Allahabad High Court
Radhey Dwivedi vs Manish Rohra on 9 July, 2019
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- S.C.C. REVISION No. - 80 of 2019
Revisionist :- Radhey Dwivedi
Opposite Party :- Manish Rohra
Counsel for Revisionist :- Manish Tandon
Counsel for Opposite Party :- Rajan Tripathi
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Manish Tandon, learned counsel for the tenant-petitioner and Sri Rajan Tripathi, learned counsel for the plaintiff-respondent.
Briefly stated facts of the present case are that the petitioner is a tenant of a shop situate on the ground floor of Quarter No.51/4, Block No. 6, Scheme -1, Govind Nagar, Kanpur Nagar. As per the plaint version initially the rent of the demised premises was Rs. 6,000/- per month which was enhanced by mutual consent to Rs.8000/-. According to the plaintiff-respondent, despite repeated demand the revisionist-tenant did not pay rent from 1.1.2013 to 16.4.2017. Therefore, after notice dated 17.4.2017; the plaintiff-respondent filed SCC Suit No.41 of 2017, under Section 106 of the Transfer of Property Act for ejectment of the tenant-revisionist and for recovery of rent. Since revisionist-tenant did not comply with the provisions of Order XV Rule 5 C.P.C., therefore, by order dated 21.3.2018, the defence of the revisionist-tenant was striked off. Subsequently, the aforesaid S.C.C. Suit No.41 of 2014 (Manish Rohra Vs. Radhey Dwivedi) was decreed by judgment dated 6.10.2018, passed by the VIth Additional District Judge/ Judge Small Cause Court, Kanpur Nagar. Aggrieved with this judgment, the tenant-revisionist filed SCC Revision No.147 of 2018 which was disposed of by this Court by order dated 26.11.2018 by setting aside the impugned judgment dated 6.10.2018 and the matter was remitted back to the trial court to decide the suit afresh in the light of the observation made, expeditiously, preferably within three months.
Instead of getting the suit decided in compliance to the judgment dated 26.11.2018, passed by this court in the aforesaid SCC Revision No.147 of 2018, the revisionist-tenant filed an application dated 7.1.2019, to take benefit of Section 20(4) of U.P. Act No. 13 of 1972 by depositing the entire arrears of rent, interest and tax etc. This application has been rejected by the impugned judgment and order dated 20.5.2019 .
Aggrieved with this judgment and order, the tenant-revisionist has filed the present revision under Section 25 of the Provincial Small Cause Courts Act, 1887.
Learned counsel for the tenant-revisionist submits that on remand by order dated 26.11.2018, passed by this Court in SCC Revision No.147 of 2018, entire case was open and, therefore, the court below committed a manifest error of law to reject the application dated 7.1.2019 for deposit under Section 20(4) of U.P. Act No. 13 of 1972.
Learned counsel for the plaintiff-respondent supports the impugned judgment and order.
I have carefully considered the submissions of learned counsels for the parties.
Section 20(4) of U.P. Act No.13 of 1972 provides for deposit at the first hearing of the suit. If such deposit is made at the first hearing of the suit unconditionally then the tenant gets certain protection. As per provision of Section 2(g) of U.P. Act No. 13 of 1972, the Act shall not be applicable where the monthly rent of any building exceeds Rs.2000/-. The plaintiff-respondent has claimed that the revisionist is a tenant on a monthly rent of Rs. 6000/- which was subsequently enhanced by mutual consent to Rs.8000/-. The suit itself was filed under Provisions of the Provincial Small Cause Courts Act, 1887. Thus, there was no justification to file an application under Section 20(4) of the U.P. Act No. 13 of 1972.
Order XV Rule 5 C.P.C. provides for striking off defence on failure to deposit admitted rent, etc. As per this provision, the deposit is to be made at or before the first hearing of the suit. The expression "first hearing" has been defined in Explanation 1 to mean the date for filing written statement and for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Undisputedly, the written statement was filed by the petitioner on 6.2.2018. In fact SCC Case No.41 of 2017 itself was decreed by judgment dated 6.10.2018. Prior to it the defence of the revisionist-tenant was striked off by a separate order dated 21.3.2018.
Thus, the application made by the revisionist-tenant does not comply with the terms of the provision of Order XV Rule 5 C.P.C. or in any case the tenant-revisionist is not entitled to make an application under Section 20(4) of the U.P. Act No. 13 of 1972. Under the circumstances, the rejection of the application of the tenant-revisionist dated 7.1.2019 by the impugned order dated 20.5.2019 does not suffer from any manifest error of law. Consequently, the revision is dismissed.
Order Date :- 9.7.2019/vkg
