Shakuntala Devi and others vs Xth Additional District Judge, Allahabad and others

S.U. Khan, J.—Heard learned Counsel for the parties.

This is tenants'' writ petition directed against order of the Trial Court and affirmed by Revisional Court striking off the defence of the tenantspetitioners. Landladies respondents 3 to 5 A.D. Lyall and others have filed S.C.C. Suit No. 73 of 1986 against the petitioners for their eviction from the tenanted accommodation which consists of two kotharies, one veranda and a Courtyard. Rent is Rs. 10/ per month. Eviction was sought on the ground of default. Prayer for payment of arrears of rent has also been made. Two other suits against two other tenants had also been filed by the same landladiesrespondents 3 to 5 and all the three suits were consolidated. However, this writ petition is confined only to S.C.C. Suit No. 73 of 1986. Additional Judge Small Cause Courts, Allahabad struck off the defence of the tenantspetitioners through order dated 16.1.1996. The Additional J.S.C.C. mentioned that landladies'' Counsel admitted that entire rent had been deposited but it was deposited late. The Trial Court held that on the first date of hearing entire rent due till then had been deposited. In respect of the other two suits Trial Court held that there was no default. In respect of the suit in which petitioners are defendants it was found that in the deposit of monthly rent there was delay on several occasions (about ten). Against the order dated 16.1.1996 petitioners filed Civil Revision No. 91 of 1996 which was dismissed on 2.10.1997 by Xth Additional District Judge, Allahabad hence this writ petition.

Against the application filed by landlords for striking off the defence tenants had filed objections and had explained reasons for delay in deposit. However, Courts below held that representations should have been filed within ten days. Application for striking off the defence was filed in the year 1994 and delay in deposit was from 19861987 till 1994.

It may be mentioned that landladies in para 3 of the counteraffidavit have stated that rate of rent is Rs. 15/ per month and not Rs. 10/ per month as alleged by the tenants.

In para 4 of the writ petition it has been stated that the amount deposited by the petitioners was withdrawn by the landlords. In para 5 also it has been stated that "and whenever the rent was deposited by the petitioners, it was withdrawn by them (landladies)."

In para 24 also it has been stated that "the petitioners used to deposit the rent and the landladies were quietly accepting the same by withdrawing it."

In the entire counteraffidavit this allegation that the amount deposited was withdrawn by the landladies has not been denied.

In my opinion when the amount deposited by the petitioners was withdrawn by the landladies, the delay in deposit stood condoned or atleast it should have been condoned by the Courts below.

Moreover Supreme Court in Kailash v. Nanku, 2005 (29) AIC 95 (SC)=2005 (4) 5CC 480 has held that inspite of preemptory language used under Order VIII, Rule 1, C.P.C., still Court has got jurisdiction to take on record written statement even if filed after 90 days from service of summons. However, Supreme Court has further held that in such contingency heavy cost must be imposed. The said authority has subsequently been followed by the Supreme Court in several authorities.

The language of Order XV, Rule 5, C.P.C., is also as peremptory as language of Order VIII, Rule 1, C.P.C. Accordingly, the same principle may be applied to Order XV, Rule 5, C.P.C. also.

Accordingly in my opinion tenants deserve condonation of delay in depositing rent but on heavy cost.

Both the impugned orders are set aside. Delay in making the deposit is condoned on payment of Rs. 5,000/ as cost which shall be paid to the plaintiff''s learned Counsel or deposited before the Trial Court for immediate payment to the plaintiffs on the next date. On the next date entire arrears of rent due till 31.8.2008 shall also be deposited before the Trial Court. In case of default in compliance of any of these conditions this order shall stand automatically vacated and writ petition shall stand dismissed.

Both the parties are directed to appear before the Trial Court on 15.9.2008 and on the said date aforesaid amount shall also be deposited. Trial Court shall decide the suit very expeditiously as it is quite old.

Writ petition is accordingly allowed as above.

Writ Petition Allowed.