Thakur Prasad alias Bholanath vs Gur Prasad

K.C. Agrawal, J.—Two points arise for decision in the present case. The first was whether the amendment made by Section 7 of U.P. Civil Laws (Reforms and Amendment) Act, 1976 (U.P. Act No. 57 of 1976), was ultra vires the Central Act No. 104 of 1976. A Full Bench of this Court had an occasion to consider this question in Pt. Rishikesh v. Smt. Salma Begum 1919 AWC 47. The Full Bench held that Order XV Rule 5 CPC was not ultra vires. In view of the decision given in that case, the first argument has no substance.

The second question is whether the defence was liable to be struck out because the Defendant did not deposit the monthly rent due within a week of the date of its accrual. The suit had been filed by the Plaintiff-opposite party on the allegation that the Defendant-applicant was his tenant. The Defendant however, filed a written statement and denied that he was the tenant of the Plaintiff opposite party. He claimed that there was no relationship of landlord and tenant between him and the Plaintiff-opposite party.

Now the question that arises for decision is whether Order XV Rule 5 CPC can be applied even to a case where the relationship of landlord and tenant does not exist. A close reading of Order XV Rule 5 CPC would indicate that the provisions of the said rule will apply only to a case where a suit for eviction of a lessee is filed by a lessor after termination of his lease. Necessarily, the relationship of lessor and lessee was required to be established. For taking the benefit of Order XV Rule 5 CPC for striking out the defence on the ground that the arrears of rent had not been deposited, it was essential that the relationship of lessor and lessee existed. The Courts below, however, committed an error in holding that such a relationship need not be established for insisting upon the Defendant to make the monthly deposit. The view of the revising authority is certainly in conflict with the language employed in Order XV Rule 5 Code of Civil Procedure.

According to the aforesaid provision, the duty to deposit future rent is cast upon the lessee and not on a person who does not admit himself to be a tenant. The sentence begins with the words:

He shall throughout in continuation of the suit regularly deposit the monthly amount due within a week ... ... ... ...

This shows that the word "he" signifies the word "lessee" who had been talked of earlier. With respect to the monthly deposit, the relationship of landlord and tenant was necessary to be established before the termination of the tenancy. In the instant case, therefore, the revising authority was not right in holding that the failure to deposit the monthly rent could be taken as a ground for striking out the defence.

In a case like the present, it is always necessary for a court to determine the question of relationship of landlord and tenant before striking out the defence. If the court finds that the plea of the Defendant to strike off the defence is untenable and that such a relationship existed, it would be justified in recording a finding to that effect and thereafter in making an order striking off the defence under Order XV Rule 5 CPC If such a course is adopted, that would discourage a frivolous plea which may be taken to avoid consequences of Order XV Rule 5 Code of Civil Procedure. It, however cannot also be disputed that without determining the question of relationship of landlord and tenant, no order striking out the defence can be made. For what I have said above, it is necessary to find out such a relationship of tenant and landlord.

For all these reasons, the revision succeeds and is allowed. The orders of the two courts below are set aside, and the case is sent back to the Judge Small Causes for deciding the suit afresh. It will be open to the Judge Small Causes to decide the question of relationship of landlord and tenant and thereafter if he finds that compliance of Order XV Rule 5 CPC has not been made out, he may struck off the defence. There shall be no order as to costs.