Nattha Singh and Others vs Raj Kumar

Umesh Chandra Dhyani, J.—Since the subject-matter of the aforesaid Civil Revisions is similar, therefore, all are being decided together by this common judgment for the sake of brevity and convenience. All the aforesaid Civil Revisions No. 60/2015, 61/2015, 62/2015 and 63/2015 have been filed against the common judgment and order dated 8.5.2015 passed by the Judge, Small Causes Court/Additional District Judge, Khatima, District Udham Singh Nagar in SCC case Nos. 2/2012, 11/2011, 13/2011 and 12/2011 respectively.

Heard learned Counsel for the parties and perused the impugned judgment and order dated 8.05.2015 whereby the application under Order XV, Rule 5, C.P.C. filed on behalf of the plaintiff (respondent herein) was allowed by striking-off the defence of the defendants (revisionists herein). Admittedly, the rent is not being deposited by the defendants-tenants before the Judge, Small Causes Court, but the same is being deposited under section 30 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act No. 13 of 1972). The question for consideration of this Court is - whether the deposition of rent under section 30 of Act No. 13 of 1972 can be considered while deciding an application under Order XV, Rule 5, C.P.C. or not?

Learned Counsel for the revisionists placed reliance upon a decision of Hon''ble Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal, . The relevant portion of the said judgment will be dealt with in the subsequent paras.

Learned Counsel for the revisionists also relied upon a decision of Hon''ble Allahabad High Court in Pradeep Kumar v. 5th Additional District judge, Etah and others , 1997 (31) ALR 108 , whereby it was observed as under:

"2. It has been held by the Supreme Court that even if the amounts are not deposited as required by Order XV, Rule 5, C.P.C., the Trial Court is not bound to strike-off the defence vide 1981 ARC 463 (SC), AIR 1987 SC 1011 and AIR 1985 SC 965 etc. In my opinion since striking-off the defence is a very serious step because it denies opportunity of hearing to the defendant, it should be done very sparingly. Hence, I set aside the orders dated 29.3.1989 and 15.2.1991 but I direct that the suit No. 29 of 1985 be decided by the Trial Court within six months of production of copy of this order."

Learned Counsel for the revisionists also placed reliance upon a decision of Hon''ble Allahabad High Court in Mohd. Islam v. 3rd Additional District Judge, Allahabad and others , 1999 (36) ALR 76 , wherein it was observed:

"3. It is true that under Order XV, Rule 5, C.P.C. the rent should have been deposited in the Court where the suit is pending but the fact still remains that tenant has deposited rent under section 30 of the Act which the landlord can lift. According to the petitioner this was done under the mistake of the Counsel. In view of the fact, I do not think that the Courts below are justified in striking of the defence.

The judgment of the Courts below dated 23.11.1994 and 5.8.1995 are hereby quashed. The tenants are directed to deposit in future the month to month rent in the Court of Judge Khafifa, Allahabad. It is also made clear that this will not prejudice the right of parties which were accrued to then under any other provision. The suit is old one. It may be decided expeditiously."

Learned Counsel for the revisionists further placed reliance upon a judgment of Hon''ble Allahabad High Court in Pyarey Mian v. VIIIth Addl. District Judge, Bareilly, and others , 2001 (45) ALR 729 , wherein it was held as under:

"2. The Trial Court struck off the defence on the ground that monthly deposit were not made within time and also on the ground that these deposit have been made under section 30 of the Rent Control Act before Munsif City, Bareilly.

The Revisional Court gave a finding that it is true that sometime rent of two or three months deposited at a time. This is the technical ground and it cannot be said that rent was deposited beyond time so as to strike off the defence. But according to Revisional Court, this rent was deposited under section 30 of the Act and this cannot be treated as rent under Order XV, Rule 5, C.P.C. May be the deposit of rent under section 30 cannot be treated as deposit under Order XV, Rule 5 but the fact still remains that the tenant had deposited the rent in some proceedings which the tenant has right to lift. It cannot be said that tenant was acting mala fide."

(Emphasis supplied)

Last but not the least, learned Counsel for the revisionists relied upon a decision of Hon''ble Allahabad High Court in Mahesh Kumar Vs. Shibbo Singh and Another, , wherein it was held:

"17. Interest of justice requires, that judicious discretion should be exercised by the Court while striking off the defence. Revisional Court had committed an error by allowing the revision of the landlord without judiciously considering the facts and circumstances of the case."

On the other hand, learned Counsel for the plaintiff-respondent placed reliance upon two decisions, one of Hon''ble Supreme Court in Atma Ram Vs. Shakuntala Rani, , and another of Hon''ble Allahabad High Court in Haider Abbas vs. Additional District Judge (Court No.2006 (62) ALR 552 .

In Atma Ram''s case (surpa), the question that arose before the Hon''ble Supreme Court was - whether the appellant tenant defaulted in payment of rent inasmuch as he had not paid or tendered or deposited the rent for the period in question in the manner required by law. The question also arose-whether the deposition of rent under the Punjab Act could be construed to be a valid deposit under the Delhi Rent Act. It was held that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so, he cannot take advantage of the benefit conferred by such a provision. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by section 27 of the Delhi Rent Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.

On perusal of the aforesaid decision of Atma Ram''s case, this Court finds that it is distinguishable from the facts of the present case, inasmuch as, in Atma Ram''s case (supra), the rent was deposited by the tenant under the Punjab Act, which was repealed paving way for the Delhi Rent Act, whereas in the instant case, both Order XV, Rule 5, C.P.C. as well as Act No. 13 of 1972 are existing provisions. It is an admitted fact that the revisionists had deposited the rent under section 30 of the Act No. 13 of 1972, instead of depositing it under Order XV, Rule 5, C.P.C.

The judgment rendered by Hon''ble Allahabad High Court in Haider Abbas''s case (supra) relies upon the decision of Atma Ram''s case (supra). Hon''ble Allahabad High Court maintained that the Trial Court has no discretion but must strike off the defence. The matter came up before the Hon''ble Supreme Court in defendant''s Special Leave to Appeal against the said order of Allahabad High Court. The question before the Hon''ble Supreme Court was-whether in a suit for ejectment of a lessee and for recovery of arrears of rent, does the Court enjoy any discretion not to strike off the defence in case the defendant has defaulted in depositing the rent and has also failed to make any representation within the terms of Order XV, Rule 5, C.P.C.?

Rule 5 of Order XV, C.P.C. was enacted by the U.P. Civil Laws (Amendment) Act 1972. It provided that unless the defendant deposited the admitted rent or compensation at or before the first hearing of the suit and also deposited the monthly rent regularly, his defence was liable to be struck off. There was a further provision entitling a defendant to make a representation and obtain further time to make the deposit. The Rule was repealed by U.P. Act No. 57 of 1976 and was re-enacted as follows:

"Striking off defence an 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 cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit 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 1 ... ... ...

Explanation 2 ... ... ...

Explanation 3 ... ... ...

(2) 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 ten days of the first hearing or of the expiry of the week referred to in sub-section (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 deductable on any account the Court may require the plaintiff to furnish security for such sum before he is allowed to withdraw the same".

Three Judges Bench of Hon''ble Supreme Court in Bimal Chand Jain''s case (supra), has held as follows:

"6. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the Court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the Court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the Court against his defence being struck off. If a representation is made the Court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the Court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the Court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the Court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vests power in the Court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand v. Pravin Gupta, (Civil Revision No. 356 of 1978, dated 30.10.1980 by Allahabad High Court). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of Clause (1) of Rule 5 of Order XV."

Atma Ram''s decision though rendered in 2005 is of two Judges Bench, whereas Bimal Chand Jain''s decision is of three Judges Bench. Moreover, Atma Ram''s decision has not considered the decision of Bimal Chand Jain.

It is true that under Order XV, Rule 5, C.P.C., the revisionists should have deposited the rent in the Court (JSCC) where the suit was pending, but the fact still remains that the tenants have deposited the rent under section 30 of the Act No. 13 of 1972, which the landlord can withdraw. According to the revisionists, this was done under some mistake. In view of the fact, this Court thinks that the Court below was not justified in striking off the defence.

The impugned judgments and orders of common date, i.e., 8.5.2014 passed in SCC cases in question are hereby set aside. The tenants are directed to deposit month to month rent in future in the Court of Judge, Small Causes Court/Additional District Judge, Khatima, District Udham Singh Nagar. It is also made clear that this will not prejudice the rights of the parties, which have accrued to them under any other provision of law. With the above observations, the civil revisions are allowed.