Natthilal Khandelwal and Others vs Dharmendra Kumar and Another

Satish Chandra, C.J.—The opposite parties instituted a suit for ejectment and recovery of arrears of rent in 1970. In March 1973, they made an application that the defence be struck off under Order XV, Rule 5, Code of Civil Procedure. This application was dismissed on 18th April, 1975, on the finding that the Defendants do not admit that they were tenants or that they were liable to pay any rent. Subsequently, on 21st August, 1978, the Plaintiffs again applied for, inter alia, for defence being struck off. This application was allowed. Aggrieved, the Defendants have come to this Court in revision u/s 25, Provincial Small Cause Courts Act.

Learned Counsel submits that the order dated 18th April, 1975, operates as res-judicata in the present proceedings.

I am unable to agree. When the order dated 18th April, 1975, was passed Order XV, Rule 5 CPC required the Defendants to deposit the admitted amount of rent, and it was on this basis that the application was dismissed on 18th April, 1975. By the U.P. Civil Laws (Reforms and Amendment) Act, NO. 57 of 1976, Order XV, Rule 5 CPC was repealed and re-enacted. After re-enactment the requirement of the rent being admitted was partially given up. The provision required the Defendants to pay the monthly amount due within a week of the date of its accrual, and continue to deposit the monthly rent in addition to depositing the entire amount of arrears which was admitted by them to be due. After the amendment the law provided that the arrears were to be deposited provided the Defendants admitted them to be due. But so far as the current period is concerned, the Defendants were made liable to deposit the rent within a week of the date of its accrual, whether they admitted it or not.

It is obvious that if the Defendants did not admit the rent, but the Plaintiffs claimed that the rent was due, the court was liable to decide this question while dealing with the application for striking off the defence under Order XV, Rule 5, Code of Civil Procedure. The court below went into this question, and came to the conclusion that the Defendants were tenants and that rent was due payable by them month by month. Since the Defendants had failed to deposit anything ever since the institution of the suit, the defence-was struck off under Order XV. Rule 5, Code of Civil Procedure.

In view of this change in law, the order dated 18th April, 1975, cannot operate as res-judicata.

Learned Counsel submitted that the amended Order XV, Rule 5, CPC will not apply to the present suit, which was filed in 1970 and was pending ever since.

Section 36 of the Amending Act gives a complete answer to this submission. This Section provides:

A civil suit, or proceeding to which the Code of Civil Procedure, 1908, applies, pending on the date of commencement of this Act shall be disposed off in accordance with the provisions of the said Code as amended by this Act.

It is thus clear that the amended Order XV, Rule 5 applies to pending suits. In view of the change of law in material particulars, the earlier order could not be held to operate as res-judicata. The application moved on 21st August, 1978, was maintainable, and the court was justified in deciding it on the merits.

Learned Counsel invited my attention to Ladly Prasad Vs. Ram Shah Billa and Others, . This authority dealt with Order XV, Rule 5, as it was prior to the amendment in 1976. At that time the requirement was that the rent must be admitted to be due. In that context the Court ruled that the Defendant did not admit that any amount was due as rent. It was not open to the Court to go into the question and decide it. Now the position is different. The Defendants are bound to deposit the monthly rent as and when it falls due, irrespective of their admitting it. Naturally, if a dispute arises, the court is liable to decide it in order to pass a suitable order on the application for striking off the defence.

In the end, Learned Counsel for the applicants submitted that one of the main issues in the suit is whether the Defendants are the tenants and any rent was due payable by them. The finding recorded in these proceedings would prejudice the defence.

The argument is misconceived., The finding has been recorded in order to dispose off the application under Order XV, Rule 5, Code of Civil Procedure. The finding is based upon the evidence on the record available at this stage. The suit has not yet been fixed up for final hearing. The issue on the merits of the suit will be decided on the evidence that may then be available. This finding will not of necessity operate as res-judicata in the disposal of the issue on the merits of the suit. The impugned order cannot be interfered with on this ground either.

In the result, the revision fails and is accordingly dismissed with costs.