Kalu Ram v. Rammoo Lal — 1979 DIGILAW 91 (ALL)

ORDER :- This is a defendants revision filed against a judgement of the District Judge, Bulandshahr, dated 22-3-1977, allowing a revision preferred by the plaintiffs under S.25 of the Provincial Small Cause Courts Act. 2. The plaintiffs filed a suit for ejectment of the defendant on the ground that he did not pay the arrears of rent with effect from 1-7-1968 despite the service of notice of demand on 11-4-1974, and, therefore, he was liable to ejectment. The suit was contested by the defendant. He claimed that before the filing of the present suit, the plaintiffs had filed Suit No. 338 of 1971. In the said suit, the defendant had deposited the rent for the period from 1-7-1968 to 31-8-1973, and that after having received the notice of demand, a reply was sent to the plaintiffs informing him of the said deposit. The remaining amount of rent, which had been claimed through the notice of demand, was remitted by Money Order, but as the plaintiffs refused to accept the same, the defendant could not be treated to be defaulter. 3. On the controversies, mentioned above, the Judge Small Causes framed several issues. One of the issues was :- "Whether the rent for the period 1-7-1968 to 31-8-1973 was lawfully deposited by the defendant under O.15, R.5, C.P.C. in the Court of the J.S.C.C., Bulandshahr, in Suit No. 338/71 and the defendant cannot be deemed to be in arrears of rent for the said period ?" 4. The Judge Small Causes held that the deposit of the rent of the aforesaid period made in Suit No. 338 of 1971 was a lawful deposit, and that the plaintiffs were not entitled to treat the defendant a defaulter of the rent for the aforesaid period. On this finding, the suit was dismissed. The plaintiffs took the matter in revision. In revision, the learned District Judge differed with the Judge Small Causes, and holding that since the amount of rent of the aforesaid period had not been tendered to the plaintiffs after the service of notice of demand, the plaintiffs were entitled to a decree for ejectment. The plaintiffs took the matter in revision. In revision, the learned District Judge differed with the Judge Small Causes, and holding that since the amount of rent of the aforesaid period had not been tendered to the plaintiffs after the service of notice of demand, the plaintiffs were entitled to a decree for ejectment. The learned District Judge found that even if the deposit had been made in Suit No. 338 of 1971, that could not enure to the benefit of the defendant inasmuch as after receiving the notice it was incumbent upon the defendant to have tendered the rent for the aforesaid period again despite the deposit which might have been made earlier under O.15, R.5, C.P.C. On these findings, the learned District Judge reversed the finding of the Judge Small Causes and decreed the suit. Aggrieved, the defendant filed the present revision. 5. The sole question that arises for decision in this case is about the effect of the deposit made in Suit No. 338 of 1971. There is no dispute between the parties that rent for the period from 1-7-1968 to 31-8-1973 had been deposited by the defendant in the aforesaid suit. That was also a suit for ejectment brought by the plaintiffs and the deposit had been made by the defendant without any reservation. The said suit had failed, and, thereafter, the present suit had been filed after serving a fresh notice of demand and ejectment. 6. Order 15, R.5, C.P.C., as amended by U.P. Act No. 37 of 1972, made a provision of striking off the defence on non-deposit of admitted rent under the aforesaid provision. Under O.15, R.5, a defendant was made liable to deposit the arrears of rent as well as future monthly damages month by month. In the instant case, while the suit was pending, O.15, R.5 had come into force. As a result of the enactment of O.15, R.5, C.P.C., the defendant made the deposit. The deposit had been made unreservedly in favour of the plaintiffs with the admission made by the defendant that the rent of the aforesaid period had been due to the plaintiffs from the defendant. A deposit made under O.15, R.5, C.P.C. is for the benefit and to the advantage of the plaintiff. The deposit had been made unreservedly in favour of the plaintiffs with the admission made by the defendant that the rent of the aforesaid period had been due to the plaintiffs from the defendant. A deposit made under O.15, R.5, C.P.C. is for the benefit and to the advantage of the plaintiff. This provision had been made by the legislature to discourage the reckless and frivolous litigations and to see that the rightful claim of a plaintiff is not unnecessarily denied to him for long. A deposit made under the said provision is for the benefit and to the advantage of the plaintiff. 7. Order 15, R.5, C.P.C. was amended by U.P. Civil Laws (Reforms end Amendment), Act, 1976 (Act No. 57 of 1976). By the amendment made, it has now been made clear that the amount deposited under this Act may at any time be withdrawn by the plaintiffs. As a result of this amendment, it is clear that the plaintiff is entitled to withdraw the amount whatever is deposited by the defendant. Although at that time there was no such provision in O.15, R.5, C.P.C., but to me it appears that the fact that the deposit under O.15, R.5 was used to be made for the benefit and in the interest of the plaintiff, cannot be denied. If the deposit was made for the benefit of the plaintiff or to his advantage, the plaintiff cannot make a defendant defaulter of the same amount and bring a suit for not paying the same amount after service of another notice of demand. After the deposit was made under O.15, R.5, C.P.C., the amount ceased to be payable by the defendant and could not thus be a subject-matter of a second notice of demand. 8. In R.D. Ramnath and Co. v. Girdhari Lal (1975 All LJ 1), this Court was called upon to decide the scope of S.39 of U.P. Act No. XIII of 1972. In that connection, the Court held that if any amount contemplated by S.39 has been deposited in a Court either in pursuance of some statutory provision entitling the tenant to make such a deposit, or in compliance with an order of the Court, such amount is not due and will not be deposited again in appellate or revisional Court. 9. In that connection, the Court held that if any amount contemplated by S.39 has been deposited in a Court either in pursuance of some statutory provision entitling the tenant to make such a deposit, or in compliance with an order of the Court, such amount is not due and will not be deposited again in appellate or revisional Court. 9. Although the aforesaid case is on the interpretation of S.39, but the principles laid down therein can be taken help of in interpreting O.15, R.5, C.P.C. The principle is that a person cannot be asked to deposit the same amount twice over and failure to deposit the amount which has already been deposited cannot be taken as a round of an action against him. 10. As already observed above, the deposit made under O.15, R.5, C.P.C was for the benefit of the plaintiffs, and irrespective of the fact that the suit had been dismissed, the plaintiffs could withdraw the same. 11. In the instant case, the additional fact which may not be lost sight of was, that the defendant had even written to the plaintiffs informing that he was prepared to help the plaintiff in withdrawing the same. Despite this offer, the plaintiffs did not take the help of the defendant and filed the suit. The plaintiffs were, therefore, not entitled to get a decree against the defendant. 12. In the result, the revision succeeds and is allowed. The judgement of the District Judge dated 22-3-1977 is set aside, and that of the Judge Small Cause Court is restored. In the circumstances, I direct the parties to bear their own costs. Revision allowed.