Amit Sharma vs Smt. Shikha
2023 Latest Caselaw 9714 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 2 
 
Case :- S.C.C. REVISION No. - 19 of 2023
 
Revisionist :- Amit Sharma
 
Opposite Party :- Smt. Shikha
 
Counsel for Revisionist :- Babban Prasad Dwivedi,Hriday Narayan Pandey
 
Counsel for Opposite Party :- Ashish Kumar Singh
 

 
Hon'ble Neeraj Tiwari,J.

Supplementary affidavit filed today is taken on record.

Heard learned counsel for the revisionist and Sri Ashish Kumar Singh, learned counsel for the opposite party.

Present Revision has been filed challenging the order dated 20.01.2023 as well as Decree dated 25.01.2023, passed by the Additional District & Session Judge, Ghaziabad in Suit No. 42 of 2016.

Learned counsel for the revisionist-defendant submitted that Suit No. 42 of 2016 was filed by the plaintiff-opposite party. He next submitted that plaintiff-opposite party has filed application dated 09.02.2022 under Order XV, Rule 5, C.P.C. to strike off the defence of the revisionist-defendant, which is dully replied by revisionist-defendant by reply dated 18.04.2022. He next submitted that, while passing the impugned order dated 20.01.2023 reply of revisionist-defendant has not been properly considered. In the reply dated 18.04.2022, revisionist-defendant has stated that filing of Suit No. 42 of 2016 was itself defective, as it has been filed before 30 days from the date of notice sent by the counsel for the plaintiff. He also submitted that as the rent agreement was extended for 11 months w.e.f. 01.02.2016 and he had paid the entire dues, therefore, nothing was due on the petitioner-defendant to pay, therefore, impugned order is bad and is liable to be set aside.

Learned counsel for the revisionist-defendant submitted that Order XV Rule 5 is having two parts, first part says that on or before the first hearing of suit, revisionist-defendant was required to deposit the entire admitted amount and, thereafter, rent on month to month basis. In the present case, the application dated 09.02.2022 has been allowed on the ground that revisionist-defendant has not paid a single penny on month to month basis as rent after first hearing of the suit initiated in 2016, which has also not been denied in the reply dated 18.04.2022 filed by revisionist-defendant, rather this has been accepted.

He next submitted that application of revisionist-defendant was allowed only on the ground that he has not deposited any rent after initiation of suit and after first date of hearing. In support of his contention, learned counsel for the plaintiff-opposite party has placed reliance on the judgment of this Court in the case of Radhe Shyam Chaurasiya and Another Vs. Smt. Babita: 2022 ADJ 272 and judgment of Apex Court Asha Rani Gupta Vs. Sri Vineet Kumar: (2022) 0 Supreme(SC) 594.

Being confronted by the court, even before Bar, Sri Pandey, learned counsel for the revisionist-defendant fairly accepted that no rent has been deposited and monthly rent has been deposited after initiation of suit proceeding and after first date of hearing of the case.

I have considered submissions made by learned counsel for the parties and perused the record as well as judgments so relied upon. The fact of the case, so far it relates to non deposit of monthly rent is undisputed.

From the perusal of Order XV Rule 5, it is apparently clear that revisionist-defendant had no option, but to deposit rent on month to month basis whether admitted or not admitted by him.

This issue was before this Court in the matter of Radhe Shyam Chaurasiya(Supra) and this Court after considering different judgments has held that it is mandatory to deposit rent on month to month basis before the court, where the suit has been instituted. Relevant paragraphs of the said judgment are quoted hereinbelow:

"5. Striking of defence for failure to deposit admitted rent, etc. 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 shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum 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 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 off his defence.

Explanation 1. The expression ''first hearing' means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned.

Explanation 2. The expression ''entire amount admitted by him 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, paid to the lessor acknowledged by the lessor 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.

Explanation 3. (1) 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.

(2) Before making any order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be.

(3) The amount deposited under this Rule may at any time be withdrawn by the plaintiff:

Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited:

Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."

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. So far as any amount deposited prior to institution of the suit, may be adjusted against the arrears, if any such application is filed. Whereas second part is concerned, it is mandatory requirement to deposit the rent before the Court concerned, where the suit is instituted. In the objection dated 2.2.2021 filed to the application under Order XV Rule 5 of C.P.C as well as affidavit filed before the Court, it is accepted by the revisionist no.2 that no rent has been paid by her before the Court concerned after first hearing of the suit.

This Court in the matter of Maya Devi (Supra) has taken specific view that in case of denial of tenancy, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week. Relevant paragraph of the said judgment is being quoted hereinbelow:-

"In the aforesaid case it was held that where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made in spite of the fact he admits any amount to be due or not."

In the matter of Gaya Prasad (Supra), Court has taken the view that rent is required to be deposited in compliance of provisions of Order XV Rule 5 of C.P.C. Relevant paragraph of the said judgment is being quoted hereinbelow:-

"Default in payment of rent is admitted and stands proved on record inasmuch as according to own case of the defendant-petitioner he has not paid rent after 04.08.1999. It is also not disputed that the rent has not been deposited in compliance to the provisions of Order XV Rule 5 C.P.C. Consequently, his defense was also struck off. The order striking off the defense, therefore, also does not suffer from any manifest error of law."

In the matter of State Bank of India, City Branch Pandey Hata (Supra), Court has again taken the same view that rent is not deposited by the tenant, therefore, there is no illegality in striking off the defence. Relevant paragraph of the said judgment is being quoted hereinbelow:-

"Considering the admitted facts of the case that the defendants-petitioners have neither disputed the arrears of rent on the first date of hearing nor paid monthly rent and as such protection of order XV Rule 5 C.P.C. was not available to him. Consequently, the court below has not committed any error of law in allowing the application 37Ga and striking off the defence of the defendants-petitioners/tenants. So far as the rejection of application 50Ga is concerned, I find that as per statement made by learned counsel for the plaintiffs-respondents before this Court and not disputed by learned counsel for the defendants-petitioners, the date 8.2.2018 is fixed before the court below for arguments. Therefore, I find it appropriate to request the court below to decide the aforesaid SCC Suit No.05 of 2016 (Ram Niwas Verma and others Vs. State Bank of India and another) in accordance with law, expeditiously, preferably within eight weeks from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties."

"11. From perusal of Order XV Rule 5 of C.P.C., it is apparently clear that any deposit made prior to first appearance in SCC suit may be adjusted for arrears of rent due upon filing an application, but after institution of suit, it is mandatory requirement to deposit rent before the Court, where the suit is instituted. Once it is not disputed that rent has not been deposited before the Court concerned, where the suit is instituted, there is no option before the Court to struck off the defence as provided under the provisions of Order XV Rule 5 of C.P.C.

12. So far as present case is concerned, there is admission on the part of revisionist no.2 that she has paid rent from time to time and she is tenant. She also admitted that she has never paid rent before the Court concerned after first hearing of the suit as required under Order 5 Rule 15 of C.P.C.

13. Therefore, in light of facts of the case as well as law laid down by this Court from time to time, there is no illegality or irregularity and Court has rightly struck off the defence of revisionists. Revision lacks merit and is, accordingly, dismissed. No order as to costs."

Again the Apex Court has considered the same issue in the matter of Asha Rani Gupta Vs. Sri Vineet Kumar: (2022) 0 Supreme(SC) 594 and has taken the very firm view that once the rent on month to month basis has not been deposited, Court has no power of discretion to exercise its power in favour of defendant-respondent. Relevant paragraphs of the said judgment are quoted hereinbelow:

"13. In a suit of the present nature, where the defendant otherwise has not denied his status as being the lessee, it was rather imperative for him to have scrupulously complied with the requirements of law and to have deposited the arrears of rent due together with interest on or before the first date of hearing and in any case, as per the second part of sub-rule(1) of Rule 5 of Order XV CPC, he was under the specific obligation to make regular deposit of the monthly amount due, whether he was admitting any such dues or not.

16. In the totality of facts and circumstances, we are clearly of the view that there was absolutely no reason for the High Court to have interfered in the present case, where the Trial Court had struck off the defence after finding that there was no evidence on record to show the payment or deposit of rent in favour of the plaintiff by the defendantrespondent. The Revisional Court had also approved the order of the Trial Court on relevant considerations. Even the High Court did not find the pleas taken by the defendant-respondent to be of bonafide character, particularly when survey number of the shop let out to him was clearly stated in the sale deed executed in favour of the plaintiff. We find it rather intriguing that, despite having not found any cogent reason for which discretion under Rule 5 of Order XV CPC could have been exercised in favour of the defendant-respondent, the High Court, in the last line of paragraph 45 of the order impugned, abruptly stated its conclusion that: 'yet the defendant/tenant deserves some indulgence'.

Undisputedly, so far as the present case is concerned, facts are again the same. There is no dispute on the point that after first hearing of the case, petitioner-defendant has not deposited any amount as rent, required to be paid on month to month basis. Once, it is undisputed that rent has not been deposited before the court concerned there is no provision in law to grant any relief, but the only option is to strike off the defence as provided in Order XV Rule 5 of CPC.

In view of facts and law laid down by the Court, I found no illegality & infirmity in the impugned orders dated 20.01.2023 & 25.01.2023. Accordingly, revision lacks merit and is dismissed.

No order as to costs.

Order Date :- 4.4.2023/ADY