Naresh Kumar vs Mohd. Muqeem Ansari

Hon''ble Prakash Krishna, J.—Challenging the order dated 12th July, 2010 whereby the court below has refused to strike off the defence of the defendant-tenant under Order XV Rule 5 of the Code of Civil Procedure, present revision has been filed u/s 25 of Small Causes Court Act. Heard Sri Rahul Sahai, learned counsel for the applicant. None is present on behalf of the opposite party nor the opposite party has filed any appearance. Service of notice on opposite party is reported to be sufficient.

The relationship of landlord and tenant between the parties is not in dispute. S.C.C. Suit No. 35 of 2009 was instituted for recovery of arrears of rent and ejectment etc stating that the defendant-tenant is in arrears of rent since 14th September, 2007. An application under Order XV Rule 5 of the CPC was filed by the plaintiff on the ground that the defendant-tenant has not deposited any rent/damages as required under Order XV Rule 5 of the Code of Civil Procedure, during the pendency of the suit. The defendant-tenant came out with a case that he is not in arrears of rent as he has advanced a sum of Rs. 27,000/- to the landlord.

The court below by the order under revision has held that since the defendant-tenant is disputing the liability to pay the rent on the ground that a sum of Rs. 27,000/- has been given in advance, therefore, the defence cannot be struck off.

Learned counsel for the applicant submits that under Order XV Rule 5 of the Code of Civil Procedure, the defendant-tenant is required to deposit arrears of rent as admitted in the written statement as also the damages for use and occupation of the premises in question for subsequent months till the disposal of the suit. Admittedly, the tenant has not deposited any amount in the suit.

Considered the aforesaid submissions of the learned counsel for the applicant.

A bare perusal of the aforesaid provision clearly shows that the aforesaid provision can be divided into two compartments. The defendant tenant, in a suit by a lessor for his eviction after determination of his lease and for recovery from him of rent or compensation for use and occupation shall; (1) at or before the first date of hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of 9 per cent per annum; (2) and the tenant shall through the continuance of the suit regularly deposit the monthly amount due within a week from the date of its accrual. It has been further provided that in the event of any default of either of the deposits stipulated, above, the Court may, after giving an opportunity of hearing and subject to the provisions of sub-rule (2) strike off his defence. The Explanation-II to Order XV, Rule 5, CPC defines the expression "entire amount admitted by him to be due".

A plain reading of Explanation-II makes it clear that while calculating the gross amount to be deposited under Order XV, Rule 5(1), a tenant is entitled to make the following deductions only:

(1) The taxes, if any, paid to a local authority in respect of building on a lessor''s account, and (2) the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him.

The object of the aforesaid explanation is loud and crystal clear. It puts beyond pale of any doubt permissible deductions, which can be made by a lessee while making a deposit under Order XV, Rule 5, CPC. The expression "no other deduction" makes the position clear beyond doubt that except those amounts which are specified to be deducted, tenant cannot claim any other deduction. To put it differently, the Explanation-II has been enacted with a view to make the things clear that except the aforesaid specified deductions, no other deduction/set of/or adjustment is admissible for the purposes of deposits under Order XV, Rule 5, CPC.

The controversy involved in the case in hand is squarely covered by a decision of this Court in P.D. Seth Versus Smt. Krishna Devi, 2006 (3) ARC 69. In the case on hand, there is no such acknowledgment in the writing of landlord that he has received a sum of Rs. 27,000/- from the tenant therefore, the defendant is not absolved from his obligation to deposit the monthly damages. He cannot claim adjustment of Rs. 27,000/- in view of the Explanation-II.

A bare perusal of the written statement would show that the defendant-tenant has pleaded that he has paid a sum of Rs. 27,000/- . It is not clear that the said advance of money was taken under some agreement. For the purpose of consideration of Order XV Rule 5 of the CPC the said plea cannot be taken into consideration. If the said plea has not been taken into consideration obviously, the tenant has failed to comply with the provisions of Order XV Rule 5 of the Code of Civil Procedure. The tenant has not deposited any amount during the pendency of the suit. In view of the above, Civil Revision succeeds and is allowed. The order dated 12th July, 2010 passed by Additional District Judge, Court No. 10, Bareilly in SCC Suit No. 35 of 2009 is hereby set aside. Resultantly, the defence of the tenant stands struck off. The trial court shall now proceed to decide the suit expeditiously, preferably within a period not more than six months from the date of presentation of certified copy of this order.