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1984 DIGILAW 624 (ALL)

Khilari Singh v. District Judge, Muzaffarnagar

1984-08-21

K.P.SINGH

body1984
JUDGMENT E. P. Singh, J. 1. This is a tenant's writ petition arising out of a suit for arrears of rent and ejectment due to default in payment of rent. 2. Shorn of unnecessary details 2-1-1981 was the date mentioned in the summons. On that day an application was moved on behalf of the defendant-tenant petitioner for adjournment of the case on the ground that his counsel could not prepare the case. The case was adjourned to 20-2-1981. It appears that on 13-1-1981 the defendant-petitioner applied for deposit of the entire amount of rent due with costs of the suit etc. and the same was deposited by the permission of the court. Thereafter the defendant-petitioner for dismissal of the suit for ejectment. The plaintiffs-contesting opposite parties had contested the claim of the defendant-petitioner on the allegation that the deposit of rent was not made on the first date of hearing which was 2-1-1981 in the circumstances of the present case, hence the application of the defendant-petitioner should be dismissed. 3. The Civil Judge through his judgment dated 21-10-81 accepted the claim of the defendant-petitioner and refuted the contentions raised on behalf of the plaintiff-opposite parties to the effect that the defence of the defendant-petitioner should be struck off (see Annexure 1' attached with writ petition). 4. Aggrieved by the judgment of the Trial court the plaintiffs- opposite parties preferred a revision petition which has been allowed by the revisional court through its judgment dated 29-5-1982 contained in Annexure 3' attached with the writ petition. The revisional court has observed in the impugned judgment that the deposit by the defendant-petitioner was not made on the first day of hearing in the circumstances of the present case, hence the Trial court acted illegally in dismissing the plaintiffs' suit for ejectment. It has also observed that in the circumstances of the present case the Trial court wrongly condoned the laches on the part of the defendant-petitioner in making deposits. The relevant extract in para. 8 of the impugned judgment reads as below :- ".........In the circumstances there was no reason for not making the deposit by 7th May, 1981. It has also observed that in the circumstances of the present case the Trial court wrongly condoned the laches on the part of the defendant-petitioner in making deposits. The relevant extract in para. 8 of the impugned judgment reads as below :- ".........In the circumstances there was no reason for not making the deposit by 7th May, 1981. The learned court below had no jurisdiction to extend the time for making the payment and that way, his order for condoning the delay in making deposit- during the strike of advocates as sufficient cause is not in accordance with law and is liable to be set a side." Aggrieved by the judgment of the revisional court the defendant-petitioner has approached this court under Article 226 of the Constitution. 5. The learned counsel for the petitioner has emphasised before me that the Trial court placing reliance upon a ruling of this Court correctly gave judgment for the defendent- petitioner whereas the revisional court has interfered with the conclusions of the Trial court without adverting to that case. 6. The second contention raised on behalf of the petitioner is that the revisional court has patently erred in suggesting that the Trial court acted illegally in condoning the delay on the part of the defendant-petitioner and thereby suggesting the defence being struck off, hence the impugned judgment deserves to be quashed. It has also been suggested that the order of remand passed by the revisional court works great hardship upon the petitioner, hence the same should be quashed. The learned counsel for the contesting opposite parties has refuted the contentions raised on behalf of the defendant-petitioner and has supported impuged judgment. According to him the view taken by the revisional court cannot be termed either patently erroneous or suffering from perversity or illegality warranting interference by this Court under Article 226 of the Constitution. 7. The learned counsel for both the parties have cited a large number of rulings in support of their contentions. 8. I have examined the contentions raised on behalf of the parties. 7. The learned counsel for both the parties have cited a large number of rulings in support of their contentions. 8. I have examined the contentions raised on behalf of the parties. Recently in Sia Ram v. District Judge, Kheri, 1984 ARC 410= 1984 AWC 169 a Full Bench of this Court vide para 15 has observed as below : - "......Normally, the absence/presence of a Presiding Officer on a particular date of hearing should not act as an impediment in the way of the defendant filing his tender for deposit under Section 20 (4). The Presiding Officer of the link Court can pass suitable orders on that application. Indeed, it is well-settled' that if tender has been submitted within time but the court itself does not accept the tender immediately, any deposit made on the tender when accepted should relate back to the date when the tender was submitted vide Wadhwa's case (supra) para. 4 of the report. Thus in our opinion, even the exception carved out in Smt. Vimala Tripathi's case should not hold good. The only exception would be cases where the court is closed, either formally or for all practical purposes though not formally, and even those cases the deposit should be made on the very next date on which the courts open or are able to function." In para. 18 of the aforesaid ruling it has been observed as below ;- "It may also be mentioned in this connection that the general principles underlying Order XV, Rule 5, Civil Procedure Code, and to Section 20 (4) of Act 13 of 1972, are different, the former provision is of a penal nature, and the power of the Court to strike off the defence is merely discretionary and the court is not bound to do so. On the other hand, the provisions of section 20 (4) are by way of providing locus paenitentiae for a tenant, who had been a defaulter and has, thus, forfeited the protection of the rent control law. It gives him a further opportunity to redeem his position, which, has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. It gives him a further opportunity to redeem his position, which, has the effect of depriving the landlord of the right that has accrued to him as a result of the earlier default of the tenant. The Legislature cannot, therefore, be said to have acted unreasonably in requiring the tenant to comply with the provisions of Section 20 (4) more strictly than with the provisions of Order XV, Rule 5 Civil Procedure Code This distinction has been noted in various decisions such as Rafiq Ahmad v. Illrd Additional District Judge (supra), Bharagu Dutta Singh v. Shyam Kishore, 1980 LLJ 62 and several other decisions." To my mind the revisional court has not patently erred in setting aside the judgment of the Trial court in the circumstances of the present case. Rather the reasons given by the revisional court are in consonance with the observations made in paragraph 15 of the above quoted Full Bench ruling. Therefore, even it the revisional court did not refer to the ruling relied upon by the Trial court it has taken correct view in law and in consonance with the observations of the Full Bench ruling quoted above I think that the defendant-petitioner cannot succeed in challenging the judgment of the revisional court on the ground that its view was not in consonance with the ruling of this Court. The ruling relied upon by the Trial court and reported In 1981 (7) ALR short Note 75 cannot be a good law in view of the Full Bench Ruling mentioned supra. 9. As regards the second contention raised on behalf of the defendant-petitioner it is sufficient to mention that the revisional court is not quite correct in observing that the Trial court had no jurisdiction to extend the time for the payment. The correct position in law is that the defence will not be struck off merely on the ground that there was no representation explaining the delay or there was irregularity in making deposits. If there is an explanation or material on the record explaining the delay, the delay should be condoned. In the present case I am not inclined to express my own views at this stage. If there is an explanation or material on the record explaining the delay, the delay should be condoned. In the present case I am not inclined to express my own views at this stage. Since the case is remanded back I permit the Trial court to re-examine the point in view of the law laid down in Bimal Chand Jain v. Gopal Agarwal, 1983 ARC 203 and other cases on the point indicated In 1984 ALJ 501 Dinesh Chand Gupta v. Pratap Bhargava. 10. Lastly I do not agree with the contention of the learned counsel for the petitioner that the order of remand passed in the circumstances of the present case works a great hardship upon the petitioner. In my opinion the order of remand is fully justified and the defendant-petitioner gets an opportunity to put forward his claim strictly in accordance with law. In the result the writ petition fails and is accordingly dismissed, but I make no order as to costs. Petition dismissed.