HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 58 Case :- MATTERS UNDER ARTICLE 227 No. - 6401 of 2015 Petitioner :- Kedar Nath Respondent :- Waqf Sheikh Abdullah Charitable Madursa And 4 Others Counsel for Petitioner :- Atul Dayal Counsel for Respondent :- Anand Mohan Lal Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
On the request of the learned counsel for the parties, the petition is being decided at the admission stage without calling for counter affidavit.
The tenant/applicant has approached the Court assailing order dated 22 September 2015 passed by the revisional court/Additional District Judge, Court No. 12, Allahabad in Civil Revision No. 101 of 2012 (Kedar Nath and others Versus Waqf Sheikh Abdulla and others) arising from order dated 31 January 2012 passed by the Judge Small Causes Court, Allahabad in Original Suit No. 22 of 1999, whereby, the application under Order XV Rule 5 C.P.C. filed by the first respondent has been allowed.
The premises No. 205/46, Minhajpur, Dr. Katju Road, Allahabad belongs to the frist respondent, a suit for eviction, arrears of rent and damages was instituted. During the pendency of the suit, an application under Order XV Rule 5 C.P.C. was filed with the allegation that the suit is of 1999 but no amount was deposited on the first date of hearing nor regular deposit was made, thereafter. The applicant contested stating that the entire amount was deposited on the first date of hearing. The trial court allowed the application, struck off the defence of the applicant. The revisional court affirmed the order passed by the trial court.
The learned counsel for the applicant would submit that the courts below have failed to record the first date of hearing, written statement was filed on 13 October 2008 and on the said date a sum of Rs. 4000/- was deposited which included the rent from January 1996 to September 2008, interest and expenses, further, it is sought to be urged that even presuming that there was some delay in depositing the subsequent sums, even then the application under Order XV Rule 5 could not have been allowed, admittedly the respondent-landlord received the entire sum. It is, therefore, submitted that the purpose of Order XV Rule 5 is to ensure the payment of the rent and not being a penal provision to punish the defendant.
Learned counsel appearing for the respondents, in rebuttal would not dispute that the entire sum was deposited but would submit that the deposit was inadequate and irregular, therefore, courts below were justified in allowing the application.
Rival submission fall for consideration.
The Supreme Court in Bimal Chand Jain Versus Sri Gopal Agarwal1, on considering the provisions of Order XV Rule 5, as applicable to U.P., observed that the sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest, thereon, at the rate of nine per cent per annum, whether or not he admits any amount to be due. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off.
Sub-rule (1) obliges the court to strike off the defence which is in the nature of a penalty. A serious responsibility, therefore, rests on the court in the matter, the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so.
The word "may" in sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. If on the facts and circumstances already existing on the record it finds good reason for not doing so, the court is not obliged to strike off the defence, merely in the absence of such representation under sub-section(2).
This Court in Shiv Balak Singh Versus A.D.J., XI, Lucknow2, held that the provision of Order XV Rule 5 is discretionary.
"7. 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 Pramod Mehrotra and others Versus Ram Shankar Chaurasia and others3 where the amount was deposited with some delay, this Court relying upon Bimal Chand Jain (supra), held that discretion should be exercised not to strike off the defence where the entire amount has been paid with some delay.
Again in Sudhir Kumar Gupta Versus Dr. S.K. Raj and another4, the Court observed that the purpose of enacting the provision Rule 5 Order XV was not to give a lever to the landlord to get a tenant punished for insignificant lapses. The purpose was merely to ensure that the dues of the landlord are properly secured and he can get his rent regularly even though the litigation may continue.
In Pyare Lal Versus Distrit Judge, Lucknow and others5 wherein, the Court allowed the deposit of rent upon imposing cost.
In Dr. Ram Prakash Mishra Versus Additional District Judge, Etah and another6, it was observed that the question whether the deposit is valid or not is relevant for determining the question whether the tenant could be held to be defaulter or not in the eye of law, but so far as Order XV, Rule 5 C.P.C. is concerned, the only requirement is that the tenant has to deposit the entire amount on or before the first hearing of the suit. If the deposit has been made under section 30 of Act 13 of 1972 then it will ensure to the benefit of the tenant.
The provisions of Order XV Rule 5 is discretionary, the court is not bound to strike off the defence in every case of mere technical or bonafide default. The provision should not be interpreted in such a way that the tenant should be trapped to be evicted. (Refer-Vinod Chandra Kala Versus Premier Precisions Tools Manufacturing (P). Ltd.7; Bhawani Vastrya Bhandan Versus Smt. Sahodra Devi8).
Sri Anand Mohan Lal, learned counsel for the respondent, placed reliance upon the decision rendered by the Supreme Court in Yusufbhai Noormohammed Jodhpurwala Versus Mohamed Sabir Ibrahim Byavarwala9, wherein, it is contended that the provisions of Order XV Rule 5 is mandatory, any default, consequence would follow. The facts of the case are not applicable in the present case as therein the Court was dealing with the provisions of Section 12(3)(b) of the Bombay Rent Act. Similarly, in Saroj Tripathi (Smt.) and another Versus Guru Prasad and others10, the facts are entirely different, the scope of Order XV Rule V was not considered. In Mohd. Sayeed and others Versus Shahanshah Alam (Sri and another11, the facts of the case is distinguishable.
In the facts and circumstances of this case, the court below have not recorded a finding regarding the date of hearing of the suit and proceeded to strike off the defence taking into account the intermittent delay in depositing the subsequent sums by the applicant. It is not disputed by learned counsel for the respondent that the entire sum due has already been deposited. In these circumstances, I am of the view that the impugned orders cannot be sustained, accordingly, the petition is allowed.
The impugned orders are set aside.
No order as to costs.
Order Date :- 23.11.2015 kkm