Allahabad High Court

Bhure Khan Warsi vs Mohd Israr on 22 December, 2023

Author: Siddhartha Varma

Bench: Siddhartha Varma, Siddharth





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:242857-DB
 
Reserved
 
A.F.R.
 
Court No. - 3
 

 
Case :- S.C.C. REVISION No. - 55 of 2023
 
Revisionist :- Bhure Khan Warsi
 
Opposite Party :- Mohd Israr
 
Counsel for Revisionist :- Iqbal Ahmad
 
Counsel for Opposite Party :- Ashish Agrawal, 
 

 
Hon'ble Siddhartha Varma,J.

Hon'ble Siddharth,J.

1. When the learned Single Judge had referred the matter for being placed before a Larger Bench on 18.5.2023, Hon'ble the Chief Justice placed the case before this Court. Following is the question which the learned Single Judge had referred:-

"1) In case of disputing the landlord-tenant relationship by the revisionist-defendant upon the application under Order XV Rule 5 CPC (U.P. Amendment), as to whether it is required on the part of the SCC Court to decide the landlord-tenant relationship first or not, before proceeding to pass final order on the application."

2. Heard the learned counsel for the applicant in the Revision Sri Iqbal Ahmad and the counsel for the respondent-opposite party Sri Ashish Agrawal.

3. Briefly stated facts of the case are that a Suit being S.C.C. Suit No. 10 of 2017 was filed by the plaintiff-respondent on the ground that there were arrears of rent which had not been paid by the defendant and, therefore, a prayer was made that the defendant be evicted from the premises, the boundaries of which were given at the bottom of the plaint. Further prayer was that the tenant be directed by a mandatory decree to deposit Rs. 1,51,333/- with the plaintiff-respondent as arrears of rent. There were other reliefs also prayed for in the plaint. The defendant-applicant in the Revision filed a written statement and denied the fact that the defendant-revisionist was ever a tenant of the plaintiff. He had further stated that there was no agreement between the plaintiff and defendant with regard to tenancy of the property in question and had stated that the burden of proving that the relationship of landlord and tenant existed between the parties was on the plaintiff. He had also denied the fact that any rent was ever paid by the defendant to the plaintiff. He had further stated that the property numbered as M.M.I.G. No. A-222 situate at Ekta Vihar North Moradabad was constructed by the defendant from his own income. Still further, it was stated that the property in question was purchased by the plaintiff on 7.10.2009 from the actual owner Sri Faizan Khan son of Babban Khan and the plaintiff, thereafter with an intention to sell the property to the defendant had entered into an agreement with him that the property would be sold to the defendant for Rs. 8,94,927/- and that at the time of the execution of the agreement for sale Rs. 2,10,000/- were paid to the plaintiff and, thereafter, the plaintiff had put the defendant into actual and physical possession where he was staying ever since the year 2011 peacefully. The defendant had further stated in the written statement that the payment which the defendant had made at the time when the agreement to sell was entered into was of Rs. 2,10,000/- and that was only a part payment. This meant that Rs. 6,84,927/- were still payable. The defendant has further stated that the remaining amount was also in fact paid off subsequently. In the written statement, it had been stated that malafidely despite the fact that the complete payment was made and despite the fact that the defendant had asked for the execution of the sale deed on various occasions the plaintiff had dishonestly filed the Suit in question treating the defendant a tenant. During the pendency of the suit, when almost 5 years had passed, an application under Order XV Rule 5 of the C.P.C. was filed by the plaintiff/opposite party on 24.1.2023 (paper no. 51ga), to which the applicant-defendant had objected on 13.2.2023. To prove the fact that the defendant had paid to the plaintiff various amounts as sale consideration, the applicant-defendant had also filed a statement of account of the Account No. 16257300000104 as an evidence in the case.

4. The Trial Court / Additional District Judge, Court No. 5, Moradabad, when had allowed the application under Order XV Rule 5 of the C.P.C. and had struck off the defence of the defendant/applicant in the Revision by his order dated 29.3.2023, the instant S.C.C. Revision No. 55 of 2023 was filed in this Court.

5. Before the learned Single Judge there were 4 decisions which were placed by the counsel for the defendant/revisionist, namely, Civil Revision No. 1363 of 1975: Maqsood Ali Vs. Shamsher Khan, decided on 03.01.1979, Civil Revision No. 1134 of 1978: Thakur Prasad alias Bhola Nath Vs. Gur Prasad, decided on 12.01.1979, Civil misc. Writ Petition No. 8631 of 1984: Ashma Bibi Vs. Ahsan Ali and another, decided on 07.02.1990 and Civil Misc. Writ Petition No. 4822 of 1991: Jai Chandra Gangwar Vs. IIIrd Additional District Judge, Farrukhabad and others, decided on 29.09.1994, stating that the Judge Small Causes Court had first to decide, the issue whether the relationship of landlord-tenant existed, which had to be decided at the first instance when the relationship was denied by the defendant.

6. The counsel appearing for the plaintiff-opposite party had, however, relied upon the judgements reported in 2015 0 Supreme (All) 3530 : Maya Devi and Anr. vs. Vipin Kumar Kushwaha and Anr; 2008 (71) ALR 892 : Pradyaman Jee v. Special/Additional District Judge, Ballia and others, 2011 (89) ALR 655 : Mukesh Singh and another vs. Ramesh Chand Solanki and 2012 (92) ALR 526 : Yusuful Haq @ Yusuf and others vs. Smt. Ghayyur Fatma and others, wherein it was held that whether the landlord -tenant relationship was accepted or denied by the defendant, it was essential on the part of the defendant to deposit the rent from month to month as per the Order XV Rule 5 of the C.P.C. and the question with regard to the relationship of landlord and tenant was to be looked into at the time of the final hearing of the Suit. Since there were contrary views taken in the two sets of decisions, the learned Single Judge had made the reference.

7. Learned counsel for the applicant in the Revision/defendant has submitted that a bare perusal of the provisions of Order XV Rule 5 of the C.P.C. as were applicable in the State of U.P., it was clear that when any suit by a lessor for the eviction of a lessee was filed after the determination of lease for the eviction of the lessee and for the recovery of arrears of rent from him, then only all the "admitted rent or compensation" for use and occupation of the premises had to be deposited by the defendant at or before "the first hearing of the Suit". This amount would include the arrears admitted by him along with the interest thereon at the rate of 9 per cent per annum.

8. He had further submitted that the order XV Rule 5 of the C.P.C. very clearly had stated that whether or not there was an admission on the part of the tenant that any amount was due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual. Learned counsel for the revisionist-applicant had also stated that in the event there was any default in the making the deposit of the entire amount due or the monthly amount due, then the Court had to, after considering any representation made by the defendant as per Clause 2 of the Order XV Rule 5 of the C.P.C., strike off the defence of the defendant. Relying upon the Explanation 1 of the Order XV Rule 5 of the C.P.C., learned counsel for the revisionist-applicant had stated that 'first hearing' would mean the date of filing of the written statement or the date for hearing mentioned in the summons or where more than one of such dates of hearing were there then the last date of hearing mentioned in the summon would be considered as the first date of hearing.

9. Learned counsel for the applicant-revisionist Sri Iqbal Ahmad has further stated that the explanation 2 of the Order XV Rule 5 of the C.P.C. has explained the expression "entire gross amount admitted by him to be due". Further learned counsel for the applicant-revisionist has shown to the Court the explanation 3 which explains the expression "monthly amount due" and he states that as per the explanation given in explanation 3 of the Order XV Rule 5 of the C.P.C. "monthly amount due" meant the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent.

10. Learned counsel for the applicant-revisionist, therefore, has submitted that the Order XV Rule 5 of the C.P.C. was a very clear piece of legislation and any wrong interpretation to it could not be permitted, as by doing so, the meaning of the provision of Order XV Rule 5 of the C.P.C. would be changed. He states that the provision, as was contained in Order XV Rule 5 of the C.P.C., was unambiguous and there were no two interpretation possible of it. He also states that if any distorted interpretation is made then it would result in an absurdity.

11. Learned counsel for the applicant-revisionist states that as per the explanation 3 of the Order XV Rule 5 of the C.P.C., the monthly amount due had to be calculated at the admitted rate of rent. He states that if there was an admitted rate of rent then only could there be any amount said to be due before the first hearing. He further states that if there was any admitted rate of rent by an actual tenant only then the question of payment of month to month rent would arise.

12. Learned counsel for the Revisionist states that the Provincial Small Cause Courts Act, 1887 has also contemplated that if there was serious dispute raised by the defendants with regard to the title of the plaintiff and with regard to the relationship between the landlord and tenant then the Court could at any stage of the proceedings return the plaint to be presented to the Court having the jurisdiction to determine the title. In this regard, learned counsel for the Revisionist read out the contents of section 23(1) of the Provincial Small Cause Courts Act, 1887 which is reproduced here as under :-

23. Return of plaints in suits involving questions of title.- (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

13. Learned counsel for the Revisionist has also relied upon the judgment of the Supreme Court in Budhu Mal vs. Mahabir Prasad and others reported in (1988) 4 SCC 194 and since he relied heavily on paragraph 10 of the judgment, the same is being reproduced here as under :-

"10. It is true that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question would not be cognizable by a Court of Small Causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced."

14. Learned counsel for the Revisionist has also relied upon the decisions of the Supreme Court in Rameshwar Dayal vs. Banda (dead) through his Lrs. And others reported in (1993) 1 SCC 531 and Nirmal Jeet Singh Hoon vs. Irtiza Hussain and others reported in (2010) 14 SCC 564 which judgments clearly were to the effect that if the defendant denied the title of the applicant seriously then it was in the discretion of the Court to return the plaint for being presented to a Court having jurisdiction to determine the title.

15. Learned counsel for the revisionist- applicant thereafter dealt with the judgements as were cited by the plaintiff-opposite party and submitted that when Maya Devi and Another vs. Vipin Kumar Kushwaha and another reported in 2016 (3) ARC 474 was saying that there were two parts of Order XV Rule 5 of the C.P.C. then it had erred in law. Learned counsel for the revisionist-applicant states that when the decision in Maya Devi (supra) had stated that the first part dealt with the deposit of the amount admitted by the tenant to be due on the first hearing and the second part dealt with the law that when the relationship of tenant and landlord was denied then the monthly amount due was to be deposited whether it was admitted by the tenant or not then he submits that the Court erred in law as the payment had to be done of the admitted rent only and only when the relationship of tenant and landlord was established/admitted. He, therefore, submits that the Court in the judgement reported in 2008 (71) ALR 892 : Pradyuman Jee v. Special/Additional District Judge, Ballia, decided on 2.4.2008 also erred in law when it had stated that if the defendant denies the existence of relationship between the landlord and tenant then he may not be required to deposit the amount as is referred in the first part of Order XV Rule 5 of the C.P.C. but he would still deposit the monthly amount due as per the second part of the Order XV Rule 5 of the C.P.C.

16. Learned counsel for the revisionist-applicant, to explain that the judgement had erroneously stated that when the relationship of landlord and tenant had been denied tenant had to pay the monthly rent, read out paragraph no. 11 of the judgement in Pradyuman Jee (supra) and compared it with the provision of Order XV Rule 5 of the C.P.C.

17. Since the learned counsel for the revisionist-applicant compared the law as had been laid down in Pradyuman Jee (supra) and the Order XV Rule 5 of the C.P.C., the paragraph no. 11 of the aforesaid judgement and the Order XV Rule 5 of the C.P.C. are being reproduced here as under;

11. It is, therefore, clear that Order XV Rule 5 CPC is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case 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 whether or not he admits any amount to be due.

Order XV Rule 5 C.P.C.

Striking off defence for failure to deposit admitted rent, etc.-(1) 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 cent 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 the 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 an 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."

18. Learned counsel for the revisionist-applicant has therefore submitted that nowhere in the Order XV Rule 5 of the C.P.C. it had been stated that if the relationship between tenant-landlord had been denied then also the defendant would have to deposit the monthly amount due at the admitted rate of rent.

19. Learned counsel for the revisionist-applicant submitted that the judgement of the Supreme Court reported in 2022 8 ADJ 572 (SC) : Asha Rani Gupta vs. Vineet Kumar, which had been heavily relied upon by the J.S.C.C. had stated that whether the defendant has not denied his status of being the lessee it was imperative for him to have scrupulously complied with the provisions of Order XV Rule 5 of C.P.C. i.e. he had to pay the arrears of rent due and he was also required to make regular deposits of the monthly amount due. However, he states that definitely the Supreme Court had stated that in every case of denial of relationship of landlord and tenant, the defendant would not enjoy the luxury of not paying the monthly rent. He submits that the judgement in Asha Rani Gupta (supra), the Supreme Court had stated that when there was a denial of the title of the plaintiff by the defendant and also of the relationship of the landlord and tenant then such denial simplicitor did not mean that it would absolve the tenant/lessee to deposit the due amount of rent. He submits that the Supreme Court had stated that this question was a question of fact and was to be determined in every case with reference to its fact but it could not be stated to be a general proposition of law that the mere denying of title of the plaintiff or the relationship of landlord and tenant between the plaintiff and the defendant, the latter would be absolved of the duty of depositing the amount as was to be deposited in Order XV Rule 5 of the C.P.C.

20. Learned counsel for the applicant has stated that the judgment in Asha Rani Gupta (supra) has virtually reiterated what section 23 of the Provincial Small Cause Courts Act, 1887 has stated.

21. Learned counsel for the applicant in the Revision, to bolster his case, relied upon paragraphs no. 12, 12.1, 13 and 14 of judgement in Asha Rani Gupta (supra) and therefore they are being reproduced here as under:

"12. Reverting to the provisions under consideration, it is noticed that while the first part of sub-rule (1) of Rule 5 of Order XV CPC requires deposit of the admitted due amount of rent together with interest, the second part thereof mandates that whether or not the tenant admits the amount to be due, he has to, throughout the continuation of the suit, regularly deposit monthly amount due within a week from the date of its accrual. Read as a whole, it is but clear that Order XV Rule 5 CPC embodies the fundamental principle that there is no holidaying for a tenant in payment of rent or damages for use and occupation, whether the lease is subsisting or it has been determined. The only basic requirement in the suit of the nature envisaged by Order XV Rule 5 CPC is the character of defendant as being the lessee/tenant in the suit premises. Viewed from this angle, we are not inclined to accept the line of thought in some of the decisions of the High Court that in every case of denial of relationship of landlord and tenant, the defendant in suit for eviction and recovery of rent/damages could enjoy holidays as regards payment of rent.

12.1. For what has been discussed hereinabove, the decision of the High Court in Ladly Prasad (supra) does not require much dilation when it remains indisputable that it is not always obligatory on the Court to strike off the defence. However, the said decision cannot be read to mean that despite default of the tenant in payment of rent, the defence has to be permitted irrespective of its baselessness. The decision in Kunwar Baldevji (supra), again, would have no application to the facts of the present case. Herein, the defendant-respondent has not only omitted to deposit the rent on the first date of the hearing but, has also omitted to deposit the accrued rent during the pendency of the suit.

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.

14. In the context of the proposition of denial of title of the plaintiff and denial of relationship of landlord and tenant between the plaintiff and defendant, we may also observe that such a denial simpliciter does not and cannot absolve the lessee/tenant to deposit the due amount of rent/damages for use and occupation, unless he could show having made such payment in a lawful and bona fide manner. Of course, the question of bona fide is a question of fact, to be determined in every case with reference to its facts but, it cannot be laid down as a general proposition that by merely denying the title of plaintiff or relationship of landlordtenant/lessor-lessee, a defendant of the suit of the present nature could enjoy the property during the pendency of the suit without depositing the amount of rent/damages."

22. Learned counsel for the revisionist-applicant, therefore, submitted that the Supreme Court in Asha Rani Gupta (supra) definitely did not lay down the law that in simply all cases where the defendant denied the relationship of landlord and tenant, the defendant as per the Order XV Rule 5 of the C.P.C. would still have to pay the monthly amount due even if it was absolved from paying the arrears due at the time of first hearing.

23. Learned counsel for the revisionist-applicant, thereafter, heavily relied upon a decision of this Court reported in 2003 (51) ALR 758 : Kunwar Baldevji and etc. vs. The XI Additional District Judge, Bulandshahr and others and had submitted that the question whether the defendant had to pay the monthly rent even if he denied that any amount done was no longer res intergra as in the Division Bench, aforementioned, it had very clearly been stated that the provisions of Order XV Rule 5 of the C.P.C. were unambiguous and clear and only the "rent admitted" by the tenant had to be deposited as per the provisions of Order XV Rule 5 C.P.C. He submits that if the tenant denies any rent to be due then the Court as per the Division Bench judgement in Kunwar Baldevji (supra) had to adjudicate on the allegation and that finding could be given only after the first date of hearing. Since the learned counsel for the applicant read out the paragraphs no. 12 and 13 of the judgement, they are being reproduced here as under:-

"12. Having considered the aforesaid decisions we find that the language of Order 15, 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 exists 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 15, 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 led evidence in accordance with law.

24. Learned counsel for the applicant also heavily relied upon a judgement of this Court reported in 2017 All.C.J. 1415 : Krishna Kumar Gupta vs. Manoj Kumar Sahu and had submitted that if the relationship of landlord and tenant or lessor and lessee is not admitted by the defendant then the provisions of Order XV Rule 5 of the C.P.C. would not be applicable. Since the learned counsel for the revisionist read out the paragraph no. 13 of the judgement, it is being reproduced here as under:-

"13. One of the common features in the two categories, which is reflected by the use of words "admitted rate of rent" in both Explanation 2 and Explanation 3 of Order XV, Rule 5, C.P.C., is that there has to be an admitted jural relationship of lessor and lessee (landlord and tenant) between the plaintiff and defendant. A fortiori, if the relationship of landlord and tenant or lessor and lessee is not admitted by the defendant between the plaintiff and him, the provisions of Order XV, Rule 5, C.P.C. would not be applicable.

25. Learned counsel for the applicant-revisionist, therefore, submitted that the four judgements which have been relied upon by the revisionist and which have found mention in the order of the learned Single Judge dated 18.5.2023 laid down the correct law. He, however, submitted that as per the decision of Supreme Court in Asha Rani Gupta (Supra) read along with Section 23 of the Provincial Small Causes Court Act, 1887, the court below had to see as to whether the denial of the relationship of the landlord and tenant was denial simplicitor or whether it was an actual denial based on evidence. He, therefore, submits that if there was a denial of the relationship and was based on evidence then the Court will have to adjudicate upon the denial and its finding could be given subsequent to the first date of hearing as was contemplated under Order XV Rule 5 of the C.P.C.

26. Learned counsel for the plaintiff-opposite party in the Revision Sri Ashish Agrawal, however, in reply submitted that even if there was a denial of landlord-tenant relationship by the defendant, the defendant would not be absolved of the responsibility of depositing the monthly rent due and he heavily relied upon 2016 (3) ARC 474 : Maya Devi and another vs. Vipin Kumar Kushwaha and another, 2011 (2) ADJ 777 : Ram Chandra Srivastava vs. VIIth Additional District Judge, Barabanki an dothers, 2015 (1) AWJ 874 : Sri Ram Agarwal vs. Smt. Sheela Devi, 2022 (8) ADJ 572 : Asha Rani Gupta vs. Sri Vineet Kumar, 2012 (3) ADJ 298 : Dinesh Enameled Wire Industries Private Ltd. vs. M/s Swastik Udyog and others, 1983 ARC 651 : Mahboob alias Challa v. Mohammad Hussain, 2006 (1) ADJ 197 : Haider Abbas vs. Additional District Judge and others, 2002 (3) SCC 676 : Shrimant Shanrao Suryavanshi & anr vs. Pralhad Bhairoba Suryavanshi (D) by Lrs. & Ors, 1996 (2) ARC 285 : Bal Krishna vs. Ramanand Dixit, 1981 (3) SCC 486 : Bimal Chand Jain vs. Gopal Agarwal, 2018 Suppl. ADJ 464 : Vineet Kumar vs. Upper District Judge, Court No. 4 and others, 2011 (3) ARC 592 : Mukesh Singh and another vs. Shri Ramesh Chand Solanki and 2008 (71) ALR 892 : Pradyuman Jee vs. Special/Additional District Judge, Ballia.

27. Learned counsel for the plaintiff - opposite party in the Revision submitted, relying upon the above judgements that even when there was a denial by the defendant of the relationship of landlord and tenant, the defendant had to pay the monthly rent from month to month as per the provisions of Order XV Rule 5 of the C.P.C..

28. Analysing the judgements as have been cited by the plaintiff - opposite party in 2012 (3) ADJ 298 : Dinesh Enameled Wire Industries Prvt. Ltd vs. M/s. Swastik Udyog and others we find that it supports the defendants case inasmuch as it has in clear word stated that the learned Division Bench in Kunwar Baldevji (supra) was a correct law. The judgement cited by the defendant in 2006 (1) ADJ 197 : Hairder Abbas vs. Additional District Judge and others was with regard to the law as to whether the amounts deposited under Section 30 of the Rent Control Act and should be adjusted towards the payment under Order XV Rule 5 CPC. The judgement of 1996 (2) ARC 285 : Bal Krishna vs. Ramanand Dixit and Ors. also does not relate to the present question at hand.

29. Having heard the learned counsel for the parties, this Court opines that a bare reading of Order XV Rule 5 of the C.P.C. shows that upon the filing of a Suit by a lessor for the eviction of a lessee and for the recovery from him of the rent or compensation the defendant shall at or before the first hearing of the Suit deposit the entire amount admitted by him to be due together with the interest thereon @ 9 % per annum and that the Order XV Rule 5 of the C.P.C. further goes on to say that even if the defendant does not admit 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 if there was a default then the Court may, subject to the decision to be taken under Order XV Rule 5 (2) of the C.P.C., strike off the defence of the defendant. The Court also finds that the expression "entire amount admitted by him to be due" has been explained under the explanation 2 which means the "entire gross amount".

30. The Court also finds that the explanation 3 clearly explains "the monthly amount due" and as per the explanation it would be the "admitted" rate of rent. A perusal of the Order XV Rule 5 of the C.P.C. definitely does not show that if the defendant denied the relationship of landlord and tenant then there was a compulsion on the defendant to pay the rent from month to month as had been held in the four judgements cited by the plaintiff and have been noted by the learned Single Judge in his order dated 18.5.2023. In the judgement of the Division Bench in Kunwar Baldevji (supra), the Court very clearly states that there was no requirement to interpret the Order XV Rule 5 of the C.P.C. when it is absolutely unambiguous and clear. There was no occasion to stretch the meaning of the expression "rent admitted by the tenant to be due" should mean "rent found by the Court to be due......" It states that the question of interpretation of a statutory provision arises only when the provision is ambiguous or admits of two interpretation or the interpretation is required to save the provision from being declared void. The judgement in Kunwar Baldevji (supra) clearly states that with regard to Order XV Rule 5 of the C.P.C. no such contingency exists. Relying upon Kunwar Baldevji (supra), we also hold that only admitted rent would have to be paid when arrears were being paid. This Court further opines in view of the judgement of Asha Rani Gupta(supra) and in view of section 23 of the Provisional Small Cause Courts Act 1887 that if there was a case of denial of the relationship of landlord by the defendant then not in every case the defendant would be absolved of the responsibility of paying the month to month rent. A denial simplicitor did not absolve the defendant of the responsibility to pay the month to month rent. The denial had to be bonafide and that question could be determined in every case with reference to its facts and it cannot be laid down that a simple mere denial of title of the plaintiff or the relationship of landlord - tenant, the defendant of a Suit could be absolved from paying the monthly rent as per the provisions of Order XV Rule 5 of C.P.C. This is also the law as had been laid down by the Supreme Court in Budhu Mal vs. Mahabir Prasad and others reported in (1988) 4 SCC 194 which had stated that the plaint had to be returned for a definite adjudication of a Civil Court in case there was a serious dispute with regard to the title. The Court, therefore, as per us, definitely would have to look into the degree of the denial.

31. Ultimately, this Court answers the reference in the following manner :

(I) In a suit for eviction, on the determination of lease if the lessee admits that there was rent due then at or before the first hearing of the suit he shall pay the entire admitted amount along with interest thereon at the rate of 9% per annum.

(ii) If he does not admit any amount to be due then he would throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual.

(iii) Default of the above two would give the Court a right to strike off the defence, subject to the provisions of sub-rule (2) of Order XV Rule 5 of the C.P.C. which gives the defendant an opportunity to represent within ten days from the first hearing.

(iv) As per the explanation-II of Order XV Rule 2 C.P.C., the entire amount admitted by the defendant-lessee has to be construed as the entire gross amount whether as rent or compensation for use and occupation, calculated at the "admitted rate of rent" for the admitted period.

(v) The monthly amount due which had to be paid within one week after the monthly amount payable became due was also to be paid at the "admitted rate of rent".

(vi) The law, as had been laid down in paragraph no.11 of Pradyuman Jee vs. Special/Additional District Judge, Ballia reported in 2008 (71) ALR 892 which had stated that if the defendant denies the existence of the landlord-tenant relationship then 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, is not a correct law. Order XV Rule 5 of C.P.C. does not talk about the denial of the landlord-tenant relationship. It only talks about "admitted rent".

(vii) As per the judgment of Kunwar Baldevji and etc. vs. The XI Additional District Judge, Bulandshahr & Ors. reported in (2003) 51 ALR 758 if the amount of rent is not admitted then it is required to be adjudicated by the Court. In case, the tenant/defendant denies any rent to be due, the Court would be required to decide the same. Obviously then the Court will have to adjudicate and arrive at a finding at the first date of hearing contemplated under Order XV Rule 5 CPC as to what is the rent and what is payable. This issue has to be framed and thereafter adjudicated upon on the leading of evidence of the parties.

(viii) If the tenant-defendant denies the relationship of landlord-tenant then as per the judgment of the Supreme Court in Asha Rani Gupta vs. Vineet Kumar reported in (2022) 8 ADJ 572 (SC) and as per the provisions of section 23 of the Provincial Small Cause Courts Act, 1887, the Court will have to determine whether the question raised by the defendant with regard to title of the plaintiff was a serious one or whether the denial of the title was a question which was to be determined with the help of evidence which would be led by the parties. If the denial was a definite denial with substantial evidence then the Court of Small Causes, which did not have the jurisdiction/authority to determine the title of the plaintiff, would have the discretion to return the plaint at any stage of the proceedings to be presented before the Court having jurisdiction to determine the title.

32. The reference is thus, accordingly, answered.

33. Since an interim order was granted in favour of the defendant by the learned Single Judge while making the reference, we provide that the interim order would continue till the decision of the Revision. The case may now be listed before the learned Single Judge.

Order Date :- 22.12.2023

(Siddhartha Varma, J.)

(Siddharth, J.)