Lal Bahadur v. District Judge — 1981 DIGILAW 424 (ALL)

Judgment S.D. Agarwala, J. 1. THIS is a petition under Article 226 of the Constitution of India arising out of proceedings in a small causes court suit no. 37 of 1978 filed by the opposite parties Nos. 3 and 4 Shrimati Sudama Devi and Smt. Prabha Devi against the petitioner Lal Bahadur. The property in dispute is a portion of House No. 117/3, Khuldabad, Allahabad. The above mentioned suit was filed by the respondents Nos. 3 and 4 against the petitioner for ejectment and for recovery of arrears of rent and damages. During the pendency of the suit on 14th February, 1979 an application was made by the opposite parties Nos. 3 and 4 under Order 15 Rule 5 C.P.C. seeking an order of the court striking off the defence as according to the opposite parties Nos. 3 and 4 the petitioner had not complied with the requirement of Order 15 Rule 5 C. P. C. The application was allowed by the Judge Small Causes Court, Allahabad by his order dated 7-7-79. It was held by the court that the petitioner had not deposited the amount of rent as required by the provisions of Order 15 Rule 5 C. P. C. and as such the defence was struck off. Against the order dated 7-7-79 the petitioner filed a revision in the court of the District Judge, Allahabad. The revisional court agreed with the conclusion of the Judge Small Causes Court and dismissed the revision on 10th September, 1979. Aggrieved by the decision of the District Judge dated 10th September, 1979 the present petition has been filed in this Court. 2. I have heard the learned counsel for the parties. Learned counsel for the petitioner has raised three contentions before me. His first contention is that for the purpose of Order 15 Rule 5 C. P. C. the court has to see whether the deposit has been made or not in relation to the date for moving of the application for striking off the defence. The submission is that on 14th February, 1979 when the application was made by the opposite parties Nos. 3 and 4 for striking off the defence the entire amount of rent had already been deposited and as such the courts below have no jurisdiction to strike off the defence of the petitioner. The submission is that on 14th February, 1979 when the application was made by the opposite parties Nos. 3 and 4 for striking off the defence the entire amount of rent had already been deposited and as such the courts below have no jurisdiction to strike off the defence of the petitioner. The second submission of the learned counsel is that the provisions of Order 15 Rule 5 C. P. C. are directory and even if there has been a default in complying with the Order 15 R. 5 C. P. C. the court in the instant case should have applied its discretion in not striking off the defence. The third submission of the learned counsel is that since in the instant case there was a dispute as to whether the opposite parties Nos. 3 and 4 were landlords or not, it cannot be held that the admitted rent was due from the petitioner and as such also the provisions of Order 15 Rule 5 C. P. C. would not apply. 3. ORDER 15 Rule 5 C. P. C. is in the following terms:- * * * * * 4. ORDER 15 Rule 5 C. P. C. clearly provides that the tenant has to deposit the admitted rent on or before the first hearing of the suit along with interest thereon at the rate of 9 percent per annum. It further provides that for a subsequent period, namely, during the continuance of the suit the tenant is obliged to deposit rent regularly within a week from the date of its accrual whether the said amount according to him is admitted or not. The court therefore, has to examine whether the deposit has been made by the tenant on the first hearing of the suit and thereafter every month during the continuance of the suit. It could not possibly be held as urged by the learned counsel for the petitioner that the relevant date would be the date of moving an application by the landlord for striking off the defence, namely 14th February, 1979 in the present case. In fact, on a reading of Order 15 Rule 5 C. P. C. this provision can also be suo moto exercised by the courts and it is not mandatory for the landlord to move an application for striking off the defence. In fact, on a reading of Order 15 Rule 5 C. P. C. this provision can also be suo moto exercised by the courts and it is not mandatory for the landlord to move an application for striking off the defence. In this view of the matter, I am of the opinion that the date of moving of the application by the landlords cannot possibly be deemed as the relevant date on which the court should examine whether there has been a default in complying with the provisions of Order 15 Rule 5 C. P. C. or not. The first submission made by the learned counsel for the petitioner, therefore, in my opinion is not well founded. 5. IN regard to the second submission, learned counsel has placed reliance on Miss Santosh Mehta v. Om Prakash, AIR 1980 SC 1664 . Learned counsel has relied on certain observations made by the Supreme Court in a case under the Delhi Rent Control Act. The provisions of Order 15 Rule 5 C.P.C. as amended by the U. P. Legislature are entirely different from that which came up for inter- pretation before the Supreme Court in the case of Santosh Mehta. The Division Bench of this Court in Pooran Chand v. Pravin Gupta, 1980 AWC 712 , to whom a reference had been made in view of certain conflicting decisions of learned Single Judges of this Court was called upon to interpret Order 15 Rule 5 C. P. C. as amended by the Legislature. After interpreting various provisions it has been held that the provisions of Order 15 Rule 5 C.P.C. are mandatory. It has been further held that if a representation is not made within the specified period of time, as required by Order 15 Rule 5 (2) C. P. C. then the court has no jurisdiction to consider the time-barred representation or condone the delay or extend the time. I am bound by this decision. 6. IN the instant case, admittedly there has been a default in complying with the provisions of Order 15 Rule 5 C. P. C. Further it is admitted on record that there was no representation made as required by sub-clause (2) of Order 15 Rule 5 C. P. C. IN this view of the matter I am of the opinion that the second submission made by the learned counsel also does not have substance. In regard to the last submission raised by the learned counsel, as I have already indicated above, the deposit so far as the amount due before the first date of hearing has to be of the admitted amount. During the continuation of the suit whether the amount has been admitted or not the tenant is obliged to deposit the same. In the instant case, admittedly there has been no compliance by the tenant of depositing the amount of monthly rent in accordance with the provisions of Order 15 Rule 5 C. P. C. during the continuation of the suit. In this view of the matter even if the argument of the learned counsel for the petitioner is accepted then too since there has been a default in depositing the rent during continuation of the suit, the defence of the petitioner is liable to be struck off. This submission made by the learned counsel for the petitioner would not help the petitioner at all but in any case I would like to discuss this question also as it has been urged at length by the learned counsel for the petitioner. 7. THE Judge Small Causes Court as well as the revisional court after examining various paragraphs of the written statement came to the conclusion that the petitioner had admitted the respondents Nos. 3 and 4 as his landlords. In view of this decision it cannot be said that there was any dispute in regard to the relationship of landlord and tenant in the instant case. 8. I have also examined the written statement filed by the petitioner in the instant case. On a reading of the written statement it is clear that the petitioner specifically denied the plaintiffs' case that he had denied the title of the plaintiffs and ultimately it is his own case as set out in paragraph 20 that he approached the opposite parties 3 and 4 to pay rent and that they avoided to take the rent on one pretext or the other. It was thereafter that they deposited the rent, and that too in the name of opposite parties Nos. 3 and 4 in the court under Section 30 of the Act. Paragraph 22 of the written statement is very specific which is as follows:- "22. It was thereafter that they deposited the rent, and that too in the name of opposite parties Nos. 3 and 4 in the court under Section 30 of the Act. Paragraph 22 of the written statement is very specific which is as follows:- "22. That the defendant has neither committed default nor he has denied the title as such the suit is not maintainable." This paragraph 22 makes it absolutely clear that the petitioner does not deny the relationship of the landlord and tenant between the petitioner and the opposite parties Nos. 3 and 4 and therefore, it cannot be said that the finding recorded by the court below is manifestly erroneous. In view of the above, I find no force in third submission made by the learned counsel for the petitioner. 9. IN the result the petition fails and is accordingly dismissed. Parties are directed to bear their own costs. Petition dismissed.