Gopal v. Pyarelal — 1984 DIGILAW 999 (ALL)

ORDER N.N. Sharma, J. - This defendant's revision is directed against order dated 8-2-1984 recorded by Sri O. N. Asthana, learned 1st Additional District Judge, Varanasi in original suit No. 9 of 1982 rejecting the defence of defendant revisionist. 2. It appears that the plaintiffs-respondents filed the suit for recovery of arrears of rent and ejectment of revisionist on the ground that he had defaulted in payment of arrears of rent. The suit was filed on 12-4-1982. 3. Written statement was filed by the revisionist on 24-11-1982 alleging the payment of the entire rent claimed in the suit. Other pleas were also raised which are not material to be detailed for the disposal of this revision. 4. The rent was alleged at the rate of Rs. 130/- per month which was not in dispute. 5. Plaintiffs prayed on 5-1-1984 to strike off the defence under O. XV R. 5 of Code of Civil Procedure. Prayer was opposed by defendant on the ground that arrears of rent had been remitted by him through money orders detailed in the objection which were refused by the landlord. 6. The rent from 1-3-1981 up to 31-12-1983 and even for the subsequent period were deposited by the tenant defendant in the court of City Munsif in Misc. Case No. 373 of 1981, Gopal v. Pyare Lal under S. 30 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). Total payment was of Rs. 4420/-up to 31-12-1983. 7. Learned court below found that the payments put forward by tenant were correct. Since these deposits were not made in his court but in a different court, so such deposits would be of no avail, to the defendant. In this connection, reliance was placed upon Mrs. S. Abel v. District Judge, Allahabad reported in 1980 All Rent Cas 261 : ( AIR 1980 All 302 ). In this view of the matter, the court refused to recognise the aforesaid deposits to satisfy requirements of law. Aggrieved by this decision, the present revision has been filed in this Court. 8. I have heard learned counsel for the parties and perused the relevant papers. 9. On behalf of revisionist, it was pointed out that the authority relied upon by learned trial Judge was not in conformity with Abdul Hamid v. District Judge, Bulandshahr reported in 1984 All LJ 347. 10. 8. I have heard learned counsel for the parties and perused the relevant papers. 9. On behalf of revisionist, it was pointed out that the authority relied upon by learned trial Judge was not in conformity with Abdul Hamid v. District Judge, Bulandshahr reported in 1984 All LJ 347. 10. It appears that that was a suit for' recovery of arrears of rent and eviction after terminating the tenancy on 12th July, 1979. In 1978, opposite parties had filed a suit for arrears and eviction in which tenant claimed benefit of sub-sec. (4) of S. 20, U. P. Act XIII of 1972. That benefit was extended to him as the entire deposit was made on the first date of hearing. Opposite parties filed a review petition. Petitioner offered the rent to opposite parties but they refused to accept the same and so the petitioner was obliged to deposit the same in court as he was doing earlier. The review petition was dismissed on 11th July. On the next day, opposite party again sent another notice terminating the tenancy and demanding the rent from Nov. 1978. He filed a suit for eviction in 1979. Contention of landlord was that the tenant had deposited the rent in court without the intimation to landlord and, therefore, it was not in accordance with law. This contention failed in the trial court. However, against the dismissal of the suit by the trial court, a revision was filed. The revising authority found that rent from April to June, 1979 was deposited by the petitioner but subsequent rent pending the revision was not deposited. It was further held that there was no order of the court directing the petitioner to make monthly deposits. So the deposits made by petitioner did not ensure to benefit of opposite party. It was held by this Court : "...........It is. too technical a construction and too narrow meaning given to the 'default' of arrears of rent. For the purpose of suit for eviction default cannot be manoeuvred. Non- payment of rent should be deliberate, wilful,. In any case, it cannot be permitted to be framed for purposes of obtaining a decree from Court. Such design, if permitted shall encourage dishonest and unscrupulous litigation and frustrate entire objective of Rent Control legislation. Rent may either be paid to landlord or it may be deemed to have been paid. Non- payment of rent should be deliberate, wilful,. In any case, it cannot be permitted to be framed for purposes of obtaining a decree from Court. Such design, if permitted shall encourage dishonest and unscrupulous litigation and frustrate entire objective of Rent Control legislation. Rent may either be paid to landlord or it may be deemed to have been paid. One of such situations is contemplated in S. 30 of the Act. What is basic is payment. In a case where the suit for eviction is pending and the petitioner, on refusal by landlord, deposits it and the same is accepted by Court there is no reason to hold that such deposit shall not ensure to benefit of landlord or the tenant shall not be deemed to have discharged his obligation and he could be held to be defaulter within meaning of S. 20 of the Act". 11. The same Hon'ble Judge has taken a similar view in Prem Narain Pathak v. 1st Addl. District Judge, Shahjahanpur and Pooran Chand Gupta v. 2nd Addl. District Judge, Agra reported in 1983 All Rent Case 729 : (1984 All LJ 361) : 1983 All Rent Cas 817: (1984 All LJ 382) respectively. 12. Sri Sankatha Rai, learned Advocate for respondents pointed that these decisions did not refer to the earlier decision which was in point as it interpreted Explanation III appended to O. XV R. 5 of Code of Civil Procedure, He further pointed out that unless" the earlier decision which was not in conformity with the view taken by the learned Judge was cited in these cases the subsequent decisions could not be treated as a binding precedent as reported in Maya Ram v. Smt. Sampatia, 1964, All WR 527. 13. In order to appreciate the controversy, it is necessary to refer to O. XV R. 5 of Code of Civil Procedure which is worded as below : "5. Striking off defence for 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 . Striking off defence for 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 3(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- sec. (1), as the case may be.". 14. Thus, the contention was that although the arrears of rent might be deposited under S. 30 of Act XIII of 1972 yet the current rent was to be deposited in the court where rite suit was pending according to the view taken in Mrs. Abel v. District Judge, Allahabad, 1980 All Rent Cas 261: ( AIR 1980 All 302 ) (supra). 15. I have carefully considered over the matter. The facts detailed above show that the entire rent up-to-date had been deposited by the tenant under S. 30 of the aforesaid Act. This fact was not controverted on behalf of landlord. In Bimal Chand Jain v. Gopal Agarwal, reported in 1981 All Rent Case, 463 at P. 465 : (1981 All LJ 908 at P. 909) (SC) it was observed that even though no representation under sub-rule (2) was made by tenant, the court was not obliged to strike off the defence. 16. In that case, the respondent as lessor filed a suit against the appellant as lessee for his ejectment and for recovery of arrears of rent. The claim was resisted by plaintiff- appellant (defendant-appellant?). 16. In that case, the respondent as lessor filed a suit against the appellant as lessee for his ejectment and for recovery of arrears of rent. The claim was resisted by plaintiff- appellant (defendant-appellant?). Pending the suit, respondent applied for striking off the defence under O. XV R. 5 of Code of Civil Procedure as the current rent was not being deposited regularly. That application was opposed. The trial court found that the current rent has not been deposited as was obligatory under Explanation III aforesaid. So the written statement was struck off. The revision was dismissed by High Court. It was observed at page 466 i of All Rent Cas) : (at p. 910 of All LJ) : ".......... 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 defence? We must remember that an order under sub-r. (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 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-R. (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 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-R. (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 (1981 All U 82) (supra). .We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of R. 5 of O. XV". 17. This authority relates to deposit of current rent and is directly in point. It is binding on me. 18. In the instant case, in his objection, revisionist tenant alleged that he made a representation against the striking off his defence. Learned trial Judge did not observe as to why he found the deposit as mala fide and not bona fide. Even in the absence of representation by the tenant it was open to the court to, have accepted the written statement. Justice has not been advanced in the case by shutting out the defence in the manner when the tenant had been such a good pay master as set up by him in his written statement. Under such circumstances, I find that such exercise of discretion by the court operates harshly on the tenant. 19. In the result, the revision is allowed. The impugned order is set aside and the case is remanded to the court below to accept the written statement of revisionist and to dispose of the case afresh in accordance with law. The ad interim stay dated 13-2-1984 is vacated herewith. Under the circumstances of the case, there is no order as to costs.