Sri Vineet Kumar vs Upper District Judge, Court No-4, ...
2018 Latest Caselaw 3527 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 13.4.2018
 
Delivered on 02.11.2018
 
Case :- MATTERS UNDER ARTICLE 227 No. - 2419 of 2018
 
Petitioner :- Sri Vineet Kumar
 
Respondent :- Upper District Judge, Court No-4, And 2 Others
 
Counsel for Petitioner :- Divakar Rai Sharma,Pankaj Kumar Srivastava
 
Counsel for Respondent :- Pankaj Agarwal
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This petition has been filed praying for quashing of the judgment and order dated 1.3.2017 passed by the Judge Small Causes Court, Aligarh in SCC Suit No. 27 of 2011 (Ashra Rani Gupta Vs Vineet Kumar) and the order dated 18.1.2018 passed by the Additional District Judge, Aligarh in SCC Revision No. 11 of 2017 (Vineet Kumar Vs. Ashra Ram).

2. The facts as are relevant for decision of the controversy are being given as follows:-

3. The respondent no. 3 being plaintiff - Asha Rani Gupta wife of Anil Kumar instituted SCC Suit No. 27 of 2011 alleging therein that she is the owner of shop no. 1 / 225 as she had purchased the said shop from Rajiv Kant Sharma son of Trilochan Sharma by a registered sale deed dated 10.5.2010.

4. It was further stated that the petitioner / defendant was the tenant of the vendor on a monthly rent of Rs. 625/- apart from taxes and after she purchased the said shop, Asha Rani Gupta issued a registered notice on 8.1.2011 demanding rent which was refused by him. It was further alleged that the shop being a new construction, the provision of U.P. Act no. 13 of 1972 did not apply and a prayer was made for a decree for rent and damages and for eviction of the petitioner / defendant from the shop in question.

5. The petitioner / defendant filed his written statement and asserted that he was continuing as a tenant of the shop in question on behalf its landlady - Smt. Sudha Sharma since long and Smt. Sudha Sharma was issuing rent receipts to him. He had paid such rent upto 31.8.2012 to Smt. Sudha Sharma @ 500/- per month. The petitioner / defendant denied the relationship of landlord and tenant and also questioned the validity of the sale deed dated 10.5.2010 allegedly executed by Rajiv Kant Sharma in favour of the plaintiff. It was alleged that Rajiv Kant Sharma was the husband of Smt. Sudha Sharma who was the owner and landlady and Sri Rajiv Kant Sharma could not have sold off the same property twice. It was alleged that on 4.5.2010 Rajiv Kant Sharma had sold the property to Abhishek Gupta and therefore on 10.5.2010, he could not have sold off the same property to Asha Rani Gupta and Abhishek Kumar son of Anil Kumar Gupta. The identity of the property mentioned in the sale deed as shop no. 1 / 225 was also disputed.

6. After this written statement was filed on 4.9.2012, an application was moved by the respondent / plaintiff on 3.8.2016 under Order XV, Rule 5 of the CPC on the ground that during the pendency of the Suit, the petitioner / defendant had not deposited the rent and taxes and hence his defence should be struck off. Objections were filed by the petitioner / defendant on 4.10.2016 on the ground that there is no relationship of landlord and tenant between the parties and hence the provisions of Order XV, Rule 5 CPC are not attracted.

7. The Trial Court in its order dated 1.3.2017 allowed the application under Order XV, Rule 5 CPC on the ground that the relationship of landlord and tenant may have been denied, but the defendant had not denied that he was a tenant of the property in question and observed that since the property in question had been bought through registered sale deed on 10.5.2010 by the respondent / plaintiff, the relationship of landlord and tenant had come into existence and as per order XV, Rule 5 CPC, the arrears of rent along with interest and cost as well as the current rent should have been deposited by the tenant which was not done and no representation made for further time, therefore the defence of the tenant was struck off.

8. Aggrieved by the order passed by the Judge Small Causes Court, the tenant preferred a Revision which revision was also rejected by the learned Additional District Judge by order dated 18.1.2018.

9. Learned Senior Counsel for the petitioner, Shri P.K. Jain assisted by Shri Divakar Rai Sharma, has submitted that the petitioner-tenant having disputed the validity of the registered sale deed as also the relationship of landlord and tenant such an objection ought to have been looked into and decided first by the learned Courts below.

10. The plaintiff-respondent's application under Order 15 Rule 5 C.P.C bearing Paper No. 61-C, however, was allowed and the defence of the defendant-petitioner was struck off on 01.03.2017 by the Judge, Small Causes Court, Aligarh. Aggrieved by the order passed by the Judge, Small Causes Court, Aligarh an SCC Revision No. 11 of 2017 was filed but the Revisional Court below completely failed to appreciate the legal issue involved therein and dismissed the Revision by his order dated 18.01.2018.

11. The learned counsel for the petitioner has submitted that there are several Division Bench judgments of this Court and also some by Single Judges which have held that in case the tenant disputes the relationship of landlord and tenant, then, he is not required to deposit the rent in Court on first date of hearing. Learned counsel for the petitioner has placed reliance on Kunwar Baldevji Vs. XIth Additional District Judge, Bulandshahar and others, a Division Bench judgment reported in 2003(1) ARC 637; and a judgment rendered by another Division Bench in Ladly Prasad Vs. Ram Shah Billa and others reported in 1976 (2) ALR 8. Several Single Judge decisions have also been relied upon, they are : Hub Lal Vs. District Judge, Mirzapur and others reported in 1985 (2) ARC 21; Thakur Prasad @ Bhola Nath Vs. Gur Prasad reported in 1979 ARC 195; Rakesh & Company (M/s.) and others Vs. M/s. Hira Lal and Sons reported in 2001 (2) ARC 278; U.P. Automobile Association & Anr. Vs. R.N. Bhargava reported in 2012 (3) JCLR 108; and Jayant Kumar Chakraborti Vs. Xth Additional District Judge, Varanasi and others: 2004 (22) LCD 429.

12. The learned Senior Counsel appearing for the petitioner has also placed reliance upon several judgements of the Supreme Court regarding the binding nature of precedents or judgments that are rendered by Coordinate Bench or by a Bench consisting of larger corum and he has argued that even if a later Bench comes to a conclusion that the earlier Division Bench or Coordinate Bench has not laid down the correct law, the principle of "stare decisis" would apply and it is not open to ignore the earlier binding precedents.

13. The learned counsel for respondents, Mr. Pankaj Agrawal, on the other hand, has argued that the learned Courts below have referred to the second part of Order 15 Rule 5 C.P.C enacted by the U.P. Civil Laws (Amendment) Act, 1972 which in its language is very clear and states that arrears of rent that are admitted by the tenant along with interest thereof i.e. 9 per cent per annum and cost of litigation may be deposited by the tenant as admitted by him, and with regard to the payment of month to month rent whether or not the tenant 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 case of any default, the Court may subject to the provisions of Sub Rule - 2 strike off his defence.

14. The learned Courts below have found that the petitioner / defendant had disputed that Smt. Asha Rani Gupta was the landlord and therefore had also disputed any rent being payable to her. In view of second part of the Order XV Rule 5 C.P.C and law settled by other judgments of this Court, on the specific language of the second part of Order XV Rule 5 C.P.C., the learned Courts below have correctly struck off the defence of the defendant petitioner. He has placed reliance upon three judgements of this Court to buttress his argument which are :-

15. (1). Praduman Ji Versus Special District Judge, Ballia, 2008 ALR 1892; (2) Dinesh Enameled Wire Industries Private Ltd. Vs. Swastik Udyog Through its Director: 2012 (3) ADJ 298; (3) Maya Devi and others Vs. Vipin Kumar Kushwaha and others: 2017 (120) ALR 98.

16. Learned counsel for respondents has pointed out that in these later judgments, this Court has considered the aim and object of framing Order XV Rule 5 by the Legislature and the duty cast upon the tenant to deposit rent even though it is not admitted to him, on a month to month basis during the continuation of the suit. There is no requirement under law that the learned Courts below should first determine the existence of landlord and tenant relationship before requiring the tenant to deposit the rent. He has also pointed out that the tenant in this case has not said that he is not tenant of the premises in question. He has only denied the locus of the plaintiff-respondents to demand the rent. He has disputed a registered sale deed executed by the husband of erstwhile landlord in favour of the plaintiff-respondents.

17. The learned counsel for the petitioner in rejoinder has submitted that even though the learned Courts below had found that the tenant was in default of payment of month to month rent as per the second part of Order XV Rule 5 of C.P.C. still order for striking off the defence is subject to the decision on the representation made by the tenant under sub-rule (ii) and also he has argued that in any case this Court has the power as per the law settled by the Hon'ble Supreme Court in the case of Bimal Chand Jain (supra) to put such a condition on the tenant while remanding the matter to the learned Courts below to consider on merits and to pass fresh order thereon.

18. Learned Senior Counsel appearing for the tenant has relied upon two Division Benches of this Court. The first such Division Bench is Ladli Prasad Vs. Ram Shah Billa & others 1976 ALJ 494. The appellant - Ladli Prasad filed a suit for eviction of defendant from the premises in dispute and for recovery of arrears of rent and damages alleging that the tendency had been terminated by notice under Section 106 of the Transfer of Property Act.

19. The Suit was contested by the defendant on the ground that the notice terminating the tenancy was illegal and the tenancy having not been terminated in law and no rent was due. Necessary issues were framed in the Suit. During the pendency of the Suit, Rule 5 was added to order XV of the CPC by U.P. Act No. 37 of 1972. The plaintiff made an application praying that the defence be struck off and an ex-parte decree be passed against the defendant as they had failed to deposit the arrears of rent and damages as required under Order XV, Rule 5.

20. Learned Munsif held that under Order XV, Rule 5 was attracted, but gave 15 days time to the tenant to deposit the entire dues. The Additional District Judge dismissed the revision and upheld the order of the Trial Court.

21. The defendants filed a writ petition, but the learned Single Judge without entering into the merits of the controversy issued a direction to the effect that in case the tenants pay the entire amount of rent which according to them was due upto the date fixed by the Court, then the Trial Court will not strike off the defencee. The legality of the order of the learned Single Judge was challenged before the Division Bench in Appeal by the plaintiff.

22. Learned counsel for the tenant argued that Order XV, Rule 5 was not attracted unless the Court first decides the question whether the tenancy had been validly terminated and any amount of rent is due from the defendants. The Division Bench observed that Order XV relates to disposal of the Suit at the first hearing. This stage is arrived after the defendant had filed his written statement, the parties have been examined under Order X to clarify the points in controversy, documents have been produced and necessary issues framed as provided under Order XIV. After the framing of the issues, the case is ready for hearing. This is the stage when Rule 5, Order XV comes into play.

23. The Division Bench observed that this is anterior to the stage when the parties examined their witnesses. At the stage Order XV, Rule 5, the Court is not required to record finding on disputed questions of fact which can only be done after the parties have led evidence in support of their conflicting claims. Under Rule 5, the defendant is required to deposit the entire amount of rent or damages for use and occupation which is admitted by him to be due and thereafter throughout the continuance of the Suit continue to deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him.

24. However, this Court also observed that in case the defendant does not admit that any amount is due to the plaintiff as rent or damages for use and occupation, he need not make any deposit. At this stage, the Court is not required to decide the questions whether any amount is really due and whether the lease had been validly terminated. The Court cannot under this Rule, order or compel the defendant to deposit the amount claimed by the plaintiff and on the failure of the defendant to make the deposit as claimed by the plaintiff refuse to entertain any defence or strike off his defence. The Statutes requires that a representation may also be made by the defendant in case he has a valid reason for non depositing the admitted dues within the time. In case the Court after considering the representation made by the defendant comes to the conclusion that the circumstances justify grant of further time on security being furnished for the amount, the Court will be competent to do so. It was observed that it was not obligatory on the Court to refuse to entertain any defence or to strike off the defence in case default is committed by the defendant in making the requisite deposit.

25. In Kunwar Baldevji Vs. XIth ADJ, Bulandshahar & others 2003 (1) ARC 637, the Division Bench was considering a reference made to it by the learned Single Judge to the effect that "whether the defence can be struck off under Order XV, Rule 5 CPC for non deposit of rent which is not admitted to be due despite the express words to the contrary in that statutory provisions?" The Division Bench observed on the basis of judgment rendered in Ladli Prasad (supra) that the question had already been considered and the judgment in the case of Ladli Prasad (supra) was followed in other cases also.

26. It observed that the Order XV, Rule 5 CPC would apply only when the defendant admits his liability for payment of rent to the landlord. It further observed that as the defendant did not admit that any amount by way of rent or compensation for use and occupation of the premises was due from him, no question of his making representation seeking further time to make such deposit arose. It observed that the Court cannot compel the defendant to deposit the amount claimed by the plaintiff even if defendant does not admit any amount to be due from him.

27. In paragraphs 12 & 13, the Division Bench observed further:-

"12. Having considered the aforesaid decisions we find that the language of Order XV, Rule 5 Code of Civil Procedure is unambiguous, clear and there is no scope of doing violence with it and stretch it to mean that expression "rent admitted by the tenant to be due" should mean rent found by the Court to be due -----------. Question of interpretation of a statutory provision arises only when it is ambiguous or admits two interpretation or it is required to save the provision from being declared void. No such contingency exist in the present case.

13. If amount of rent is admitted then it is not required to be adjudicated by the Court. In case, tenant denies any rent to be due, Court shall be required to decide the same. It is obvious that in such contingency Court will have to adjudicate and its finding will come subsequent to the 'first date of hearing' contemplated under Order XV, Rule 5 Code of Civil Procedure. It is, therefore, evident that by the time the Court will render its finding, 'first date of hearing', which is cut off date for deposition of rent, shall be over. It also requires no comment that such an issue is first to be framed and thereafter adjudicated after parties have lead evidence in accordance with law."

28. Several other learned Single Judge's decisions that have been referred to by the learned Senior Counsel are not being specifically referred to by this Court as they more or less reiterate what has been held in Kunwar Baldevji (supra). This Court shall only consider the judgment referred to in the orders impugned i.e. U.P. Automobile Association & another Vs. R.N. Bhargava 2012 (3) JCLR 108.

29. This Court was considering two Revisions preferred by the defendant who was either the tenant or the licensee of the Suit property and it was observed that if the landlord himself does not admit the defendant to be a tenant, provisions of Order XV, Rule 5 CPC are not applicable. In a situation, where the plaintiff asserts that the defendant is not a tenant, but only a licensee however, the tenant asserts that he is a tenant, the provisions of Order XV, Rule 5 CPC are not applicable.

30. Learned counsel for the petitioner has also submitted on the basis of judgment in Bimal Chand Jain Vs. Gopal Agarwal reported in 1981 ARC 463 that the Court can exercise the discretion in favour of the defendant. In this case, the Supreme Court considered Order XV, Rule 5 CPC and also the question as to whether the Court enjoys any discretion not to strike off the defence, in case the defendant has defaulted in depositing the rent and has failed to make any representation within the terms of Rule 5 of Order XV.

31. The Allahabad High Court had held that Trial Court had no discretion. However, the Supreme Court observed in paragraph 6 as follows:-

"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". We shall presently come to what this means. 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. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and 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. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub- rule (2), the defence should or should not be struck off. 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. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV."

(emphasis supplied)

32. The judgment rendered by Hon'ble Supreme Court in Bimal Chand Jain (supra) has been followed by the Supreme Court in Manik Lal Mazoomdar Vs. Gauranga Chand Dey AIR 2005 SC 1090. A three Judge Bench was considering the Appeal in view of difference of opinion between two learned judges with regard to the provision in Tripura Buildings Lease and Rent Control Act, 1975 and Sections 13 & 20 thereof, which provided that Appeal is maintainable by a tenant against an order of eviction, if the same is preferred within 30 days and he deposits the rent before the Rent Control Court or the Appellate Authority along with all arrears of rent admitted by the tenant to be due in respect of the building upto the date of payment, and continues to pay or to deposit, any rent which may subsequently become due in respect of Suit property, until the termination of the proceedings before the Court concerned.

33. The Supreme Court observed that the expression "all arrears of rent admitted by the tenant to be due" means that if tenant specifically admits any arrears of rent to be due to the landlord, the condition to make the payment of arrears of rent in order to contest the original proceedings before the Rent Control Court or to prefer an Appeal would not arise. The object of sub-section (1) of Section 13 of the Act is to avoid litigation for realization of arrears of rent which is likely to accumulate during the course of litigation, which may be a long period, and also to deter the tenant from resorting to an unfair practice to use and occupy the tenanted premises without payment of any rent so long as the litigation continues.

34. It was observed that the High Court's decision that until such payment is made, the Appeal would not be maintainable, could only be upheld if there was prima-facie material available on record disclosing an admission of relationship of landlord and tenant and the rate of monthly rent payable.

35. The Court however observed that the intention of legislature must be found in the expression "prefer an appeal" occurring in sub-section (1) of Section 13 of the Act. If the expression to "prefer an Appeal"is interpreted to mean the mere filing of a memorandum of appeal, it may also result in extreme hardship to the tenant or even make the provisions of Section 20 regarding an appeal against the order of Rent Control Court nugatory in some cases. The limitation for preferring an appeal against the order passed by the Rent Control Court was only thirty days. Therefore, if the appeal is not preferred within the said period of thirty days (excluding the period spent in obtaining the certified copy of the order appealed against), the same shall become barred by limitation and would be liable to be rejected on that ground alone. The tenant, on account of some personal difficulty or problem may not be in a position to deposit all arrears of rent admitted by him to be due within the period of thirty days. In such an event, he may be precluded from challenging the order of Rent Control Court as the memorandum of appeal filed by him without making payment or deposit of arrears of rent would be liable to be rejected straightaway. It, therefore, was of the opinion that on a conjoint reading of all the provisions of the Act and giving a fair and reasonable interpretation thereto, an appeal under the Act may be filed or presented without payment to the landlord or deposit with the appellate authority of all arrears of rent admitted by the tenant to be due and it cannot be held to be incompetent. However, it will be open to the appellate authority not to proceed with the hearing of the appeal or to pass any interim order in favour of the appellant- tenant until he has paid or deposited all arrears of rent admitted by him to be due, and for such purposes the appellate authority shall have all the powers under sub-sections (2) and (3) of Section 13.

36. In Miss. Santosh Mehta Vs. Om Prakash AIR 1980 SC 1664, the Supreme Court observed with respect to a similar provision in Section 15 of the Delhi Rent Control Act, 1958 that the Court must adopt a socially informed perspecive while construing the provision. The Rent Controller may or may not strike out the tenant's defence.

"3.A Judicial discretion has built in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party's defence is an exceptional step, not a routine visitation of a punitive action following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates willful failure, deliberate default or volitional non-performance. Secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty under. J lying the power."

(emphasis supplied)

37. Similarly in Kamla Devi Vs. Basudev 1995 (1) SCC 356, a three Judges Bench of the Supreme Court observed that sub section 7 of Section 15 of the Delhi Rent Control Act give the discretion to the Rent Controller and does not contain a mandatory provision for striking out the defence of the tenants against eviction in case of failure to deposit rent.

38. Learned counsel for the plaintiff has placed reliance upon judgment rendered by Coordinate Bench in Dinesh Enameled Wire Industries Private Ltd. Vs. Swastik Udyog through its Director 2012 (3) ADJ 298 where the learned Single Judge has given a purposive interpretation to Order XV, Rule 5 CPC and observed in paragraph 13 as Follows:-

"13. Purpose and object of enactment of Order 15 Rule 5 C.P.C. would be defeated if a literal interpretation to word ''admitted', as suggested by the learned counsel for the tenant is given. An unscrupulous tenant, with a view to avoid the mischief of Order 15 Rule 5 C.P.C. may take a plea that the rate of rent was not as pleaded by the plaintiff but was a nominal amount. The idea of enactment of Order 15 Rule 5 C.P.C. is to compel the tenant to pay the rent at least at the rate he was paying earlier to the landlord notwithstanding the pendency of the litigation. Order 15 Rule 5 C.P.C. was enacted with a view that the landlord may not have to wait till the final decision of the case to recover his rent. He should at least get the rent at the rate he was getting before the start of litigation and a tenant may not enjoy the tenanted property without paying rent. The purport and object of Order 15 Rule 5 C.P.C. is to see that a tenant does not get undue advantage by withholding the payment of rent or pay it at a lesser rate than the one at which he was paying earlier on some lame excuse. Looking to the object which Order 15 Rule 5 C.P.C. seeks to achieve, a literal interpretation to the word ''admitted' would not serve the purpose and this court is of the view that a purposive approach of interpretation should be resorted to."

(emphasis supplied)

39. The learned Single Judge had also observed that the law laid down by the Division Bench in Kunwar Baldev Ji is not of universal application and it will not cover other cases where an inference of admission of rent due on the admitted facts could be drawn. If the material on record prima facie discloses the admission of relationship of landlord and tenant and the rate of monthly rent payable, the tenant would be required to pay or deposit arrears of rent and continue payment of current rent during the pendency of the litigation. As any unscrupulous tenant may continue to enjoy the premises without payment of any rent to the landlord by protracting the litigation and the landlord may have to wait till the final decision of the case to recover his dues by taking recourse to execution proceedings.

40. A more or less similar view has been expressed by another learned Single Judge in Hisamul Islam Siddique Vs. Javed Barki 2015 (3) ARC 824, where the Court was considering a case where the defendant / petitioner had denied the relationship of landlord and tenant. It was argued on behalf of the revisionist that the defendant never attorned the plaintiff as their landlord and never paid any rent to them. The plaintiff may have bought the property from the erstwhile landlord, but there was no relationship of landlord and tenant established between the plaintiff and the defendants. When the plaintiff had filed a Suit for payment of rent and eviction, the defendant instead of filing the written statement moved an application under Order VII, Rule 11 CPC for rejection of the plaint on the ground that there was no relationship of lessee and lessor between the parties and as such the tenancy could not have been terminated and the Suit was not maintainable in the Court of Small Causes.

41. This application was dismissed by the learned Trial Court. A revision was filed before the High Court which was also dismissed. After dismissal of such Revision, an application under Order XV Rule 5 was moved by the plaintiff which was allowed by the Trial Court. The Court considered the fact that it was not disputed by the revisionist that the plaintiffs had purchased the house in question from the previous owner through a registered sale deed. It was also not disputed that the notice was issued to them to pay rent, but the rent was not paid. When the Suit was filed, the defendant instead of filing a written statement had made an application under Order VII, Rule 11 CPC for rejection of the plaint which was dismissed and the revision was thereafter rejected. Still the defendant had not filed written statement nor deposited rent as due. The Court therefore observed in paragraph 9 thus:-

"With regard to Section 109 of the Transfer of Property Act, learned counsel for the plaintiff opposite party has placed reliance on a recent decision of Hon'ble the Apex Court in Ambica Prasad Vs. M.D. Alam & another 2015 33 LCD 1734 in which Hon'ble the Apex Court has held that a perusal of Section 109 of the Transfer of Property Act makes it clear that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities. The Section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's right. It has further been held that since attornment by the tenant is not required, a notice under Section 106 of the Transfer of Property Act would be proper and so also the suit for ejectment."

(emphasis supplied)

42. It was held that in view of the law laid down by the Hon'ble Supreme Court, the defendants were not required to attorn the plaintiffs as the landlord and lessor because by transfer of property and by operation of law, the plaintiff had become the lessor having purchased the property from its previous owner. The defendants having not denied their status by filing written statement in time and having also not deposited any rent as required under Order XV, Rule 5 CPC. The learned Courts below rightly struck off the defence of the defendants.

43. This Court finds from a consideration of the judgments cited by the counsel for either of the parties that the language of Order XV, Rule 5 CPC is similar to the language used in sub section 7 of Section 15 of the Delhi Rent Control Act, 1958 and sub section 1 of Section 13 of the Tripura Building Lease and Control Act, 1975. The Delhi Rent Control Act was considered by the Supreme Court in Miss. Santosh Mehta Vs. Om Prakash and in Kamla Devi Vs. Basudev.

44. The Supreme Court observed that the Rent Control Court / Appellate Authority has been conferred with a discretionary power which must be exercised with great circumspection.

45. In the case of the petitioner who is the defendant before the learned Trial Court, a specific plea was taken regarding non existence of relationship of landlord and tenant. In fact the ownership of the landlord of the Suit property was also denied, as also the identity of the Suit property, which was allegedly purchased by the plaintiffs. Though the pleas taken by the defendant / tenant may apparently be for the purpose of protracting the litigation as the property was bought through a registered sale deed and the shop number mentioned in the said sale deed was 1/225 which was the same as the shop rented out to the defendant / tenant, yet the defendant / tenant deserves some indulgence.

46. The orders impugned are set aside. However, a direction is issued to the petitioner / tenant to deposit arrears of rent @ Rs. 625/- per month along with 9% interest per annum and cost before the learned Trial Court within a period of one month from today. The tenant shall also deposit the current rent as determined by the learned Trial Court, month to month by the seventh of every month during the pendency of the litigation. All such deposits made by the tenant shall be kept in a separate interest bearing account by the learned Trial Court and shall abide by the final decision of the SCC Suit filed by the plaintiff / respondents.

47. This matter stands thus disposed of.

Order Date :- 02.11.2018

Arif