Allahabad High Court
Waseem Ahmad @ Abdul Waseem vs Hazi Abdul Gaffar on 15 May, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:87840
Court No. - 50
Case :- MATTERS UNDER ARTICLE 227 No. - 5024 of 2024
Petitioner :- Waseem Ahmad @ Abdul Waseem
Respondent :- Hazi Abdul Gaffar
Counsel for Petitioner :- Babu Lal Ram,Subhash Chand
Counsel for Respondent :- Divakar Rai Sharma
Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioner and Sri Divakar Rai Sharma along with Sri Ajeet Rai Sharma, learned counsel for the respondent.
2. Present petition has been filed with prayer to set aside order dated 29.08.2023 passed by Judges of Small Causes Court, Aligarh in SCC No. 54 of 2013 as well as order dated 30.11.2023 passed by District Judge/Judges of Small Causes Court, Aligarh in SCC Revision No. 102 of 2023.
3. Learned counsel for the petitioner-defendant submitted that earlier an SCC Suit was by the respondent-plaintiff, which was registered as SCC Suit No. 54 of 2013, upon which on the first date of appearance, petitioner-defendant complying with the provision of Order 15 Rule 5 CPC has deposited the entire amount of rent due on the first date of hearing. He next submitted that during the pendency of the aforesaid suit, respondent-plaintiff has filed application under Order 15 Rule 5 CPC dated 16.03.2023 to strike of the defence of petitioner-defendant with allegation that petitioner-defendant has not complied with the provision of Order 15 Rule 5 CPC. He next submitted that petitioner-defendant filed reply dated 27.03.2023 with specific averment that he has deposited Rs. 85,500/- of rent through challan dated 02.01.2017, Rs. 1,10,000/- dated 03.09.2021 and thereafter, by another challan dated 27.03.2023 before the SCC Court, therefore, there is no default at the end of the petitioner-defendant. He next submitted that learned SCC Court without considering challan dated 27.03.2023 has allowed application under Order 15 Rule 5 CPC filed by the respondent-plaintiff striking of the defence of petitioner-defendant vide impugned order dated 29.08.2023. Against order dated 29.08.2023, petitioner-defendant filed SCC Revision No. 102 of 2023, which was also rejected vide order dated 30.11.2023.
4. Sri Divakar Rai Sharma, learned counsel for the respondent vehemently opposed the submission of learned counsel for the petitioner-defendant and submitted that petitioner-defendant has only submitted the aforesaid challans before the SCC Court, but the same have never been pressed before the Court and subsequently, no amount of challan has ever been deposited by the petitioner-defendant. He next submitted that it is admitted case of petitioner that he has filed second chalan dated 03.09.2021 and third challan on 27.03.2023 before SCC Court after more than four years and six years respectively from the first date of hearing, which were also neither pressed by the petitioner-defendant, nor passed by SCC Court. He next submitted that even if assuming it not admitting that the aforesaid challan was passed by the SCC Court, there is admitted delay of four and six years respectively from the first date of hearing to deposit the remaining amount, whereas, under provisions of Order 15 Rule 5 CPC, it is required to deposit the rent on month to month basis. He next submitted that Division Bench of this Court in the matter of Bhure Khan Warsi Vs. Mohd Israr: 2023:AHC:242856-DB, decided on 22.12.2023 has opined that in case of delay of 10 days, Court may permit the tenant to deposit the rent, but in the present case, the facts are undisputed that till date not a single penny has been deposited by the petitioner-defendant either on the first date of hearing or thereafter and only formality of filing challan has been done by submitting the challan before the SCC Court without pressing the same. He next submitted that as the amount of rent was never deducted, therefore, petitioner-defendant must have been aware that no rent has been paid.
5. He next submitted that as the aforesaid challans were only submitted, but never passed by the SCC Court resulting in non deposit of amount of rent, therefore, there is no illegality in the impugned orders dated 29.08.2023 and 30.11.2023.
6. I have considered the rival submission made by learned counsel for the parties, perused the record and the judgments relied upon.
7. The facts of the case are undisputed between the parties. It is undisputed that first challan was only submitted before the SCC Court on 02.01.2017 but the same was never pressed resulting into non deposit of amount of rent. It is also admitted that for payment of rent on month to month basis, no effort has ever been made by the petitioner-defendant and the second and third challan dated 03.09.2021 and 27.03.2023 respectively were also only submitted before the SCC Court after more than four years and six years respectively from the date of first hearing, which is in gross violation of Order 15 Rule 5 CPC. Devision Bench of this Court in the matter of Bhure Khan Warsi(Supra) has held as under:
"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."
8. From the perusal of the above quoted paras, it is apparently clear that it is required on the part of the petitioner-defendant to deposit the amount of rent in light of Order 15 Rule 5 CPC on the first date of hearing and thereafter, on month to month basis, which in the present case is admittedly not deposited.
9. Apex Court in the matter of Asha Rani Gupta Vs. Vineet Kumar: (2022) 8 ADJ 572 (SC) has also taken the very same view. Relevant paragraph of the aforesaid judgment is being 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."
10. Now, coming to the present case, as the facts are undisputed that neither any amount of rent has been deposited by the petitioner-defendant on the first date of hearing nor any amount has been deposited on month to month basis. Therefore, I found no infirmity or illegality in the impugned orders dated 29.08.2023 and 30.11.2023.
11. Therefore, petitioner lacks merit and is accordingly dismissed.
12. No order as to costs.
Order Date :- 15.5.2024
ADY
