defence under Order 15 Rule 5 of the C.P.C. was not maintainable.

The trial Court vide its order dated 23.7.2010 allowed the application filed by the respondent/landlord under Order 15 Rule 5 of the C.P.C. and rejected the written statement filed by the petitioner.

Aggrieved by the said order, the petitioner/tenant filed SCC Revision No. 137 of 2010 for staying of the proceedings in SCC Suit No. 05 of 2003 before the District Judge, Jhansi. The case was thereafter transferred to the Court of Additional District Judge Jhansi Court No. 1 who without granting any interim order in favour of the petitioner/tenant vide its order fixed the case on 8.12.2010 for deciding the revision on merits.

In the aforesaid pleadings, the petitioner moved the High Court by means of Civil Misc. Writ Petition No. 69820 of 2010, Jagdish Dwivedi v. Additional District Judge Court No. 1, Jhansi and another, praying for a writ of mandamus directing to the trial Court not to proceed with SCC Suit No. 05 of 2003, Munshi Ram Bharadwaj v. Jagdish Dwivedi, until SCC Revision No. 137 of 2010 was decided. The writ petition aforesaid was disposed of staying the proceedings of Suit No. 5 of 2003 till disposal of SCC Revision No. 107 of 2010. The Revisional Court thereafter decided the said revision by impugned order dated 15.1.2011.

For ready reference the order is quoted below:

Learned counsel for the petitioner submits that the Courts below has wrongly allowed the application of the landlord filed by him under Order 15 Rule 5 of the C.P.C. for the reasons that the petitioner had paid advance for various purpose to the landlord and stated that the rent up to date has been adjusted in advance given by him.

He further submits that no receipts was given to the petitioner by the landlord in respect of all the advances or towards payment of rent, it was a matter of evidence, hence the defence could not have been struck off under Order 15 Rule 5 of the C.P.C. prior to providing him with an opportunity of adducing evidence. In this regard he has placed reliance a judgment rendered in Amba Prasad v. IVth AD and SJ, Agra and others, 1995 (2) ARC 625, the relevant paragraph No. 8 reads as thus:

Order XV, Rule 5 of the CPC provides that in any suit by a lessor for eviction of lessee from any immovable property after determination of the lease, the tenant shall, on or before the first hearing of the suit deposit the entire amount of rent or compensation for use and occupation admitted by him to be due and in case of default, the defence would be struck-of. This provision is in the nature of a penalty clause and would struck-off. This provision is in the nature of penalty clause and has to be very strictly construed. The intention of the legislature by the enacting this rule appears to be that in a case where the rent due is admitted by the tenant, then only he is obliged to deposit the amount due on or before the first hearing of the suit. In a case where the tenant denies the amount due against him for any reason whatsoever in that event he is not liable to deposit the amount under this Rule. It may be that the tenant may plead adjustment of the amount or may plead payment of the said amount to the landlord or his representative or payment in any other manner or deposit by him either in the Court as required by U.P. Act No. XIII of 1972 or in any other proceedings. It is, therefore, clear that the provision of Order XV, Rule 5 of the Code only apply to a case where the tenant admits any amount due from him.

Per Contra learned counsel for the respondents has submitted that admittedly the petitioner has neither deposited the amount of admitted rent due on the first day of hearing nor has thereafter deposited monthly rent as provided under Order 15 Rule 5 of the C.P.C. Hence the defence of the petitioner has rightly struck of by the Courts below.

It appears from the averment made in the written statement of the petitioner that he had given Rs. 5,000/- as advance before taking the shop as rent to the landlord, thereafter Rs. 5,000/- for manufacturing of gold ornament/articles and Rs. 30,000/- as advance for what purpose is not known. The Courts below after considering the case of the petitioner that the aforesaid amount is liable to be readjusted have recorded a concurrent findings of fact that payment of any amount as advance towards rent is prohibited u/s 4 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Courts below have also recorded finding of fact that if a receipt was not given by the landlord for the same period by the tenant, he ought to have taken legal proceeding in this regard against the landlord but as no such proceeding has been taken by him. It is an indicator that rent was not paid by the tenant to the landlord. The petitioner has not been able to prove his case either that he had paid rent to the landlord or that he had paid any advance to the landlord towards rent. Any amount paid to the landlord for other purposes such as for making ornaments for the tenant cannot be said to be amount advanced towards rent nor this business transaction can be adjusted in monthly rent due from the tenant.

Moreover, it is apparent from the findings recorded by the Courts below that there is no evidence whatsoever at that time petitioner had ever paid the amount as claimed by him. Even otherwise the case of the petitioner on the basis of bald statement of payment advance create in nature of business transaction etc. otherwise cannot be sustained. Since Section 4 of the Act No. XIII of 1972 prohibits the payment of premium or advance of rent, the petitioner who admittedly has acted contrary the statutory provisions is not liable for any relief for violating the statute.

Even if in this particular case we considered that amount of advance given by the petitioner was Rs. 40,000/-, still the Courts below have recorded a finding that rent due to the petitioner own admitted rate from the period 12.6.1990 would come to about Rs. 73,000/- up to the date of the order dated 15.1.2011 i.e. for a period of 20 years six months and 10 days. If the case of the petitioner was considered that the landlord has claimed rent for the period from 1.1.1994 it was still come to a sum of about Rs. 58,000/- in the facts and circumstances, if the hypothetical amount of advance is deducted still the petitioner would be in arrears of rent.

Counsel for the petitioner admits that the petitioner had not paid the monthly rent even after claiming the aforesaid amount of rent by the landlord. Hence it is found that the tenant/petitioner has not complied with the provision of Order 15 Rule 5 of the C.P.C.

All the reasons state above there is no legality or infirmity in the impugned order striking off the defence of the petitioner.

Accordingly the writ petition is dismissed. However, the Courts below is directed to decided the SCC Suit No. 5 of 2003 Munshi Ram Bhardwaj v. Jagdish Dwivedi within a period of three weeks from the date of production of certified copy of this order before him.