Smt. Anjoo Chaturvedi vs Shri Aavadhesh Kumar Srivastava ...
2017 Latest Caselaw 2798 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 5.7.2017
 
Judgment delivered on 31.7.2017
 

 
Court No. - 2
 

 
Case :- WRIT - A No. - 56490 of 2016
 

 
Petitioner :- Smt. Anjoo Chaturvedi
 
Respondent :- Shri Aavadhesh Kumar Srivastava And 2 Ors.
 
Counsel for Petitioner :- Dinesh Kacker,Vinay Kumar Khare
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Vinay Khare, learned counsel for the petitioner, who has put in appearance today and filed a rejoinder affidavit and Sri P.K. Srivastava, who has appeared on behalf of the respondent no.1.

Facts-

2. Briefly stated facts of the present case are that the petitioner defendant claims to be a tenant of a portion of a building bearing House No.112/265, Swaroop Nagar, Kanpur Nagar from last over 60 years and has inherited the tenancy from her father, late Sri R.P. Chaturvedi. Undisputedly, the tenanted building was originally owned by one Sri Atma Ram who admitted the  father of the petitioner defendant in tenancy. According to the petitioner defendant, the rent was being lastly realized by one Sri Sita Ram. Undisputedly both Sita Ram and the plaintiff respondent no.1 belong to the family of Sri Atma Ram in line of succession. According to the plaintiff respondent no.1, a family settlement took place on 17.1.1998 in which, the tenanted portion fell in share of the plaintiff respondent no.1 who as well as the aforesaid Sri Sita Ram informed the petitioner defendant that the plaintiff respondent no.1 is the landlord. It is alleged by the plaintiff respondent no.1 that the rent was demanded from the petitioner defendant. On account of non payment of the rent, a notice was issued by the plaintiff respondent no.1 to the petitioner defendant to pay the arrears of rent and vacate the premises. Allegedly, on account of non payment of rent and non vacation of the tenanted premises by the petitioner defendant, the plaintiff respondent no.1 filed SCC Suit No.131 of 2004 on 14.5.2004 seeking relief for eviction of the petitioner defendant and realization of arrears of rent amounting to Rs.770.93 and Rs.270/- as damages and Rs.138.76 as sewer charge, total Rs. 1179.69. According to the plaintiff respondent no.1, the amount was not deposited by the petitioner defendant on his first appearance in terms of Order XV Rule 5 C.P.C. and as such, they moved an application under Order XV Rule 5 C.P.C. to struck  off the defence of the petitioner defendant. The said application has been allowed by an order dated 14.10.2015 passed by the First Additional Judge, Small Causes Court, Kanpur Nagar and the application under Order XV Rule 5 C.P.C. being paper no.35C was allowed. Aggrieved with this order, the petitioner defendant filed SCC Revision No.105 of 2015 before the Additional District Judge, Kanpur Nagar which was dismissed by the impugned order dated 23.8.2016. Aggrieved with the aforesaid two orders, the petitioner defendant has filed the present writ petition.

Submissions-

3. Submission of the learned counsel for the petitioner defendant is that case law relied by the Trial Court as well as the Revisional Court, was inapplicable on the facts of the present case inasmuch as in the present set of facts, the rent was attached by Jal Sansthan Authorities for recovery of water tax and sewer tax. Under the circumstances, there was no breach of provisions of Order XV Rule 5 C.P.C. Consequently, the Trial Court as well as the Revisional Court committed manifest error of law and facts to allow the application being paper no.35C. In support of his submissions, learned counsel for the petitioner has relied upon the Division Bench Judgment of this Court in the case of Kunwar Baldevji Vs. XIth Additional District Judge, Bulandshahar, 2003 (3) AWC 2504. He also relied upon Explanation 3 of Order XV Rule 5 C.P.C. and submits that the amount recovered by the Jal Sansthan Authorities from the petitioner defendant is liable to be adjusted and to be treated as deposit against arrears of rent.

4. Learned counsel for the plaintiff respondent no.1 submits that there was neither any attachment nor the alleged receipts of deposit of water tax or sewer tax were filed by the petitioner defendant and as such the entire allegation of payment of recovery of amount by the Jal Sansthan Authorities by attachment of rent is wholly baseless. He referred to the averments made in paragraph 10 of the counter affidavit and its non denial by the petitioner defendant in paragraph 10 of the rejoinder affidavit. He further submits that Order XV Rule 5 C.P.C. mandatorily requires the amount to be deposited in the suit. If in any case, any amount has been deposited, although not admitted; by the petitioner defendant anywhere or with any authority, it shall not cure the breach of non deposit of rent as contemplated under Order XV Rule 5 C.P.C. He further submits that the impugned orders have been passed well accordance in law and the writ petition is misconceived and therefore, it deserves to be dismissed. In support of his submissions, learned counsel for the plaintiff respondent no.1 has relied upon the decisions of this Court in the case of Ram Chandra Srivastava Vs. VIIth Additional District Judge, Barabanki and others, 2011 (1) ARC 648 and R.C. Sharma Vs. Sanjay Rajwanshi, 1996 (2) ARC 225.

Discussion and finding-

5. I have carefully considered the submissions of the learned counsel for the parties.

6. It is undisputed that the petitioner-defendant is a tenant in portion of house no.112/265, Swaroop Nagar, Kanpur Nagar. As per plaint of the plaintiff-respondent no.1, the petitioner-defendant was a tenant at monthly rent of Rs.28/- per month besides taxes. As per paragraph 5 of the plaint, the petitioner-defendant is in huge arrears of tax for which, a demand notice was sent to the defendant through plaintiff's counsel but the defendant, in spite of service of notice, failed to pay the rent and taxes due since 1.1.2002. Consequently, the plaintiff-respondent no.1 terminated the tenancy by legal notice dated 13.3.2004, which was served upon the petitioner-defendant by refusal on 16.3.2004. Under the circumstances, the plaintiff-respondent no.1/landlord filed SCC Suit No.131 of 2004 for eviction of the petitioner-defendant from the tenanted portion of house in question. According to the plaintiff-respondent no.1, since the arrears of rent Rs.770.93 (from 1.1.2002 to 16.4.2004), Rs.138.76 as water tax and sewer tax (from 1.1.2002 to 16.4.2004) and Rs.270/- as damages (from 17.4.2004 to 13.5.2005), total Rs.1179.69 were not deposited in the court at the first hearing of the suit together with interest @ 9% per annum, the plaintiff-respondent no.1 moved an application under Order XV Rule 5 CPC for striking off defence for failure to deposit the admitted rent. The said application was allowed by the Court of First Additional Judge/ Small Cause Courts, Kanpur Nagar vide order dated 14.10.2015. Aggrieved with this order, the petitioner-defendant file SCC Revision No.105 of 2015, which was dismissed by the Court of Additional District Judge, Kanpur Nagar by the impugned order dated 23.8.2016. Aggrieved with these two orders, i.e. the order dated 14.10.2015 and 23.8.2016, the petitioner-defendant has filed the present writ petition under Article 226 of the Constitution of India.

7. The sole contention of the learned counsel for the petitioner-defendant before this Court is that the petitioner-defendant/tenant has deposited certain amount towards water tax and sewer tax, which were adjustable towards the arrears of rent in view of the Explaination 3 to Order XV Rule 5 CPC as applicable in State of Uttar Pradesh. As per admitted facts of the case , the first date of hearing in the aforesaid SCC case was 26.8.2004, on which date, he was required to deposit Rs.1179.69 as aforementioned. However, the petitioner has not deposited any amount. He or his father had deposited a sum of Rs.894/- towards arrears of rent and water tax in Misc. Case No.633/70 of 2003 under Section 30 of the U.P. Act No.13 of 1972 in the Court of Civil Judge (J.D.), Kanpur Nagar in the name of Sri Sita Ram. No amount was deposited by the petitioner-defendant in the Court for plaintiff-respondent no.1. Even the amount deposited by him in the name of Sita Ram in Misc. Case No.633/70 of 2003 was merely Rs.894/-, which was less than the amount of the admitted rent and taxes of Rs.1179.69 demanded by the plaintiff-respondent no.1. The stand taken by the petitioner-defendant was that certain amount was recovered by Jal Sansthan from him and in view of the recovered amount, no amount remains payable as per Explanation 3 to Order XV Rule 5 CPC. The stand so taken, can not be accepted in view of the fact that on the first hearing of the suit, the petitioner-defendant has not deposited any amount in the Court on 26.8.2004. Water tax and sewer tax were in addition to the rent of Rs.28/- per month. Thus, the provisions of Order XV Rule 5 CPC stood attracted in the aforesaid SCC case against the petitioner-defendant for striking off the defence.

8. A careful reading of the Rule 5 of Order XV shows that 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 is required to deposit at or before the first hearing of suit, the entire amount admitted by him to be due together with interest thereon at the rate of 9% 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 of his defence. The expression "entire amount admitted 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, deposited in any Court under Section 30 of the U.P. Act No.13 of 1972. As per Explanation 3, 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. The admitted rate of rent is Rs.28/- per month which was payable to the plaintiff-respondent no.1/landlord. The petitioner-defendant was liable to deposit the entire amount at the first hearing and was also liable to continue to deposit the monthly rent in time from month to month. The aforesaid provision is a beneficial provision and if the petitioner defendant wanted to take its advantage then he must have strictly complied with the requirement of the aforesaid provision.

9. In the case of Basant Kumar Chauhan Vs.7th Additional District Judge, Bareilly, 1994 (23) ALR 414, this Court considered the provisions of Order XV Rule 5 CPC including Explanation 3 and held as under;

"10. A perusal of the provisions contained in Order XV Rule 5 of the Civil Procedure Code makes it clear that under the scheme of that order a deposit of rent on or before the date of first hearing might be made under Section 30 of the U.P. Act No. 13 of 1972. The explanation II to Order XV Rule 5(1) of the Civil Procedure Code amply clarifies that the expression 'entire amount admitted to be due' meant 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 lessee 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.

11. It is, therefore, obvious that the provisions contained in Order XV Rule 5, read with Explanation II clearly stipulate that any amount deposited in any court under Section 30 of the U.P. Act No. 13 of 1972 could be taken notice of by the court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. The expression 'monthly amount due' has been explained vide Explanation III to Order XV Rule 5 of the Civil Procedure Code and means the amount due every month whether as rent or compensation for use and occupation at the admitted rate of rem after making no other deduction except the tax, if any, paid to a local authority in respect of the building on lessor's account. Considering the explanation III to Order XV Rule 5 of the Civil Procedure Code it is clear that for finding out the 'monthly amount due' the deposits made in any court under Section 30 of the U.P. Act No. 13 of 1972 are not to be taken into account. However in explanation II there is a clear mention of the deposits, if any, made in any court under Section 30 of the U.P. Act No. 13 of 1972 which may be taken into notice and adjusted while considering the entire amount admitted by the tenant to be due which is required to be deposited at or before the first hearing of the suit. The omission appears to be deliberate and is indicative of the fact that for the purposes of the deposits towards the 'monthly amount due' as contemplated in the second part of Order XV Rule 5(1)of the Civil Procedure Code, any deposit in any court under Section 30 of the U.P. Act No. 13 of 1972 is not to be taken into account. Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under explanation III to Order XV Rule 5 of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck off. Of course, the delay, if any, in making the deposits required to be made under the second part of Order XV Rule 1 of the Civil Procedure Code could be condoned, on the representation of the tenant provided he makes out a sufficient ground for the same.

12. It may further be noticed that Section 30 of U.P. Act No. 13 of 1972 is confined to deposit of rent concerning a building as defined in that Act. Under Order XV Rule 5 of the C.P.C. deposit is required to be made regularly within a week from the date when the monthly amount falls due. No such rider can obviously be read into a deposit under Section 30 of the U.P. Act No. 13 of 1972 as pointed out by this Court in its decision in the case of Shyam Kishore Agarwal v. VIIth Additional District Judge, Kanpur and others, 1984 AWC (Suppl.) 555. This also suggests that the deposit contemplated is a deposit in the court where the suit is pending.

13. Another aspect which also cannot be lost sight of is that under the provisions contained in Order XV Rule 5 of the Civil Procedure Code as applicable to the State of U.P. the monthly amount due as clarified under explanation III to the said rule has to be deposited throughout the continuation of the suit within a week from the date of its accrual. The suit referred to therein is a suit by a lessor for the eviction of a lessee after the determination of his lease and for recovery from him of rent or compensation for use and occupation. The proceedings under Section 30 of the U.P. Act No. 13 of 1972 cannot be deemed to be a 'suit' as envisaged under Section 26 of the Civil Procedure Code. The word 'suit' has nowhere been defined in the Civil Procedure Code. A proceeding in the nature of a suit is initiated by the presentation of a plaint in a court for the adjudication of the rights of the parties. In its decision in the case of Hansraj v. Dehradun M.E.T. Co. Ltd., AIR 1933 P.C. 63, the Privy Council had observed that the word 'suit' ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. In its decision in the case of Rameshwar Dayal v. Banda (dead) through his L.Rs. and another, 1983 (1) ARC 249 the Apex Court while noticing the difference between a 'decree', 'order' and 'judgment' as defined under the Civil Procedure Code had observed that the definition of decree, order and judgment given in the Code show that decree or order as the case may be can come into existence only if there is an adjudication on the relevant issues which conclusively determines the rights of the parties with regard to all or any matters in controversy in the suit.

14. A perusal of the provisions contained in Section 30 of the U.P. Act No. 13 of 1972 indicates that the proceedings contemplated therein which are of a summary nature are not at all in the nature of a suit and the question for adjudication of any right of the parties in such proceedings so as to bring in existence any decree, order or judgment as envisaged under the provisions of the Civil Procedure Code does not arise therein. Moreover, as observed by this Court in its decision in the case of Chuni Lal v. Ramesh Chandra, 1992 (20) ALR 1111, the mere fact that an application under Section 30 for permission to deposit the arrears of rent has been allowed by the Munsif cannot absolve the tenant from establishing before the court where the suit for eviction is filed that the landlord has refused to accept the rent lawfully tendered. It was further observed in that decision that it stands well settled that the court trying the suit for eviction cannot be precluded from enquiring about the validity of the deposits made under the proceedings contemplated under Section 30 of the U.P. Act No. 13 of 1972, Moreover in the present case what I find is that the learned Munsif while disposing of the application of the defendant-petitioner made under Section 30 of the U.P. Act No. 13 of 1972 had not gone into the merits of his claim at all and had permitted him to deposit the rent in those proceedings at his own risk.

15. In the aforesaid situation the petitioner could not be deemed to be entitled to any benefit out of the deposits claimed by him to have been made in the proceedings under Section 30 of the U.P. Act No. 13 of 1972 and the deposits made by him there could not relieve him of the liability which stood statutorily fastened on him under the provisions contained in Order XV Rule 5(1) of the Civil Procedure Code requiring him to deposit the monthly amount due as explained in explanation III of the said provision within a week from the date of its accrual.

16. The observations occurring in the decision of the learned Single Judge in the case of Gyanandra Lal (supra) on which strong reliance has been placed by the learned counsel for the petitioner, indicating that from the time of the filing of a suit by the lessor against the lessee the defendant-tenant is entitled to the benefit of the deposit made under Section 30(1) of the U.P. Act No. 13 of 1972 not only during the period prior to the institution of the suit for ejectment but also during the subsequent period appear to be obiter. The decisions to the above effect cannot under the law, be deemed to be a binding precedent. It falls in the category of a decision passed sub-silentio as observed in the decision of the Apex Court in the case of State of U.P. v. M/s. Synthetic and Chemical Limited JJ 1991 (3) SC 268. It was observed by the Hon'ble Supreme Court therein that a decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. Noticing the decision in the case of Lancaster Motor Company (London) Ltd., v. Bremith Ltd. , it was observed that the court did not feel bound by earlier decisions as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. The Apex Court clearly observed that any declaration or conclusion preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.

17. From a perusal of the decision in the case of Gyanandra Lal (supra), it is apparent that no reason whatsoever has been given for the conclusion contained therein referred to hereinbefore. Moreover the crucial words occurring in Order XV rule 5(1) of the Civil Procedure Code and the implications rising under explanation II and explanation Ill to Order XV Rule 5(1) of the Civil Procedure Code as well as the implications rising under the use of the term 'sun' in the provision under consideration and further the nature of the proceedings envisaged under section 30 of the U.P. Act No. 13 of 1972 were not at all taken notice of while making the observations on which the learned counsel for the petitioner has placed strong reliance The clear cut statutory provision contained in Order XV Rule 5(1) of the Civil Procedure Code leads to an inescapable and irresistible conclusion that the defendant-tenant petitioner could not be deemed to have been relieved of his liability to deposit the monthly amount due in the court where the suit was proceeding even after having come to know of its pendency and comply with the requirement of the second part of Order XV Rule 5(1) of the Civil Procedure Code in order to save his defence from being struck off. The revisional court has noticed that inspite of full opportunity, the defendant petitioner did not take any steps to get the amount deposited in the court where the suit was pending and insisted that he was not required to make any deposit whatsoever. It has further been noticed that the defendant petitioner did not even ask for the permission to make the necessary deposits even after the application for striking off his defence had been filed. The courts below were bound to follow the statutory provisions and they did not commit any error in following the decision of this Court in the case of S. Abel (supra) which continues to have its binding force and is in conformity with the provisions contained in Order XV Rule 5 of the Civil Procedure Code and the legislative intent behind the same."

(emphasis supplied by me)

10. The aforesaid judgment in the case of Basant Kumar Chauhan (supra) rendered by learned Single Judge, was affirmed by a Division Bench of this Court in the case of Haider Abbas Vs. Additional District Judge, Court No.3, Allahabad and others, 2006 (62) ALR 552 (Allahabad) which held as under;

"35. From a perusal of the aforesaid decision it is also not clear whether the matter related to the first part or the second part of the Order XV, Rule 5 C.P.C. As seen above, there is a substantial difference between the deposits made in these two parts because under the first part the amount deposited under section 30 can be deducted whereas under the second part there is no provision for deduction of the said amount.

36. Basant Kumar Chauhan (supra) and Ram Kumar Singh, (supra), in our considered opinion, have correctly appreciated the provisions of Order XV, Rule 5 C.P.C. and we have not been able to persuade ourselves to uphold the view taken to the contrary in Habiburrahman (supra), Ratan Bhushan Shukla (supra) and Dr. Ram Prakash Mishra (supra). These decisions have not considered the specific requirement contained in the second part of the Order XV, Rule 5(1) C.P.C. relating to deposit of the monthly amount due throughout continuation of the suit. They, therefore, with utmost respect to the learned Judges deciding the cases, do not lay down the correct law.

37. We, therefore, upon an analysis of the provisions of Rule 5(1) of Order XV, C.P.C., 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."

11. In the case of Atmarm Vs. Shakuntala Rani, 2005 (61) ALR 450, Hon'ble Supreme Court emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition failing which, he can not take advantage of the benefit conferred by such a provision. It has been further emphasized that the rent must be deposited in the court where it is required to be deposited under the Rent Control Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently, the tenant must be held to be in default.

12. In the case of Kanhai Vs. Prafulla Kumar, 2014 (2) ALL LJ 524, this Court explained the provisions of Section 20 of the U.P. Act No.13 of 1972 and the provisions of Order XV Rule 5 CPC and held as under;

"6. 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 there from 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.

7. 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.

8. 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 SC 1657 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."

9. 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."

13. In the case of Kammo Vs. Chandrasekhar Gupta, 2014 (1) ALL LJ 691 held as under;

"22. Explanation to Order XV, Rule 5 mentions that first hearing means the date fixed for filing written statement and the entire amount admitted means the entire amount of rent or compensation for use of accommodation calculated at the admitted rent adjusting deposit made under section 30 of the U.P. Act No. 13 of 1972. It is admitted position that no monthly amount was deposited till 15.7.2006.

23. Submission of learned Counsel that defendant had deposited the rent under section 30 of the U.P. Act No. 13 of 1972 and it can be adjusted towards arrears claimed by the plaintiff has substance. Similarly, any other amount paid can also be adjusted as provided in Explanation 2. However, amount other than the admitted rent till the filing of Suit and monthly amount due (as claimed) has to be deposited and failure to deposit entails the consequence provided as above.

24. Since no amount was deposited till 15.7.2006 in the Suit itself, Trial Court was fully justified in striking off the defence. Since neither written statement was filed nor any amount including monthly amount was deposited, Court below had exercised its discretion under Order XV, Rule 5 CPC which cannot be said to be arbitrary or unauthorized by law."

14. The stand taken by the petitioner-tenant questioning the family settlement in the family of the respondent no.1-plaintiff and falling in his share the disputed shop, is unsustainable inasmuch as it was clearly stated in the plaint by the respondent no.1-plaintiff that a family settlement took place on 17.1.1998 in which, the tenanted portion fell in the share of the respondent no.1-plaintiff, who as well as Sri Sita Ram informed the petitioner-tenant that the plaintiff-respondent no.1 is the landlord. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property in question was a joint property and it was dealt with by only one of them, he cannot object. However, it will be open to the tenant to show that the partition was not bonafide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the Act No.13 of 1972.

15. The view taken by this Court as above, is also supported by the law laid down by Hon'ble Supreme Court in the case of the Sk.Sattar Sk.Mohd.Choudhari vs Gundappa Amabadas Bukate, 1996 (6) SCC 373 (para 37) as under;

"37. In view of the above discussion, it is obvious that the law with regard to the spliting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the Premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even it he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute."

16. In view of the above discussion, I do not find any merit in this writ petition. Consequently, the writ petition is dismissed.

Order Date :-31.7.2017

V Kumar