Shiv Balak Singh vs Additional District Judge, XI

Sibghat Ullah Khan, J.—Heard learned Counsel for both the parties.

This is landlord''s writ petition arising out of S.C.C. Suit No. 140 of 1997, Mahadeo Singh v. Smt. Sana Devi. The suit was filed for eviction of the tenant respondent No. 3, Smt. Sona Devi for eviction from the tenanted accommodation consisting of a room, rent of which is Rs. 40/- per month. The room was let out by Mahadeo, father of the petitioner to late Raja Ram, husband of defendant respondent No. 3. The suit was filed for eviction on the ground of default and for recovery of arrears of rent. J.S.C.C., Lucknow through judgment and decree dated 10.5.2007 held that tenant was not defaulter as after receiving the notice she had sent the rent through money order, which was refused by the land-lord, however the suit for recovery of arrears of rent was decreed. Against the said decree, landlord petitioner filed S.C.C. Revision No. 26 of 2007. A.D.J., Court No. 14, Lucknow through judgment and order dated 13.2.2009 dismissed the revision, hence this writ petition.

The main point argued by learned Counsel for landlord petitioner is that the Courts below wrongly refused to strike off the defence of the tenant.

In the plaint, it was asserted that rent was not paid since November, 1996. The defendant pleaded that as Mahadeo refused to accept the rent of November, 1996, hence it was sent through money order on 16.12.1996. Thereafter, rent of November and December, 1996 was sent through money order on 16.1.1997. Thereafter, rent from November 1996 to January, 1997 was sent through money order dated 17.2.1997. All these money orders were refused.

Notice of termination of tenancy and demand of rent was sent on 18.3.1997. It was also alleged by the tenant that on 2.4.1997, rent from November, 1996 was sent. From the perusal of the money order coupons and receipt containing refusal of Mahadeo, the Courts below held that the rent was in fact sent but was refused to be accepted.

Issue No. 5 related to Order XV, Rule 5, C.P.C. The tenant defendant on 23.4.1999 sought permission to deposit the rent through tender, however the tender was accepted/passed on 26.8.2000 and thereafter the rent was deposited. Written statement was filed on 5.2.1998. The Trial Court held that tender was submitted when evidence was going on, hence deposit was not made on the first date of hearing. Thereafter, the Trial Court held that before filing of the suit tenant had sent the rent through money order, which was refused and tender was also submitted even though quite late, which showed that the intention of the tenant was to deposit the rent and after 26.8.2000, the rent was constantly deposited. On this point, Lower Revisional Court in para-12 of its judgment held that no application was filed by the landlord for striking off the defence of the tenant The Lower Revisional Court fully agreed with the view of the Trial Court.

Provision of striking off the defence under Order XV, Rule 5, C.P.C. (as added by U.P.) is discretionary as held by the Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal, . Similar view has been taken in respect of similar provision of West Bengal Act in Food Corporation of India, etc. etc. Vs. State of Kerala, . In this regard reference may also be made to Smt. Kamla Devi Vs. Sh. Vasdev, .

Even though technically at the time of arguments also, plea of Order XV, Rule 5, C.P.C. could be raised, however in normal course such an application should have been filed (and is normally filed) before the start of the evidence.

In any case in exercise of writ jurisdiction it is not appropriate to interfere in the exercise of discretion by the Courts below refusing to strike off the defence of the tenant. From the perusal of record, it is abundantly clear that rent was repeatedly (every month) sent by the tenant but refused by the land-lord. In such situation, it would be quite unjust and harsh to brush aside the said evidence in the form of public documents (money order receipts and coupons) and evict the tenant holding that neither rent was paid nor tendered. Accordingly, I do not find any error in the impugned orders.

However, rent of Rs. 40/- per month for a room in Lucknow is rather ridiculous. It is virtually as well as actually no rent.

On 10.4.2013, when arguments were heard and judgment was reserved following order was passed in this writ petition: Heard learned Counsel for both the parties.

Judgment reserved.

On inquiry from Court, learned Counsel for tenant respondent states that in case matter is decided in favour of the tenant, tenant is ready to pay reasonable rent from the date of the judgment, which may be fixed by the Court.

Accordingly, writ petition is dismissed. However tenant is directed to pay rent to the landlord respondent from July, 2013 onwards at the rate of Rs. 600/- per month.