Shri Kanhai And Anr. vs Prafull Kumar
2013 Latest Caselaw 5865 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 40
 

 
Case :- WRIT - A No. - 27716 of 2013
 

 
Petitioner :- Shri Kanhai And Anr.
 
Respondent :- Prafull Kumar
 
Counsel for Petitioner :- Awadhesh Pratap Singh
 

 
Hon'ble Krishna Murari, J.

Heard learned counsel for the petitioners.

Writ petition arises out of the proceedings of suit no. 14/2011 filed by the plaintiff-respondent before the Judge, Small Causes Court, Allahabad for recovery of arrears of rent and eviction against the petitioner-tenants. Suit was filed on the allegation that the petitioner-defendants were tenants on a monthly rent of Rs.200/- excluding water tax and the tenancy was month to month beginning from first day of every calender month. It was further pleaded that tenant was defaulter in payment of rent for more than four months and despite service of notice, the arrears was not paid, as such, the tenancy was terminated. Suit was contested by the petitioner-tenants by filing written statement denying the plaint allegation. It was pleaded that originally the house in dispute was in tenancy of their father on a monthly rent of Rs.10/-, which was duly paid and after his death, petitioners became tenants and had regularly paid the rent, the receipts whereof were not issued. It was further pleaded when the respondent-landlord refused to accept the rent it was deposited under Section 30 of the Act No. XIII of 1972 (in short the 'Act') and there was no outstanding rent. During the pendency of the proceedings, the respondent-landlord moved an application under Order XV Rule 5 C.P.C. alleging that the tenants have made a statement in paragraph 14 of the written statement that rent is being deposited by tender in the court but but neither any statement of account has been filed nor copy of the tender. Trial court after considering the pleadings of the parties and evidence brought on record allowed the application on a categorical finding that after filing of the suit, tenants failed to make any deposit in the court and as such, has failed to comply with the provision of Order XV of Rule 5 C.P.C. Tenant-petitioners went up in revision. Revisional court has also affirmed the finding that the tenant-petitioners after putting in appearance on 1.10.2011 has failed to deposit any rent in accordance with the provision of Order XV Rule 5 C.P.C. in the court where the proceedings of the suit were pending and the deposit, if any, made for this period under Section 30(1) of the Act cannot be held to be a valid deposit for the purpose of satisfying the requirement of Order XV Rule 5 C.P.C. and accordingly dismissed the revision.

It has been urged by learned counsel for the petitioners that both the courts below have committed manifest error of law inasmuch as the provision of Order XV Rule 5 CPC become applicable only when the tenant admits the rent to be due and since the arrears of rent were categorically denied the said provision has wrongly been made applicable to the present case. It has further been submitted that entire rent having been deposited under Section 30 of the Act there was no outstanding arrears and the tenant was entitled to be extended the benefit and the defence has wrongly been struck off.

I have considered the argument advanced by learned counsel for the petitioners and perused the record.

Section 20 of the U.P. Act No. XIII of 1972 reads as under :

?Section 20 (1). Bar of suit for eviction of tenant except on specified grounds. - (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:

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(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

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(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

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(6) Any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits.?

Section 30 of the Act reads as under :

?Section 30. Deposit of rent in court in certain circumstances. - If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.

(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building.

(3) The deposit referred to in sub-section (1), or sub-section (2), shall be made in the Court of the Munsif having jurisdiction.

(4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf.

(5) On a deposit being made under sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person.

(6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2).?

Order XV Rule 5 CPC reads as under :

Striking off defence for failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence.

Explanation 1.- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2.- The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account.

(2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."

Section 20 of the Act deals with bar of suit for eviction of tenant except for specified grounds. Sub-section (2) of Section 20 provides that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay to the landlord within one month from the date of service upon him of a notice of demand. Section 20(4) provides that in the event of filing of such a suit if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposit in court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon @ 9% per annum and the cost of the suit, after deducting therefrom any amount already deposited by the tenant under Section 30(1) of the Act, the Court may in lieu of passing a decree for eviction instead pass an order relieving the tenant against the liability for eviction on the ground of arrears of rent.

Section 20(3) of the Act was omitted from the Statute book by U.P. Civil Laws Amendment, 1972 which came into force from 20th September, 1972 and instead a similar provision was incorporated in the Order XV CPC in order to bring within its scope of all the buildings and not merely those covered by the Rent Act.

While analyzing the provision of Order XV Rule 5 CPC Hon'ble Apex Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal, AIR 1981 has observed as under :

?It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. 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 and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, the court may subject to the provisions of sub-rule (2) strike off his defence."

A perusal of provision of Order XV Rule 5 CPC goes to show that it is divided in two parts. The first part deals with the deposit of entire amount admitted by the defendant to be due together with interest on or before the first hearing of the suit. Whereas the second part deals with the deposit of the monthly amount due which deposit is to be made throughout the continuation of the suit. Explanation-II to Order XV Rule 5 (1) CPC provides that entire amount admitted by the defendant to be due means the gross amount, whether as rent or compensation for use and occupation after deducting taxes if any paid in respect of the building to the landlord/lessor's account and the amount if any deposited under Section 30 of the Act. Whereas the expression monthly amount due has been defined in Explanation-III to mean the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rent. This only permits to make deduction of the amount deposited towards the taxes to the local authority in respect of the building.

A perusal of the provision further goes to show that the legislature while defining 'monthly amount due' required to be deposited throughout the continuation of the suit has deliberately excluded the deduction of any amount deposited under Section 30 of the Act. Therefore, it can be safely inferred from the plain reading of two parts of Order XV Rule 5 CPC that the legislature in its wisdom provided for deduction of the amount deposited under Section30 of the Act from the deposit to be made on or before the first date of hearing whereas deliberately omitted to make any provision for such deduction from the monthly amount required to be deposited throughout the continuation of the suit.

What therefore necessarily follows from analyzing of the provision is that when the entire amount admitted by the defendant-tenant to be due is deposited on or before the first date of hearing of the suit, any amount, if deposited under Section 30 of the Act, can be dedeucted or adjusted from the said deposit but while depositing monthly amount due throughout the continuation of the suit any deposit made under Section 30 of the Act is not liable to be adjusted.

The view taken by me finds support from a Division Bench judgment of this Court in the case of Haider Abbas v. Additional District Judge and others, [2006(1) ARC 341] wherein specific question referred ?Whether the deposit made under Section 30(1) of U.P. Act No. XIII of 1972 after the date of service of summons of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Order XV Rule V C.P.C.?? was answered as under :

?We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the Act cannot be deducted.?

The Hon'ble Apex Court in the case of Atma Ram v. Shakuntala Rani, (2005) 7 SCC 211, has also held as under :

?"It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.

The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.?

In the case in hand, it is undisputed that tenant has failed to make deposit monthly amount due in the court where the proceedings were pending. The two courts below have recorded a finding of fact in this regard which learned counsel for the petitioner has failed to demonstrate to be vitiated on any count. Even the entire amount towards the rent was deposited by the tenant under Section 30 and there was no outstanding still he was under an obligation to deposit the monthly rent due before the court where the suit was pending and excess amount even if deposited under Section 30 of the Act was not liable to be deducted from the said deposit and thus the tenant was clearly in default and his defence was rightly struck off.

In view of the aforesaid facts and circumstances and the settled legal position, there is no infirmity or illegality in the impugned orders which may require any interference.

Writ petition fails and accordingly stands dismissed in limine.

Order Date :- 17.9.2013

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