Om Prakash Gupta vs District Judge And Another
2019 Latest Caselaw 243 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 3199 of 2015
 

 
Petitioner :- Om Prakash Gupta
 
Respondent :- District Judge And Another
 
Counsel for Petitioner :- Ashish Agrawal
 
Counsel for Respondent :- Mahendra Nath Pandey
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard counsel for the parties.

The instant petition is directed against the order dated 13.5.2015 passed in SCC Revision No.2 of 2014, whereby the revision has been allowed and the order passed by the trial court dated 8.8.2014 striking off the defence of the defendant-opposite party no.2 in exercise of power under Order 15 Rule 5 CPC has been set aside.

The facts in brief are that the plaintiff-petitioner instituted SCC Suit No.2 of 2010 against the defendant-opposite party no.2 for recovery of arrears of rent and for eviction from a shop bearing No.462 Chapatti Gali, Bisatkhana, Mainpuri. The suit was instituted on 17.8.2010. It was preceded by a notice dated 8.5.2010 determining the tenancy of the defendant opposite party. The plaintiff claimed arrears of rent since April, 2006.

The suit was contested by the defendant by filing written statement dated 3.12.2010 claiming that there was no default in payment of rent, as the rent when tendered was refused, consequently, it was deposited in Misc. Case No.36 of 2001.

On 13.1.2012, the plaintiff filed an application alleging that the defendant has not made compliance of Order 15 Rule 5 CPC, inasmuch as he has failed to deposit the entire admitted rent in arrears on the first date of hearing of the suit and also the monthly rent. The defendant-respondent filed objection to the said application reiterating that the entire rent was in deposit in Misc. Case No.36 of 2001 under Section 30 (1) of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Act'). It was alleged that in fact advance rent till June 2012 was in deposit in the said case.

The trial court by order dated 8.8.2014 allowed the application filed by the plaintiff-petitioner and struck off the defence of the defendant-opposite party. The trial court declined to extend benefit of the deposits made under Section 30 of the Act to the defendant-opposite party on the ground that the said proceedings were initiated by Ram Chandra Sharma, late father of the defendant-opposite party. He died during pendency of the proceedings but even thereafter deposits were made in the said proceedings, therefore, the deposit was invalid. The trial court also held that the deposits made under Section 30 after the first date of hearing would not be valid deposits for purposes of Order 15 Rule 5 CPC, inasmuch as the deposit should have been made in the suit itself. In reaching the said conclusion, the trial court placed reliance on the judgment of the Supreme Court in Atma Ram Vs. Shakuntala Rani, 2005 (7) SCC 211.

Aggrieved by the order passed by the trial court striking off the defence of the defendant-opposite party, he filed a revision. The same has been allowed by the revisional court by impugned order dated 13.5.2015. The revisional court has held that since it is not in dispute that the entire rent is in deposit in proceedings under Section 30 (1) of the Act, consequently, on technical grounds, the benefit of such deposit cannot be denied to the defendant-opposite party. The revisional court has observed that as per judgment of Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal, AIR 1981 SC 1657 an order striking off defence is penal in nature, therefore, the court should exercise its discretion in passing an order striking off the defence. It has been further observed that it could not be expected from an ordinary litigant to know technicalities of law. Consequently, the deposit made under Section 30 (1) of the Act would be taken into consideration while reckoning compliance of Order 15 Rule 5 CPC. Accordingly, the order of the trial court dated 8.8.2014 has been set aside.

Learned counsel for the petitioner submitted that the trial court rightly did not extend the benefit of deposits made under Section 30 of the Act, as the person at whose instance the proceedings were registered namely Ram Chandra Sharma, father of the defendant-opposite party, had died and in the absence of the defendant-tenant being substituted in his place, the aforesaid proceedings had abated. He further submitted that the deposits made under Section 30 by the defendant-tenant after receipt of summons of the suit were invalid. According to him, the monthly rent in compliance of Order 15 Rule 5 CPC ought to have been deposited in the suit itself. In support of his submission, he has placed reliance on a Division Bench judgement of this Court in Haider Abbas Vs. Additional District Judge, 2006 (1) ARC 341 and judgment in More Singh Vs. Chandrika Prasad, 2015 (2) ARC 850.

On the other hand, learned counsel for the defendant-opposite party submitted that on account of lack of correct legal advice, the defendant-opposite party continued to deposit monthly rent in proceedings under Section 30 of the Act. It is urged that since the entire rent was in deposit, therefore, the revisional court rightly extended the benefit of the said deposit while considering compliance of Order 15 Rule 5 CPC.

The main question which is required to be answered is whether deposits made by the defendant-tenant under Section 30 (1) of the Act after receipt of summons of the instant suit could be taken into consideration for reckoning compliance of Order 15 Rule 5 CPC.

In fact, the aforesaid question is no more res-integra, as it has already been answered by a Larger Bench of this Court, to which the following question was referred for decision:-

"Whether the deposit made under Section 30(1) of U.P. Act No. 13 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 5 C.P.C.?"

The Division Bench, while answering the reference, has taken notice of the following paragraph from the judgment of the Supreme Court in Bimal Chand Jain Vs. Sri Gopal Agarwal (supra):-

"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 interests 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 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 reserve of discretion vested in the court entilling 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."

The Larger Bench has observed that Order 15 Rule 5 is in two parts. The first part deals with the deposit of the entire amount admitted by the tenant to be due together with interest at or before first hearing of the suit. The second part deals with the deposit of monthly rent due which has to be made throughout continuance of the suit. The Larger Bench thereafter took into consideration Explanation-2 and Explanation-3 which permits certain deductions to be made while making deposit under Order 15 Rule 5 CPC. The Larger Bench has held that the amount which could be deducted while making compliance of Order 15 Rule 5, is from the amount which is to be deposited at or before the first date of hearing and not from the monthly amount to be deposited throughout the continuance of the suit. The relevant extracts, in this regard, from the judgment of the Larger Bench is as follows:-

"In the present case, however, we are called upon to consider whether the deposit made under Section 30 of the Act can be deducted while calculating the "monthly amount due" and not whether the defence should be struck off in a case where no representation has been filed by the tenant irrespective of the fact that on record there exist sufficient facts and circumstances not to do so. On a careful analysis of the provisions of Order XV Rule 5 CPC we find that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit. Explanation 2 to Order XV Rule 5 (1) CPC stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the 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 Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5 (1) of Order XV Rule 5 CPC to mean 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. What has to be noticed in Order XV Rule 5 CPC is that the Legislature while defining "monthly amount due" which has to be deposited during the continuation of the suit has deliberately excluded the deduction of any amount deposited under Section 30 of the Act. We are, therefore, faced with a situation where the same Rule defines "entire amount admitted by him to be due" and "monthly income due" occurring in the first part and second part respectively of the Rules and while the former phrase stipulates the deduction of the amount deposited under Section 30 of the Act, the second part omits to mention such a deduction. It has, therefore, to be inferred that the Legislature has, in its wisdom, deliberately made a provision for deduction of the deposit of the amount under Section 30 of the Act only in respect of the amount to be deposited at or before the first date of hearing and not in respect of the monthly amount to be deposited throughout the continuation of the suit. This, coupled with the fact that both Explanation 2 and Explanation 3, referred to above provide "after making no other deduction except...." clearly leads us to no other conclusion except that only such deductions are to be made which have been specifically provided. The "monthly amount due" has to be construed in the manner provided for in Explanation 3 to Rule 5 (1) of Order XV CPC and in no other manner. We may, in this context, usefully refer to some decisions of the Supreme Court which hold that where a Statute stipulates that the word or phrase shall mean a particular thing than no other meaning should be assigned."

The Division Bench placed reliance on the judgment of Supreme Court in Atma Ram (supra) in holding that if the tenant desires to take advantage of a beneficial provision under the Rent Control Act, he must strictly comply with the requirements thereof. If any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition, failing which he cannot take advantage of the benefit conferred by the said provision. Accordingly, it was held that a deposit made not in consonance with the statutory provision would not enure to the benefit of the tenant. The monthly amount required to be deposited by the tenant during pendency of the suit has to be deposited in the court where the suit is filed and not in any other Court or proceedings. It has been concluded by holding that deposit of monthly rent under Section 30 of the Act, after receipt of summons of the suit is contrary to the requirements of Order 15 Rule 5 CPC and would therefore not enure to the benefit of the tenant:-

"The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) 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 required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the 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. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration.

.................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."

(emphasis supplied)

The judgment of Larger Bench in Haider Abbas (supra) being binding on me, I have followed the same in More Singh (supra), on which reliance has been placed by learned counsel for the petitioner.

In the instant case, concededly, even after receipt of summons, monthly rent upto December 2012 was deposited by the tenant in proceedings under Section 30 (1) of the Act. It was only since January 2013 that he started depositing monthly rent in the instant suit. Consequently, the benefit of monthly rent deposited under Section 30 (1) after receipt of summons/filing of written statement i.e. 3.12.2010 upto December 2012 could not be extended to the defendant tenant while reckoning compliance of Order 15 Rule 5 CPC. There is no escape from the mischief of Order 15 Rule 5 CPC. The trial court was justified in striking off the defence. The revisional court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra).

In consequence and as a result of above discussion, the impugned order dated 13.5.2015 is quashed and the order passed by the trial court dated 8.8.2014 is restored.

The petition accordingly succeeds and is allowed.

No order as to costs.

(Manoj Kumar Gupta, J)

Order Date :- 27.2.2019

SL