Bachchaji Sinha v. Chandra Bhushan — 1981 DIGILAW 652 (ALL)

JUDGMENT V.K. Mehrotra, J. - This is a defendant' second appeal. The suit was decreed for his ejectment from house No. 46 (old) (new No. 71) Talab Nawal Rai, Allahabad by the trial court which also passed a decree for recovery of some amount from him as arrears of rent, damages etc. That decree was affirmed by the lower appellate court. 2. The facts, bereft of unnecessary details, giving rise to this appeal are these; plaintiff Chandra Bhushan is the owner and landlord of the house of which the appellant is a tenant for several years past. The plaintiffs case was that the defendant was in arrears of rent which was due from him at the rate of Rs. 15/- per month for a long time and that he did not pay the amount in arrears in spite of a demand made to him by the plaintiff. The plaintiff claims to have terminated the defendant's tenancy by a notice under S. 106 of the Transfer of Property Act. Since in spite of that notice, the defendant did not vacate the house, apart from his failure to pay the amount of arrears due from him, the necessity arose for the suit out of which arises, the present second appeal. 3. The case of the defendant was that he was not in arrears of any amount by way of damages for he had incurred huge expenditure on behalf of the plaintiff when compelled to do so by the Nagar Mahapalika, Allahabad, that the rate of rent was only Rs. 5/- per month and that the plaintiff's allegation that he was in arrears of any amount due to the plaintiff was incorrect. The defendant also pleaded that nothing was due to the plaintiff from him. 4. The suit was registered on July 27, 1968. The defendant filed a written statement which was verified by him on Nov. 7, 1968. The suit followed a chequered course which it is not necessary to notice in detail for purposes of this appeal. However, it eventually came to be received in the court of the First Addl. Munsif, Allahabad for disposal under the orders of the District Judge towards the end of the year 1971. The District Judge was approached again for transferring the case to another court but that application was rejected on Oct. 28, 1972. Eventually the trial court directed on Feb. Munsif, Allahabad for disposal under the orders of the District Judge towards the end of the year 1971. The District Judge was approached again for transferring the case to another court but that application was rejected on Oct. 28, 1972. Eventually the trial court directed on Feb. 12, 1973 that notices be issued'to the defendant's counsel for March 16, 1973. On that date, as is clear from the order sheet maintained by the court in English, both the parties were present and July 4, 1973 was fixed for final hearing in the suit. On that date, namely, July 4, 1973 an application (paper no. 59-C) was moved on behalf of the plaintiff for striking out the defence of the appellant in accordance with the provisions of U. P. Act 37 of 1972. When the case was called, the defendant was not present nor was he represented by anyone in court. The application was directed to be put up on July 6, 1973 for its disposal. When the case was taken up on July 6, 1973 the defendant was again absent and was not represented as well. The plaintiff was present with his counsel who argued that the defendant had failed to comply with the provisions of R. 5 of O. XV C. P. C. as amended by U. P. Act 37 of 1972 and that his defence should be struck off. The trial court observed in its order of that date, inter alia, as follows :- ........... There is nothing on record to show that defendant had deposited up to date rent and damages and cost of the suit. The application 59-C is allowed and defence of the defendant is struck off. Fix 16-7-73 for argument and judgment." It heard the argument on July 16, 1973 and fixed July 18 for delivery of judgment. On that date an application (paper No. 60-C) made by the defendant for setting aside the order striking off his defence was disposed of. This application also contained a prayer that the defendant be allowed to deposit the rent. The trial court by a detailed order contained in the order sheet maintained in English, dismissed this application. Since judgment was not ready that day, it directed the case to come up for delivery of judgment on the next day. This application also contained a prayer that the defendant be allowed to deposit the rent. The trial court by a detailed order contained in the order sheet maintained in English, dismissed this application. Since judgment was not ready that day, it directed the case to come up for delivery of judgment on the next day. It pronounced the judgment on July 19, 1973 and decreed the suit for the reliefs sought by the plaintiff, including the relief of defendant's ejectment. The suit thus stood decreed after the trial court had decided to proceed ex parte after striking out the appellant's defence. The decree was assailed by the defendant in appeal. The lower appellate court negatived the contention that the defendant's defence had been erroneously struck off. It felt that in the circumstances, the trial court was justified in striking off the defence and to decide the suit on merits in the defendant's absence. It affirmed the decree passed by the trial court. Hence, the present second appeal. 5. The main submission of Sri S.N. Sahai, appearing for the defendant-appellant in this Court has been that the trial court misdirected itself in law in striking out the defence of the appellant in the case on account whereof the defendant was prejudiced and did not have a fair trial. The precise submission is that the court had no jurisdiction to strike out the defence of the appellant for under R. 5 of O. XV, C. P. C. as at stood at the time of the disposal of the suit, it could only strike out the defence in case the defendant had failed to deposit the amount admitted by him to be due by the date of the first hearing of the suit and not otherwise. It has been urged that in paragraph 16 of the written statement it had been specifically averred by the defendant that nothing was due from him to the plaintiff and that he was not liable to ejectment. This submission was reiterated in the application (paper No. 60-C) of the defendant dated July 17, 1973 wherein it was mentioned in paragraph 2 that one of the pleas in defence was that nothing was due to the plaintiff from the defendant and rather more had been paid. This submission was reiterated in the application (paper No. 60-C) of the defendant dated July 17, 1973 wherein it was mentioned in paragraph 2 that one of the pleas in defence was that nothing was due to the plaintiff from the defendant and rather more had been paid. A grievance was also made in this application that no copy of the application (59-C) made by the plaintiff for striking out the defence was ever served on the defendant or his counsel and that the order on that application was passed behind the back of the defendant. It was also pointed out that till the date of the order of the trial court striking out the defence of the appellant, the defendant had not admitted that any amount was due from him to the plaintiff. The learned counsel for the appellant also drew the attention of the court to the statement of the defendant recorded under O. X, R. 2, C. P. C. on Dec. 2, 1969 wherein he had only stated that he had received the notice sent by the plaintiff and had not made any admission of any amount being due from him to the plaintiff. 6. R. 5 as added in O. XV C. P. C. by S. 7 of the Uttar Pradesh Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972) with effect from Sept. 20, 1972 was in the following terms. "5 Striking off defence on non-deposit of admitted rent etc. 6. R. 5 as added in O. XV C. P. C. by S. 7 of the Uttar Pradesh Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972) with effect from Sept. 20, 1972 was in the following terms. "5 Striking off defence on non-deposit of admitted rent etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972 the defendant shall, at or before the first hearing of the suit (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent or compensation for use and occupation admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation, for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may, unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence or, as the case may be, strike off his defence." This rule was repealed and re-enacted by the U. P. Civil Laws (Reforms and Amendment) Act (No. 57 of 1976) and the re-enacted provision which came into force on Jan. 1, 1976 took the following shape:- "5. Striking off defence on failure to deposit admitted rent etc. 1, 1976 took the following shape:- "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 hearings 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 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 of or 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 deposited in any court under S. 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3 - 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 deductions 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 ten days of the first hearing or of the expiry of the week referred to in sub-section (1) as the case may be. (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 ten 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 security for such sum before he is allowed to withdraw the same." 7. Dealing with R. 5 of Order XV as added by U. P. Act No. 37 of 1972- a Division Bench (G.C. Mathur and K. N. Seth, JJ) observed in Ladly Prasad v. Ram Shah Billa (1976 All L J 494) (in paragraphs 4 to 6 of the report) as under: ".......... Order XV relates to disposal of suit at the first hearing. This stage is arrived after the defendant has filed his written statement, the parties have been examined under Order X if considered necessary to clarify the points in controversy, documents, on which parties rely have been produced and admission and denial obtained and necessary issues framed as provided under Order XIV. After the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order XV comes into play. This is anterior to the stage when the parties examine their witnesses. At the stage of R. 5 of Order XV the court is not required to record finding on disputed questions of fact which can be done only after the parties have led evidence in support of their conflicting claims. 6. Under R. 5 the defendant is required to deposit the entire amount of rent or damages for use and occupation which is admitted by him to be due. 6. Under R. 5 the defendant is required to deposit the entire amount of rent or damages for use and occupation which is admitted by him to be due. If the whole or a part of the amount claimed by the plaintiff is admitted by the defendant in his written statement or during the examination under Order X, the law requires that he shall deposit the amount admitted to be due and thereafter throughout the contingence of the suit continue to deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him. If, however, the defendant does not admit that any amount is due to the plaintiff as rent or damages for use and occupation, he need not make any deposit. At this stage the court is not required to decide the question, whether any amount is really due and whether the lease has been validly terminated. The court cannot under this rule order or compel the defendant to deposit the amount claimed by the plaintiff and on the failure of the defendant to make the deposit as claimed by the plaintiff refuse to entertain any defence or strike off his defence. It is only when the defendant commits default in depositing the amount admitted by him to be due or in continuing to deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him that the court would be competent to refuse to entertain any defence or to strike off his defence.......... 8. In Brij Gopal v. Ratan Chand, (1980 All L J 690) another Division Bench (Yashodanandan and H. N. Seth, JJ) inter alia, observed as under in paragraph 6 of the report): "The case before us is governed by Rule 5 as introduced by S. 7 of the U. P. Civil Laws Amendment Act, 1972 and not by R. 5 as substituted by the U. P. Civil Laws Amendment Act 1976. The rule as introduced by the 1972 Act requires that in a suit for ejectment and recovery of arrears of rent filed against the tenant, the tenant has to deposit the entire amount of rent admitted to be due at or before the first hearing of the suit. The rule as introduced by the 1972 Act requires that in a suit for ejectment and recovery of arrears of rent filed against the tenant, the tenant has to deposit the entire amount of rent admitted to be due at or before the first hearing of the suit. He also has to go on regularly depositing throughout the continuance of the suit the amount of monthly rent falling due at the rate admitted by him. If the tenant commits a default either in depositing all the arrears of rent at or before the first hearing of the suit, the court is called upon to strike off his defence........... The rule contemplates making of representation by a tenant who has committed default in not paying the arrears of rent admitted to be due by him at or before the first hearing of the suit takes place. Till the first hearing of the suit takes place the tenant can save himself of the consequences of being in default by his own action by depositing the arrears of rent and no question of making a representation by him arises. The representation by the tenant, for extending the time for depositing the arrears of rent, can be made only after the first hearing of the suit takes place.......... In case the tenant does not, after committing the default, make a representation, the court can make an order striking off his defence immediately after commission of such default. The fact, however, remains that there will always be a hiatus between the default committed by the tenant and the making of an order under Order 15 R. 5 C. P. C. striking off the defence." 9. In Surendra Nath Dubey v. Smt. Shakuntala Devi ( AIR 1980 All. 136 ) a Division Bench (Satish Chandra, C. J. and H. N. Seth, J) dealing with Rule 5 as it stood upon its introduction by U. P. Act 37 of 1972 observed (in paragraph 9 of the report) as under:- "A perusal of the written statement filed by the defendant in this case shows that his case was............ that all his liability to pay rent or damages for use and occupation of the premises in question, up to the period ending Aug. that all his liability to pay rent or damages for use and occupation of the premises in question, up to the period ending Aug. 1976 stood discharged before 16th Sept., 1976 and that no rent or amount for use and occupation of the premises was due against him on the date when the first hearing in the suit took place. At this stage we are not concerned with the question as to whether the defendant was legally entitled to adjust against the rent payable by him the amount which he claims to have spent in getting the electricity connection restored with the permission of the prescribed Authority ............................ As the defendant did not admit that any rent or other amount for use and occupation of the premises was due, no question of his depositing any further amount or compensation for use and occupation of the premises on that account, at the first hearing or before 16th of Sept., 1976 arose. The defence of the defendant, therefore, could not be struck off under O. XV R. 5 of the C. P. C. on the ground that the defendant did not deposit in court the amount towards rent or compensation for use and occupation of the premises in dispute which was admittedly due from him at the first hearing or before 16th of Sept. 1976, (the date on which the first hearing took place). As the defendant in this case did not admit that any amount by way of rent or compensation for use and occupation of the premises was due from him at the time when the first hearing took place on 16th of Sept. 1976, no question of his making a representation seeking further time to make such deposit, arose." 10. It is clear that the view which has commended itself to this court is that in cases, like the present governed by R. 5 of O. XV C. P. C. as originally introduced by U. P. Act 37 of 1972, the defence of a defendant could only be struck off in case he had failed to deposit by the first hearing of the suit the amount of rent or compensation admitted by him to be due and upon his failure to deposit, throughout the continuance of the suit all such amount every month which according to him, had to be deposited by him towards monthly rent or compensation. Further, in case the defendant claimed that the amounts actually paid by him to the landlord or spent on his behalf had left nothing due to the landlord from him at all to be deposited at or before the first hearing of the suit, his defence could not be struck off. 11. In Nathilal Khandelwal v. Dharmendra Kumar (1979 All L J 857), Satish Chandra, C. J. observed (in paragraph 8 of the report) that prior to its amendment in the year 1976 the requirement of R. S of 0. XV was that the rent must be admitted to be due to the defendant. Referring to the decision in Ladly Prasad's case (supra) the learned Chief Justice observed thus (at p. 858):- "This authority dealt with 0. XV R. 5 as it was prior to the amendment in 1976. At that time the requirement was that the resit must be admitted to be due. In that context the court ruled that the defendant did not admit that any amount was due as rent. It was not open to the court to go into the question and decide it ................. 12. In the instant case the stand of the defendant in the written statement was that having regard to the payment made by him to the landlord as also the huge expenditure incurred by him on his behalf, nothing was due from him as arrears. In the statement under o. X C. P. C. as well, he did not admit any amount being due from him. This stand was unchanged even on July 4, 1973 which was fixed as the date of final hearing in the. suit. At best this date for purposes of R. 5 of O. XV, as it then stood, could be treated to be the first hearing of the suit by the trial court which had received the case on transfer and had, after issuance of notice to the defendant's counsel for Mar. 16, 1973, been fixed for final hearing in presence of both the parties. The liability of the defendant, in terms of R. 5 was to have deposited the amount admitted by him to be payable to the plaintiff by this date and thereafter to have continued to pay regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by the defendant. The liability of the defendant, in terms of R. 5 was to have deposited the amount admitted by him to be payable to the plaintiff by this date and thereafter to have continued to pay regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by the defendant. The submission that the defendant should be held to have committed default for purposes of R. 5 of 0. XV C. P. C. as he failed to deposit an amount of Rs. 5/- admitted by him to be the monthly rent between the date of the filing of the suit and July 4,1973 is difficult to accept in view of the phraseology of Rule 5 as it then stood, as interpreted by the Division Bench in Ladly Prasad's case (supra). 13. It has been observed by me in Raghubir Singh v. Krishna Kant Agnihotri, (1979 A11 L J 495) that striking out of the defence of a defendant in a suit is a measure of penalty and should be resorted to only in exceptional circumstances. The effect of the striking out of defence of the defendant clearly is to deny him a fair trial. Prejudice to a defendant is implicit in the striking out of his defence and miscarriage of justice is the inevitable resultant in such case. 14. In the present case, the suit was decreed inter alia, for the defendant's ejectment from the house in question after his defence had been struck off on July 6, 1973. The trial court misdirected itself in law in striking off the defence of the present appellant which it did upon a mistaken impression that the defendant had to deposit up to date rent and damages and cost of the suit. It over-looked that the defendant was required under R. 5 of 0. XV C. P. C. as it then stood, to deposit only that amount which was admitted to him to be due from him and no more. The appellant had not admitted any amount to be due from him to the plaintiff. In these circumstances, his defence was not liable to be struck off and he was entitled to contest the plaintiffs claim on the merits of his defence. He could not do so due to the order passed by the trial court. The appellant had not admitted any amount to be due from him to the plaintiff. In these circumstances, his defence was not liable to be struck off and he was entitled to contest the plaintiffs claim on the merits of his defence. He could not do so due to the order passed by the trial court. The decree against him can, in these circumstances, not be upheld even though it was affirmed by the lower appellate court which also shared with the trial court a mistaken view of law by holding that the defendant was required to deposit the arrears of rent under O. XV R. 5 C. P. C. 15. In conclusion, the appeal succeeds and is allowed. The decree of the court below is set aside and the suit is sent back to the trial court for trial afresh in accordance with law. The parties are directed to appear before it on Sept. 21, 1981. The trial court will ensure that the suit is decided by it within four months of that date. The plaintiff shall, however, be entitled to his costs of this appeal from the defendant-appellant. The record shall be sent back to the court below forthwith.