Sushil Kumar Srivastava v. District Judge — 1991 DIGILAW 1469 (ALL)

JUDGMENT : S.C. VERMA, J. 1. The Petitioner landlord was aggrieved by an order dated 17-11-1989 passed by District Judge, Allahabad, setting aside the order, striking off the defence of the Defendant-opposite party. 2. A suit for arrears of rent and ejectment was filed claiming a sum of Rs. 3250/- as arrears of rent for the period 1-1-1978 to 13-6-1979 and arrears of damages for the use and occupation for the period 14-6-1979 to 31-5-1983 The suit was filed for recovery of time barred rent as also damages for use and occupation. The relevant paras of the plaint claiming this amount are quoted below: Para 3--That the Defendant is a habitual defaulter in payment of rent and so much so that he has not paid rent to the Plaintiff since 1-1-1978 till this day despite repeated requests and demand. Para 6--That now arrears of rent since 1-1-1978 to 13-6-1979 & 50/-per month and damages since 14-6-1979 to 31-5-1983 at the same rate total Rs. 3250-00 along with Rs. 32/- as cost of notice is due to the Defendant which he is liable to pay to the Plaintiff. In the written statement in answer to paragraphs 3 and 6 following reply was given: Para 3. That the contents of para 3 of the plaint are denied. The Plaintiff is not entitled to recover the arrears of rent for more than three years under the law. Para 6. That the contents of para 6 of the plaint is denied. The Plaintiff is entitled to only last three years rent and beyond that period the rent became time barred and not recoverable under law. 3. On the basis of the aforesaid pleadings Learned Counsel for the Petitioner submitted that the Defendant has not denied that the rent was not due but has only denied his liability to pay and this amounts to his admission to pay rent including time barred rent. The provisions of Order 15 Rule 5 of the CPC as applicable in State of U.P. is as follows: 5. The provisions of Order 15 Rule 5 of the CPC as applicable in State of U.P. is as follows: 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 the 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 :--The expression 'first hearing' means the date for filing written statement or for 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, paid to the lessor acknowledged by lessor in writing signed by him) and the amount, if any, deposited in any court u/s 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 4. Thus the question for consideration in the present case is as to what is the amount rent due and what amount of rent which is due has been admitted by the Defendant. 4. Thus the question for consideration in the present case is as to what is the amount rent due and what amount of rent which is due has been admitted by the Defendant. Therefore, it is not only the amount of rent which is due to be seen under the aforesaid provisions but what amount which is due has been admitted to be due by the Defendant It may be that for calculating the amount due even the time barred rent is included but What actually has to be determined is as to what amount had been admitted to be due by the Defendant. Looking to the pleadings the Plaintiff has claimed the amount for the period 1-1-1978 to 31-5-1983 amounting to Rs. 3250/- The Plaintiff has thus claimed time barred rent as also rent and damages for use and occupation of the premises. 5. The Defendant has denied the averments made in paras 3 and 6 of the plaint. However, this denial has been further clarified by stating that the Plaintiff is entitled to recover only last three years rent and beyond that period the rent became time barred and not recoverable under the law. Although this statement made in the written statement narrates the legal proposition but by stating legal position the Defendant only intended to indicate that as he is not liable to pay time barred rent, the same is not admitted to be due and payable. In any case, the averments made in the written statement can not be treated to be admission for payment of time barred rent. In fact, the Defendant has very specifically denied the time barred rent to be due. 6. The submission of the Learned Counsel for the Petitioner about the time barred rent as the amount which may be due can not be denied but in case this is accepted to be paid by the Defendant, there would be no difficulty but if this amount has been denied and not admitted and liable to be paid, it can not be held that the Defendant has not denied the amount to be due and the only denial is with regard to his liability to pay. In the present case the specific averments of the Plaintiff in para 6 that now arrears of rent since 1-1-1978 to 13-6-1979 Rs. In the present case the specific averments of the Plaintiff in para 6 that now arrears of rent since 1-1-1978 to 13-6-1979 Rs. 50/- per month and damage since 14-6-1979 to 31-5-1983 at the same rate total Rs. 3250/- along with Rs. 32/-as costs of notice is due to the Defendant; which he is liable to pa y to the Plaintiff, has been categorically denied by the Defendant. Meaning thereby that neither this amount is due to the Defendant nor he is liable to pay. In my opinion the Learned Counsel for the Petitioner is not correct in staling that the Defendant has only denied his liability to pay time barred rent but has not denied that time barred rent was not due, rather he admitted the same. The proposition is not correct and can not be accepted. Further in my opinion there has to be a specific and clear admission for accepting the time barred rent as due to be paid. 7. If the provision of Section 20(4) of U.P. Act No. 13 of 1972 are compared with the provisions of Order 15 Rule 5 of the CPC it could be seen that a tenant would be entitled to save his ejectment by making deposits u/s 20(4) of the Act, the amount which has been claimed by the landlord to be due from him. Under the provisions of Order 15 Rule 5 of the CPC the tenant is required to deposit the entire amount of rent which he admits to be due. Thus under the provisions of Order 15 Rule 5 of the CPC the amount admitted to be due is very essential as he is required to deposit only the admitted amount. Merely because the amount may be due but that alone is not sufficient. There has also to be an admission of the amount to be due which is required to be deposited. 8. It may be kept in mind that the admission by the Defendant has limitations. It would not be correct and absolve the Defendant from the liability if he completely denies his liability to pay any amount and later it is found that he was liable to pay some amount due to him such as monthly rent. 9. 8. It may be kept in mind that the admission by the Defendant has limitations. It would not be correct and absolve the Defendant from the liability if he completely denies his liability to pay any amount and later it is found that he was liable to pay some amount due to him such as monthly rent. 9. For the aforesaid reasons and considering the averments made in the written statement I am of the opinion that the Petitioner has not admitted time barred rent as the amount due for deposit to be made under Order 15 Rule 5 of the Code of Civil Procedure. 10. The Petitioner has placed reliance in Samwel Haunt v. VII Additional District Judge Kanpur 1986 (1) All. RC 163, for the preposition that time barred rent is an amount which may be due to be paid and in case the same was not deposited the tenant was not entitled to claim benefit of Section 20(4) of U.P. Act No. 13 of 1972. As stated earlier under the provisions of Section 20 Sub-section (4) of the Act to save ejectment tenant has to deposit the entire amount of rent and damages for use and occupation of the building due from him and as claimed by the Plaintiff-landlord. This position would not be applicable in the case of deposit made under Order 15 Rule 5 of the CPC which is the amount admitted to be due by the Defendant only. 11. Learned Counsel for the Petitioner has stated that the trial court has recorded a finding that the rent since 1-1-1978 was due which was admitted by the Defendant to be due and this being a finding of fact can not be upset in exercise of revisional jurisdiction. The argument, in my opinion is misconceived. The present finding JS of jurisdictional fact and the pleading of the parties had to be considered and interpreted as to whether the Defendant has admitted time barred rent as due to be paid or not. The revisional court has not committed any error of law or jurisdiction in holding that from the pleadings of the Defendant it is not established that the Defendant has admitted time barred rent to be due for deposit to be made in accordance with the provisions of Order 15 Rule 5 of the Code of Civil Procedure. 12. The revisional court has not committed any error of law or jurisdiction in holding that from the pleadings of the Defendant it is not established that the Defendant has admitted time barred rent to be due for deposit to be made in accordance with the provisions of Order 15 Rule 5 of the Code of Civil Procedure. 12. For the aforesaid reasons I am inclined to hold that the learned Judge Small Causes Court committed manifest error of law in striking of the defence of the Defendant after holding that the Defendant admitted time barred rent as due to be deposited. The order of the learned District Judge u/s 25 of the Provincial Small Causes Courts Act, setting aside the order dated 12-7-89 striking of the defence of the Defendant does not suffer from any illegality or infirmity. The petition has no merit and is accordingly dismissed. The stay order is discharged. 13. The Judge Small Causes Court is directed to decide SCC Suit No. 291 of 1983 expeditiously.