Allahabad High Court
Ram Nath vs Ist A.D.J. on 11 December, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 11.09.2013)
(Judgment delivered on 11.12.2013)
Court No. - 21
Case :- RENT CONTROL No. - 241 of 1990
Petitioner :- Ram Nath
Respondent :- Ist A.D.J.
Counsel for Petitioner :- Umesh Kumar Srivastava,Mohiuddin Khan
Counsel for Respondent :- C.S.C.,A.R.Khan,R.V.Singh
AND
Case :- RENT CONTROL No. - 242 of 1990
Petitioner :- Ram Nath
Respondent :- Ist A.D.J.
Counsel for Petitioner :- Umesh Kumar Srivastava,Mohiuddin Khan
Counsel for Respondent :- C.S.C.,A.Ashfaq,A.R.Khan
Hon'ble Sibghat Ullah Khan,J.
Heard Sri M. A. Khan, learned senior counsel assisted by Sri Mohd. Aslam Khan for the petitioner and Sri A.R. Khan, learned counsel for contesting respondent in both the writ petitions, which have been filed by the landlord.
First writ petition arises out of S.C.C. Suit No.29 of 1985 filed by landlord petitioner against tenant respondent No.3, Badri Vishal (Ram Nath Vs. Badri Vishal). J.S.C.C./ Civil Judge Baharaich through order dated 23.03.1987 rejected the application of the landlord for striking off the defence of the tenant under Order XV Rule 5, C.P.C. Revision field against the same in the form of S.C.C. Revision No.54 of 987 was dismissed by I A.D.J., Baharaich on 23.09.1989, hence first writ petition.
As far as second writ petition between same parties is concerned, the same has also been filed by the landlord which arises out of proceedings under Section 30 of U.P. Act N.13 of 1972 initiated by the tenant Badri Vishal (respondent No.2 in the second writ petition). The application was registered as Misc. Case No.177/70/85, Badri Vishal Vs. Ram Nath. Munsif, Baharaich rejected the application and permitted the tenant to withdraw the deposited amount. In one sentence the reason for rejection of the application was given, which was to the effect that "O.P. did not refuse to receive the rent". Against the said order, tenant Badri Vishal filed Civil Revision No.91 of 1997. First A.D.J. Baraich allowed the revision through order dated 23.09.1989. (The revision had been filed under Section 115, C.P.C.) The said order has been challenged through second writ petition.
The Supreme Court in Maiku Vs. Vilayat Hussain, AIR 1986 SC 1645 has held that whether the deposit under Section 30 of the Act (or Section 7-C of the of the old Rent Control Act) is valid or not on the ground that landlord had refused to accept the rent or not is to be seen in the suit which is subsequently filed and not in the application under Section 30 of the act.
In the following authorities, the Supreme Curt has held that if rent is deposited under Section 30 of U.P. Act No.13 of 1972 (or similar provisions in the Rent Control Act of other States) without tendering the same to the landlord then the deposit is not valid.
(i) AIR 1996 SC 729 (arising out Rajsthan Rent Control Act)
(ii) AIR 2002 SC 433 (arising out Rajsthan Rent Control Act)
(iii) AIR 2003 SC 153 (arising out Madras Rent Control Act)
As far as first writ petition is concerned, J.S.C.C. In its order dated 23.03.1987 mentioned that defendant tenant had deposited Rs.2063.85 on 06.12.1985 which included the entire rent from April, 1983 to December, 1985 along with cost, court fees and interest. It was also mentioned that subsequently rent till 31.01.1987 had also been deposited. It was also held that 06.12.1985 was the date of first hearing.
In the plaint, rent from April, 1985 to September, 1985 along with house tax, water tax etc. was demanded. Application for striking off the defence was given on 12.01.1987. Suit was filed on 01.11.1985. The revisional court categorically held that 06.12.1985 was the date of first hearing and on that date complete compliance of Order XV Rule 5, C.P.C. as well as of Section 20(4) of U.P. Act No.13 of 1972 according to which if suit is filed on the ground of default and on the first date of hearing entire rent, cost of the suit and interest is deposited then decree of eviction may not be passed had been made. The main point decided by the revisional court was regarding non-compliance of second limb of Section XV Rule 5, C.P.C. requiring that after making the deposit on first date of hearing deposit of rent for subsequent months during the pendency of the suit should regularly be made. The revisional court found that rent for the subsequent months was deposited in the following manner:
Rent for the period Date of deposit
01.01.1986-28.02.1986 12.02.1986
01.03.1986-31.05.1986 22.04.1986
01.06.1986-31.07.1986 09.07.1986
01.09.1986-30.11.1986 11.11.1986
01.12.1986-31.01.1987 12.01.1987
Under Order XV Rule 5, C.P.C. rent for a month must be deposited by 7th of next month. The revisional court held that apart from first deposit, the other deposits were only two or three days late. Revisional court further held that on several occasions, rent was deposited in advance. Revisional court further held that the amount, which was deposited on the first date of hearing, i.e. Rs.2069.85 (or 2063.85) was in excess and the excess could be adjusted against the delay in making the subsequent deposits. Revisional Court further held that if some default remained, the same could be adjusted against or condoned due to the deposit of rent under Section 30 of the Act.
The Supreme Court interpreting the provisions of Order XV Rule 5, C.P.C. as added by U.P. has held in Vimal Chand Vs. Gopal Agrawal, AIR 1981 SC 1657 that court has discretion not to strike off defence if on facts and circumstances already existing on record, there is good reason for not doing so.
Several other authorities have been cited by both the parties, however in view of the above Supreme Court authority, it is not necessary to discuss the same.
Under the facts and circumstances of the case I find that defence was rightly refused to be struck off. The amount deposited on the first date was in excess , several deposits were made in advance, the delay in deposits except one deposit was trivial and rent had been deposited under Section 30 of the Act, which even if not made after full compliance of the requirement showed bonafides of the tenant. The rent for the period for which it was deposited under Section 30 was again deposited in the suit.
Accordingly, first writ petition is dismissed on merit.
As far as second writ petition is concerned, it need not be decided on merit as the rent, which had been deposited was again deposited in the suit. Accordingly, second writ petition is dismissed as infructuous. Tenant may withdraw the amount ,which he deposited under Section 30 of the Act.
Both the parties are directed to appear before the J.S.C.C. on 16.01.2014. As the suit is quite old hence it must be decided expeditiously.
Order Date :- 11.12.2013
NLY
