WPMS/3397/2016
2022 Latest Caselaw 2285 UK

  IN THE HIGH COURT OF UTTARAKHAND
                        AT NAINITAL
             ON THE 26THDAY OF JULY, 2022
                               BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       WRIT PETITION(M/S) No. 3397 of 2016

BETWEEN:

Gulshan Pahwa & others                                   .... Petitioners
      (By Mr. Nikhil Singhal, Advocate)


AND:
Dargah Peer Dariyanath Ji Shrawannath
Nagar, Haridwar & another                            ... Respondents

      (There is no representation for respondents)



                            JUDGMENT

1. This is tenants' petition against the judgment and order dated 11.11.2016 passed by 5th Additional District Judge, Haridwar in SSC Revision No. 35 of 2015. By the said judgment, order passed in S.C.C. Suit No. 4 of 2009 by learned Judge, Small Cause Court/Civil Judge (J.D.), Haridwar was set aside and the matter was remanded back to reconsider on landlord's application filed under Order 15 Rule 5 CPC.

2. The order passed by learned Judge Small Cause Court on 15.07.2015, which was set aside by Revisional Court is on record as Annexure 5 to the writ petition. Perusal of the said order reveals that landlord/plaintiff had filed an application under Order 15 Rule 5 CPC with the contention that the tenant has not complied the provision contained in Order 15 Rule 5 CPC, therefore, his defence deserves to be struck off.

Petitioners filed objection to the said application stating that they had given admitted rent between 01.02.2009 to 31.08.2009 to learned counsel for the plaintiff, and thereafter, the admitted rent is being deposited in court. Learned Judge, Small Cause Court rejected the application filed by landlord on the ground that the lis should be decided after hearing both the parties and the defence of the tenant should not be struck off merely on the ground of slight delay in deposit of admitted rent by tenant. A categorical finding was recorded by learned Judge, Small Cause Court that defendant/tenant has deposited entire admitted rent upto 30.06.2015.

3. Landlord challenged the said order passed by learned Judge, Small Cause Court by filing revision under Section 25 of the Provincial Small Cause Courts Act. Learned 5th Additional District Judge, Haridwar has allowed the revision filed by landlord and set aside the order passed by Judge, Small Cause Court. Feeling aggrieved by the order passed by revisional court, tenant has approached this Court.

4. Before proceeding any further, the provision contained in Order 15 Rule 5 of CPC, as applicable in State of Uttar Pradesh and Uttarakhand, is reproduced below:-

"5. Striking off defence on 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 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 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 or 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 a 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."

5. From perusal of Rule 5(1) of Order 15 CPC, it is apparent that it enables the court to strike off defence of the tenant on his failure to deposit the admitted rent together with interest and also the pendente lite admitted rent. However, the court is not obliged to strike off the defence in every case of default. The law on the point is summarized by Hon'ble Supreme Court in the case of Bimal Das Jain vs. Gopal Agarwal, reported in 1981 (3) SCC 486. Relevant extracts of the said judgment are reproduced below:-

"4. The High Court held in Puran Chand (supra) that if the representation contemplated by sub-rule (2) was not made within the time prescribed therein the court had no jurisdiction to entertain a representation made beyond time and to condone the delay in making it. It held further that where no representation was made, or if made was filed beyond time, the court was bound to strike off the defence and enjoyed no discretion in the matter.

5. It appears on the facts in this case that no representation under sub-rule (2) was made by the appellant. The only question raised before us is whether, in the absence of such representation, the court was obliged to strike off the defence of the appellant.

6. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is

made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub- rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV."

6. Thus, it can be seen that power to strike off defence is not to be exercised by treating it to be a statutory mandate. Since exercise of such power inflicts severe penal consequences, the court has discretion not to strike off, if on facts it finds good reason for not doing so, therefore, the power should be exercised after considering the facts and circumstances appearing on the record and in the event of their being a representation, after considering the representation.

7. Hon'ble Supreme Court in the case of Sangram Singh vs. Election Tribunal, Kotah, Bhurey, reported in AIR 1955 SC 425 has held that rule of procedure are grounded on the principle of natural justice, which requires that men should not be condemned unheard and decision should not be reached behind their back, that proceedings that affect their lives and property should not continue in their absence and they should not be precluded from participating in them.

It was further held that there must be exceptions and where they are clearly defined they must be given effect to; but taken by and large, subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

8. Thus viewed, learned Judge Small Cause Court was justified in rejecting landlord's application filed under Order 15 Rule 5 CPC after finding that sufficient compliance of Order 15 Rule 5 CPC was made by the tenant. However, learned revisional has set aside the order passed by learned Judge, Small Cause Court only on the ground that there was some delay in deposit of admitted rent by the tenant and there is no explanation for such delay.

9. In the humble opinion of this Court, revisional court's interference with the order passed by learned trial court was not warranted in the facts of the case, as it is not obligatory for the court in every case to strike off defence because of some delay in deposit of admitted rent. Since learned trial court has discretion in the matter, which was exercised well within jurisdiction, therefore, learned revisional court fell into error in interfering with the order passed by learned trial court.

10. In the case of Mangat Singh Trilochan Singh & others vs. Satpal, reported in (2003) 8 SCC 357, trial court had refused to strike off defence of the tenant under Order 15 Rule 5, however, the High Court interfered with the order passed by trial court in revisional jurisdiction. Hon'ble Supreme Court held that revisional court was not justified in interfering with an order lawfully passed by the trial court within its

jurisdiction. Para 9 & 13 of the said judgment are extracted below:-

"9. The trial court placed reliance on the decisions of this Court (supra) which have also been relied upon for the tenants before us on the interpretation of the provisions of Order 15 Rule 5 of the Code. This Court has held that it is not obligatory for the court in every case to strike off defence only because there is delay in deposit of the arrears of rent. The court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case.

13. The last submission made on behalf of the tenants has also great force that since the trial court had exercised its jurisdiction lawfully by refusing to strike off defence and accepting the deposit of arrears of rent, the High Court could not justifiably interfere with the same in exercise of its revisional jurisdiction under Section 115 of the Code."

11. For the aforesaid reasons, this Court is of the considered opinion that the judgment rendered by learned 5th Additional District Judge, in SCC Revision No. 35 of 2015 deserves to be set aside.

12. Accordingly, writ petition is allowed. Impugned judgment dated 11.11.2016 passed in SCC Revision No. 35 of 2015 is set aside. As the SSC suit is pending since 2009, learned trial court is requested to make endeavour to decide the suit as early as possible.

(MANOJ KUMAR TIWARI, J.) Navin