Janki Prasad Saxena vs Tara Krishna Chaturvedi

K.C. Agrawal, J.—This is a Defendant''s revision directed against the order of the trial Court dated 24-9-1973 striking off the defence of the applicant. The applicant is admittedly a tenant of the premises belonging to the opposite party. The opposite party filed a suit for eviction of the applicant on 10-5-1971. The suit was subsequently transferred to the court of the Judge Small Cause on 27-1-1973. The first hearing of the suit was fixed for 13-4-1973. The applicant admittedly did not make any deposit towards the arrears of rent and damages for use and occupation on or before ''the aforesaid date. The opposite party, thereafter, filed an application on 14-9-1973 for striking off the defence of the applicant. This application was made under Order 15 Rule 5 Code of Civil Procedure, as amended by the U.P. Civil Laws Amendment Act (Act No. 37 of 1972). In this application the opposite party alleged that as the applicant had not made deposits required by the aforesaid Rule 5 of Order 15 CPC the written statement filed by the applicant was liable to be struck off. The application was contested by the applicant. He, however, also filed an application on 19-9-1973 for permission of the court to deposit Rs. 224/-. According to the case of the Defendant, the opposite party was not entitled to get the rent claimed by him in the Suit. In support of this plea the Defendant asserted that he had spent a huge sum in repairs of the house and as per the agreement he was entitled to adjust the amount spent by him on repairs. He, thus alleged that in case the amount claimed by him was adjusted, the Plaintiff opposite party was not entitled to get anything by way of arrears of rent or damages.

The application was decided by the trial court on 24-9-1973. By the said judgment the trial court found that the applicant had not paid to the opposite party since March 1969. Therefore, the defence of the applicant was liable to be struck off. The trial court also found the total amount of rent payable by the applicant from March 1969 to 12-4-1973, which was the first date fixed for hearing came to Rs. 576. In the opinion of the trial court, the defence of the applicant was liable to be struck off also on the ground that the applicant did not make monthly deposits after 12-4-1973 towards the damages. On this view of the matter the application made by the opposite party was allowed whereas the objections filed by the applicant were rejected.

The applicant filed revision against the judgment of the trial court before the District Judge u/s 25 Small Cause Courts Act. The revision was dismissed and the judgment of the trial court was maintained. Aggrieved by the aforesaid orders of the two courts below, the present revision has been filed by the Defendant.

In this case the sole question involved is about the scope and ambit of Order 15 Rule 5 CPC as amended by the U.P. Civil Laws (Amendment) Act (Act No. 37 of 1972). The following Rule 5 was added in Order 15 of the Code of Civil Procedure:

(5) Striking off defence on non-deposit of admitted rent, etc.- In any suit by a lesser for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use Or occupation thereof whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the Defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act) the first hearing after such commencement deposit the entire amount of rent, or compensation for use and occupation admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his defence.

(2) The provisions of this rule are in addition to and not in derogation of anything contained in Rule 10 of Order XXXIX.

It will be seen from the above prevision that the Defendant of a suit filed for the recovery of rent and eviction has been directed to deposit the entire amount of rent or damages for use and occupation admitted by him to be due. This amount admitted to be due has to be calculated upto the date fixed for first hearing of the suit. The question that now arises for determination is as to the meaning of the words "admitted by him to be due". The learned Counsel for the applicant contended that in the instant case the applicant did not admit that the rent for the period before the first hearing to be due on him, therefore, the aforesaid provision was not applicable to the instant case.

It appears from the written statement that the applicant had pleaded that he had spent more than what was due to the opposite party on repairs for the period mentioned above and as an agreement had been arrived at between the applicant and the opposite party, he was entitled to adjust the rent towards the amount spent on repairs. It is no doubt true that the defence could be struck off in case the applicant would have admitted that the rent claimed by the opposite party was due on him. But as the claim of the opposite party was being disputed by the applicant and he did not admit that rent was payable by him to the opposite party, it cannot be said that the aforesaid provision would still be applicable. For the purpose of making a Defendant liable to pay the amount under this clause, it is absolutely essential to establish that the rent was due. But if the liability of payment of rent is denied the defence of such a Defendant cannot be struck off. The ground on which the Defendant is asserting that the rent is not payable by him to the landlord is, however, immaterial. What is material for the purpose of attracting the aforesaid clause is that the rent must have been admitted by the Defendant to be due only then it becomes payable to the person entitled to get it. As the power to strike off defence brings about serious consequences the same has to be resorted to only when the requirements of the said provision have been strictly proved. The legislature cannot be imputed with the intention of providing that the defence of a tenant can be struck off despite the fact that he is disputing the claim of a landlord made for the recovery of rent. Accordingly, I am not prepared to accept the submission of the learned Counsel for the opposite party that the liability of the rent must be held to have been admitted irrespective of the adjustment which was being claimed by the applicant. Accepting the above argument would not only destroy the object of the Act but also lead to unjust results. It is, therefore, not correct that what was material to be seen was that the Defendant was a tenant and the moment the tenancy was established at a certain monthly rent the tenant was liable to make the deposit. It is not possible to draw such a conclusion. In my opinion as the applicant did not admit the amount claimed by the opposite party, there is no justification for making an order striking off. The defence. The courts; below committed an error of jurisdiction in doing so.

The other aspect which deserves to be considered is about the future monthly rent. The trial court as well as the learned Judge in revision found that the applicant had not made monthly deposits after 12-4-1973 towards the rent. The fact that the applicant did not regularly deposit monthly rent upto September 1973 has not been disputed by the learned Counsel for the applicant before me. The question, therefore, is whether the trial court had jurisdiction to strike off the defence merely because the future monthly deposits had not been made by the applicant after 12-4-1973. Considering the case one cannot rule out the possibility that had the trial court taken a correct view of the provision of Order 15 Rule 5 of the CPC it might not have directed for striking off the defence of the applicant. The provisions of Order 15 Rule 5 also confers power on a court to grant further time for making the deposit. But the court below misconceiving the scope of its power rejected the application 85-C made by the applicant. Thus the trial court can be deemed to have declined jurisdiction having failed to exercise it. In my opinion the present was a fit case where the applicant should have been granted further time to deposit monthly rent for the period after 12-12-1973. It may be mentioned here that the applicant had filed the application on 19-9-1973 for permission to deposit the rent. If the trial court would have granted the permission to the Plaintiff making the deposit in the sum of Rs. 224/- that would have met the requirement of making the monthly deposits towards the rent.

In the result the revision succeeds and is allowed. The orders of the trial court as well as of the District Judge striking off the defence are set aside. The application made by the applicant 85-C is allowed. He is directed to deposit the amount mentioned therein within a month from the date of the receipt of the record by the court below. The applicant will further deposit damages for use and occupation for the period from 1-5-1973 to 30-6-1975 within two months of the receipt of the record by the trial court. He will also go on making monthly deposits for the period not'' covered by this order in accordance with Order 15 Rule 5 Code of Civil Procedure. No order as to costs.