Prem Lata vs Sh. M.L. Dhawan and Another

G.C. Garg, J.—Petitioner herein filed a suit for possession of the house in dispute and for the recovery of Rs. 21,600/- on account of rent due. During the pendency of the suit, the petitioner moved an application under Order 15 Rule 5 of the CPC for striking of the defence of respondent No. 2. It was averred that the house in dispute was rented out to respondent No. 1 in February 1986 at a monthly rent of Rs. 600/-. Respondent 1, however, inducted respondent 2 in the said house w.e.f. April, 1986, Respondent 1 in his written statement submitted that he never occupied the house in dispute. Respondents in his written statement, however, admitted that he is direct tenant under the plaintiff at a monthly rent of Rs. 400/- and rent at this rate has already been paid upto August, 1987. It was further pleaded that since respondent 2 has claimed direct tenancy under the plaintiff at the rate of Rs. 400/- per month, he is thus liable to deposit the arrears of rent alongwith interest at the rate of 9% per annum and since he has failed to do so, his defence is liable to be struck off. The application was opposed by respondent No. 2. It was stated that he was always ready and willing to tender/deposit the arrears of rent at the rate of Rs. 400/- per month but since the plaintiff does not admit him as her tenant, he has no occasion to do so. It was further stated that respondent 2 requested the plaintiff many times to accept the rent and issue the receipts but she refused to accept the rent.

Learned trial Court on a consideration of the matter came to the conclusion that the case of the plaintiff is that the house in question was given on rent to defendant No. 1 at the monthly rent of Rs. 600/- and thus in other words, respondent No. 2 is neither a tenant nor a lessee because no lease has been determined against him. Learned trial Court also noticed the respondent No. 2 has asserted that if the plaintiff admits him the tenant on the premises in dispute, he is ready and willing to deposit the rent. Trial Court consequently dismissed the application by order dated 29.1.1993. It is this order which is under challenge in this revision petition.

Learned counsel for the petitioner submitted that notwithstanding the fact that the petitioner has or has not admitted respondent No. 2 as her tenant, still respondent No. 2 was legally : bound to tender/deposit the admitted rent as he himself has admitted to be a tenant under the petitioner on the premises in dispute. Learned counsel for the respondents, on the other hand by reference to a judgment of this Court in Jai Bhagwan v. Chandra Mohan and Ors. 1995 H.R.R. 505, submitted that suit for possession of the shop in dispute was filed in the year 1989 and the provisions of Order 15 Rule 5(1) of the Code in the present form were brought about by notification dated 14.5.1991 and thus these provisions cannot be applied to the present suit which was pending on the date of publication of the said notification and these provisions are prospective in nature. Learned counsel further submitted that in the present case there is a dispute whether respondent No. 2 is a tenant or not, on the premises in dispute as the petitioner has not admitted him as her tenant thereon and therefore, in this eventually, respondent 2 is not liable to deposit the admitted rent at the first hearing of the suit. He in support of his submission relied upon a judgment of this Court in Ram Kumar v. Dr. Virender Kumar 1997 H.R.R. 96.

After hearing learned counsel for the parties I am of the opinion that the contention of learned counsel for the respondents has merit and this petition therefore, deserves to be dismissed. In Jai Bhagwan''s case (supra), it has been held that the provisions of Order 15 Rule 5 as brought about by notification dated 14.5.1991 are prospective in nature and thus would not apply to the suits pending on the said date. In that view of the matter, while concurring with the said view. I find that the petitioner herein has no legal right to move application for striking of the defence of respondent 2.

The petitioner herein filed a suit for possession by way of ejectment on the allegations that the property in dispute was given on rent to respondent 1, but in the wake of the stand of respondent in the written statement that he never occupied the property in dispute and the stand or respondent 2 that he is the direct tenant over the property in dispute under the plaintiff at a monthly rent of Rs. 400/-. she moved an application for striking of the defence of respondent 2. But the petitioner does not admit respondent 2 as her tenant. Even during the course of hearing, learned counsel for the petitioner submitted that respondent 2 is not a tenant of the petitioner. Once that is so, I am clearly of the view that the provisions of Order 15 Rule 15 of the Code have no application to the facts of this case. In this case, even there is also a dispute as to who is in possession of the premises in question as a tenant. It is only a tenant who is required to deposit the amount of rent at the admitted rate during the pendency of the suit. The admission of respondent 2 in his written statement that he is direct tenant on the premises in dispute under the plaintiff at the monthly rent of Rs. 400/- and is always ready and willing to deposit the admitted rent will not give a right to the petitioner to move an application for striking of his defence unless his tenancy is admitted by the petitioner. In this view of the matter, there is no merit in this petition and the same is consequently dismissed. The trial Court shall now proceed to dispose of the matter in accordance with law. No costs.