Smt. Pushpa Gupta vs Subhash Chandra And Another
2021 Latest Caselaw 11378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 2							Reserved
 
									   A.F.R.
 
Case :- S.C.C. REVISION No. - 135 of 2019
 

 
Revisionist :- Smt. Pushpa Gupta
 
Opposite Party :- Subhash Chandra And Another
 
Counsel for Revisionist :- Ashish Kumar Srivastava
 
Counsel for Opposite Party :- Ayush Khanna, ,Vaishali Sahu
 

 
Hon'ble J.J. Munir,J.

1. This S.S.C. Revision by the defendant is directed against an order of the Additional District Judge, Court no.2, Varanasi, sitting as the Small Cause Court, dated 11.11.2019 passed in SCC Suit no.7 of 2017, rejecting the defendant's application, seeking to condone the delay in complying with the provisions of Order XV Rule 5 CPC, with a further prayer to permit the defendant to deposit arrears of rent from the month of March, 2015; in the alternative, to adjust the rent deposited by the defendant under Section 30(2) of the U.P. Act No.13 of 1972, with permission to deposit the outstanding rent from the date of institution of the suit.

2. Notice pending admission was issued vide order dated 17.07.2019, and an interim stay of proceedings of the suit was granted. The landlord has put in appearance and opposed the motion to admit this Revision to hearing. Learned Counsel for the parties were heard and orders were reserved.

3. Heard Mr. Ashish Kumar Srivastava, learned Counsel for the revisionist-tenant in support of the motion to admit the Revision to hearing and Mr. Atul Dayal, learned Senior Advocate assisted by Mr. Ayush Khanna, appearing on behalf of the plaintiff-opposite party.

4. The facts of this case, and more particularly, the course of proceedings here would show that this Revision is a second attempt by the defendant in the suit, who is the tenant, to unshackle himself of his liability under Order XV Rule 5 of the Code of Civil Procedure, 1908 (for short, ''the Code'). The defendant, Pushpa Gupta, shall hereinafter be referred to as, ''the tenant'. Subhash Chandra and Pankaj Deovanshi, the plaintiffs, shall hereinafter be referred to as, ''the landlords'.

5. The landlords instituted S.C.C. Suit no.7 of 2017 on 10th of February, 2017 before the District Judge, Varanasi, sitting as the Judge, Small Cause Court, against the tenant, seeking a decree of eviction, recovery of arrears of rent and damages for use and occupation till delivery of possession. The demised premises are described as two rooms together with a lavatory, a bathroom and kitchen, located on the First Floor of House no. CK-48/178, situate at Mohalla Harha, City Varanasi and bounded as detailed at the foot of the plaint. The aforesaid premises shall hereinafter be referred to as, ''the demised premises'. It appears that the demised premises were earlier part of House no. CK- 48/178, of which one Smt. Saroj Gupta was the owner. Saroj Gupta executed a registered sale deed dated 16.03.2015, conveying in favour of one Saurabh Singh and others, a part of the said house on the southern side of it. It appears that the demised premises is the part of the house bearing no. CK-48/178, that was transferred by Smt. Saroj Gupta in favour of Saurabh Singh and others. Smt. Saroj Gupta served the tenant with a notice dated 18.03.2016, informing the tenant that she had sold a part of house no. CK-48/178 to Saurabh Singh and others. The notice said that Smt. Saroj Gupta had received the current rent, inclusive of taxes up to the month of February, 2015 from the tenant, relating to the demised premises. The notice also said that after execution of the sale deed, she was no longer entitled to receive rent for the demised premises, which would be payable to Saurabh Singh and others.

6. After service of this notice, the tenant instituted an application under Section 30(2) of the U.P. Act No.13 of 1972 (for short, ''the Act') on 30.05.2016, that was registered as Misc. Case no.46 of 2016, Smt. Pushpa Gupta vs. Subhash Chandra and others. These proceedings by the tenant were brought with a case that a portion of the demised premises was part of house no. CK-48/178, the owner and landlady whereof was Smt. Saroj Gupta, and another portion of the said premises was part of house no. CK-48/178-A, the owners whereof were Subhash Chandra and Pankaj Deovanshi (the landlords).

7. It was pleaded that Smt. Saroj Gupta was not accepting rent, though she was entitled to a share in it. Subhash Chandra and Pankaj Deovanshi, on the other hand, were insisting that the tenant should attorn them as the owners and the landlord of the demised premises in their entirety. Considering the aforesaid facts, the tenants said that a bona fide doubt has arisen about the identity of the person entitled to receive rent relating to the demised premises, and, therefore, prayed that they be permitted to deposit rent under Section 30(2) of the Act. The present suit for eviction came to be instituted in the year 2017 by the landlords, wherein the tenant put in her written statement on 31.10.2017. It was said in the written statement that she was depositing rent under Section 30(2) of the Act. The tenant, however, admitted the fact that she had been served with a notice dated 18.03.2016 by her former landlady, Smt. Saroj Gupta, as hereinbefore detailed. Along with the written statement an application, bearing paper no.16-C was also made on behalf of the tenant, seeking exemption from the liability to deposit rent under Order XV Rule 5 of the Code. The tenant asserted that she may be exempted from making good the deposit of rent, as envisaged under Order XV Rule 5 of the Code, until decision about the inter se apportionment of rent between Smt. Saroj Gupta, on one hand and Subhash Chandra and Pankaj Deovanshi on the other. A further prayer was made to permit the tenant to deposit rent under Section 30(2) of the Act. The landlords objected to the said application and demanded striking off the tenant's defence under Order XV Rule 5 of the Code.

8. The Trial Court rejected that application by means of an order dated 28.02.2019. The tenant carried an S.C.C. Revision from the order dated 28.02.2019 to this Court, being S.C.C. Revision no.48 of 2019, Pushpa Gupta vs. Subhash Chandra and another. The said Revision was heard and dismissed by this Court vide judgement and order dated 10.07.2019. The aforesaid decision is reported in 2020 (2) All L.J. 68. This Court while dismissing S.C.C. Revision no.48 of 2019 inter partes observed:

"55. The judgments in the case of Dr. Ram Prakash Mishra (since deceased) v. IVth Additional District Judge, Etah another, 1999 (1) ARC 7; Habiburahaman v. District Judge, Jhansi and others 2000(1) ARC 4; and Sanjay Agrawal v. Ganga Prasad Agrawal and another, 2009(1) ARC 291: (2009 (5) All LJ (DOC) 184 (All)), upon which reliance has been sought to be placed by the revisionist are to the effect that if there is sufficient material on record to indicate that there are good reasons for condoning the default the Court has a reserve power to reject the application for striking off the defence. There can be no quarrel with the aforementioned legal proposition that powers under Order XV Rule 5 are not to be exercised in the case of a mere technical default.

57. The present case, however, is not a case where the revisionist is claiming condonation of the default in making compliance with the statutory provisions. It is a case where the revisionist claims exemption from complying with the mandatory provisions as contained under Order XV Rule 5 C.P.C., and in the absence of any provision whereunder exemption can be claimed from complying with the conditions under Order XV Rule 5 C.P.C. apart from consideration of a representation in terms of Rule 5 (2) thereof the claim of the revisionist is clearly unsustainable."

9. Taking a cue, as it were, from the remarks of this Court in S.C.C. Revision no.48 of 2019 above referred, the tenant moved another application before the Trial Court bearing paper no.42ग. This time the prayer was in the following words (translated into English from Hindi):

"It is, therefore, prayed that condoning the delay, that has occurred on the defendant's part, occasioned by mistake and error based on the legal advice received from her Advocate, she be permitted to deposit in Court the entire rent under Order XV Rule 5 of the Code due from the month of March, 2015, or adjusting the rent, already deposited by the tenant, under Section 30(2) of the Act, she may be permitted to deposit rent accrued from the date of institution of the suit, in the interest of Justice."

10. This application has come to be dismissed by the Trial Court by means of the order impugned.

11. Mr. Ashish Srivastava, learned Counsel for the tenant, has argued that the Trial Court has committed a manifest error of law in rejecting the tenant's application by misconstruing the provisions of Order XV Rule 5 CPC. It is submitted that it has always been both the endeavour and the intention of the defendant to deposit due rent and the application bearing paper no.42-C, that has now been rejected by the impugned order, seeks condonation of delay in depositing the rent under Order XV Rule 5 of the Code. The alternate player to adjust the sum of money, already deposited by the tenant under Section 30(2) of the Act, and to permit deposit under Order XV Rule 5 of the Code from the date of the institution of the suit, also shows the intention of the tenant to deposit all rent due.

12. It is argued that the purpose of the provisions of Order XV Rule 5 is to ensure remittance of rent to the landlord and not to non-suit the tenant on a technicality. He submits that the provisions of Order XV Rule 5, where the tenant comes forward to deposit rent, must receive not only a liberal construction, but also the prayer ought to be liberally granted.

13. In support of his submission, learned Counsel for the tenant has placed reliance upon a decision of this Court in Sanjay Agrawal v. Ganga Prasad Agrawal and another, 2009 (1) ARC 291. As part of this submission, it is emphasized that what is important is substantial compliance with the provisions of Order XV Rule 5 CPC, where deposit made under Section 30(2) of the Act would enure to the benefit of the tenant. The Trial Court, in discarding the tenant's prayer to condone the delay in complying with the provisions of Order XV Rule 5 of the Act and permitting the tenant to deposit rent, or in alternate, to adjust the sum of money deposited under Section 30(2) of the Act and permitting her to deposit the rent from the date of institution of the suit, has acted in contravention of the provisions of Order XV Rule 5 of the Code.

14. Learned Counsel for the tenant, in support of his contention that deposit of rent under Section 30(2) of the Act should enure to her benefit, has placed reliance on the decision of this Court in Sanjay Agrawal (supra). He has drawn the Court's attention to the decision in Sanjay Agrawal, where it has been held:

"11. One of the points arises in his case as to whether tender made by the defendant under section 30 of the Act was valid within the meaning of Order XV, Rule 5 of the Code. It is admitted fact that the defendants have made deposit of the arrears of rent under section 30 of the Act from 1.3.2000 to 31.8.2005, details of which have been given in the reply of the plaintiff annexed with the affidavit dated 16.12.2005. Such deposits ought to be taken into account by the Trial Court otherwise it would render sub-section (1) of section 30 and sub-section (6) of section 30 otiose."

15. Mr. Atul Dayal learned Senior Advocate, appearing for the landlords, refuting the submissions of the learned Counsel for the tenant, says that the law laid down in Sanjay Agrawal is not good law, in view of the decision of the Division Bench in Haider Abbas v. Additional District Judge (Court No.3) Allahabad and others, 2006 (62) ALR 552 (All). In this case, the learned Single Judge, finding conflict of opinion between learned Single Judges of the Court, had referred the following question of law for decision by a Larger Bench:

"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.?"

16. The Division Bench answered the question in the following words:

"38. 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."

17. So far as the issue whether the tenant is entitled to an adjustment of whatever he has deposited under Section 30(2) of the Act is concerned, this Court must at once notice that this issue has been gone into earlier by this Court and decided inter partes by the decision in Pushpa Gupta (supra) where it has been held:

"49. In the facts of the present case, the revisionist-tenant having admitted to have been served with a notice dated 18.3.2016 by the erstwhile owner Smt. Saroj Gupta containing a recital to the effect that she had sold a portion of the house bearing House No. C.K 48/178, Hadaha Varanasi, on 16.3.2015 to Saurabh Singh and others, and that she had received the rent inclusive of taxes upto the month of February, 2015 from the revisionist tenant in respect of the premises in question, and further that after execution of the sale deed she was no longer entitled to receive rent for the aforesaid tenanted portion and that the rent henceforth be paid to Saurabh Singh and others leads to the inescapable conclusion that there was no doubt or dispute as to the person who was entitled to receive rent in respect of the building in question and clearly the necessary jurisdictional facts for invocation of the provisions of sub-section (2) of Section 30 in terms of which the revisionist-tenant could claim benefit of deposit of rent in Court, did not exist."

18. The deposit made under Section 30(2) of the Act by the tenant had not been held to be validly made by this Court in Pushpa Gupta and that finding now operates as res judicata. Therefore, that part of the prayer in the application now made, which asks for adjustment of the amount deposited under Section 30(2) of the Act, is not open to agitation any further at the instance of the tenant in this Revision.

19. The next submission that has been made is that the prayer in the earlier application, which came to be decided in Pushpa Gupta was to the effect of seeking an exemption from complying with the provisions of Order XV Rule 5, whereas, by the present application the tenant seeks to deposit the arrears of rent after condonation of delay. Learned Counsel for the tenant has also urged, as already noticed, that the provisions of Order XV Rule 5 must receive a liberal construction in the tenant's favour, particularly, where on facts, the tenant is ready to deposit the entire rent due. Sadly, this question also is no longer open to agitation at the tenant's instance in this Revision for reason that, that issue has also been decided by this Court inter partes in Pushpa Gupta. In Pushpa Gupta, it has been held:

"50. The provisions contained under Order XV Rule 5 C.P.C., have been consistently held to be mandatory, and it has been held that the benefits conferred on tenants under the rent control legislation can be enjoyed only on the basis of strict compliance of the statutory provisions. There is no provision to claim exemption from complying with the conditions under Order XV Rule 5 C.P.C. apart from consideration of a representation made by the defendant as per Order 15 Rule 5 (2) C.P.C.

53. It has been consistently held that the tenant is required to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein, and any deposit not made in consonance with the said rule cannot enure the benefit of the tenant. Also, the amount to be deposited by the tenant during the continuation of the suit is required to be deposited in the court where the suit is filed failing which the court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 after the first hearing of the suit cannot be taken into consideration.

54. The provisions under Order XV Rule 5(2) provides a locus poenitentiae to the defaulting tenant to make a representation, which must be made within ten days of the first hearing or within a week from the date of accrual of rent as the case may be, and if the representation is not made within the specified time the court has no jurisdiction to consider a time barred representation or condone the delay or extend time. Apart from the aforementioned provision of filing a representation there is no provision wherein exemption can be claimed from complying the conditions under Order XV Rule 5."

(Emphasis by Court)

20. The holding in Pushpa Gupta clearly shows that the finding on the question of law has become final inter partes, andthat the Court has no jurisdiction to condone the delay in depositing rent under Order XV Rule 5 of the Code, if the tenant were to represent her case about the deposit to be made on the first date of hearing beyond ten days of that date. It has been held that the Court has no power to condone the delay beyond ten days in the case of deposit of accrued rent due on the first date of hearing, or beyond one week in the case of rent that accrues from month to month. This Court has clearly held inter partes that the Court has no power to condone delay in making good the deposit of rent under Order XV Rule 5 of either kind beyond the specified period of time envisaged under Order XV Rule 5(2) of the Code. Here, the prayer in the application clearly shows that the tenant has sought to condone the delay much after the first date of hearing, losing all the time in pursuing the first application that was made seeking exemption from deposit under Order XV Rule 5 of the Code, up to this Court in Revision. It is not the tenant's case that the first date of hearing in the suit had not gone by or that a period of ten days of the first date of hearing not elapsed, until time when the application bearing paper no.42-C was made. Clearly, the application is now beyond the condonable limit of delay available to the Court to exercise its discretion, a legal position that has been finally settled inter partes by this Court in Pushpa Gupta.

21. This Court is, therefore, of clear opinion that the tenant's application bearing paper no.42-C could not have been granted by the Trial Court. It has rightly been rejected.

22. In the result this Revision fails and is dismissed. The interim order dated 17.12.2019 is hereby vacated. There shall be no order as to costs.

Order Date :- 26.11.2021

Anoop

(J.J. Munir, J.)