Rama Kant Gupta v. Rameshwar Das — 1992 DIGILAW 810 (ALL)

JUDGMENT : R.R.K. Trivedi, J. This second appeal has been preferred against the judgment and decree dated 5-8-1783 passed by learned Special Judge Additional District Judge, Bareilly, in Civil Appeal No. 45 of 1982, by which the judgment and decree passed in Original Suit No. 400 of 1979, for ejectment of the Defendant-Appellant and for realisation of the arrears of rent and mesne profits with interest has been confirmed. 2. The facts giving rise to this second appeal are that Plaintiff Rameshwar Das leased out a Khandsar (a khandasari unit for manufacturing of khandsar sugar from sugarcane along with necessary machinery and equipments and some buildings also on 7-12-1959 under a registered rent deed, on payment of Rs. 3000/- as yearly rent. Though the rent deed was executed for a period of ten months 17 days, the tenancy thereafter continued on the basis of holding over on the same terms and conditions as mentioned in the rent deed. Plaintiff respondent by a notice dated 25-7-1978 terminated the tenancy and required the Defendant Appellant to vacate the premises in dispute and deliver vacant possession on expiry of six months from the date of service of notice It was also stated that on failure, the Defendant Appellant will be liable to pay mesne profits at the rate of Rs. 20/- per day from the date of the termination of the tenancy. This notice was served on the Defendant Appellant on 27-7-1978. He replied the notice on 21-8-1978 and refuted the contents of the notice. As in response to the notice, the premises in dispute were not vacated, Rameshwar Das filed a suit on 19-11-1979 for ejectment and for realisation of arrears of rent and compensation/mesne profits at the rate of Rs. 20 per day. In para 7 of the plaint, be claimed Rs. 735/- as rent for the period from 31-10-1978 to 26-1-1979 and further a sum of Rs. 5880/- as mesne profits from 27-1-1979 to the date of the filing of the suit, i.e. 19-11-1979 at the rate of Rs. 20/- per day. Thus, the total amount claimed was Rs. 6615/-. 3. For purposes of this appeal, in my opinion, the other facts mentioned in the plaint are not necessary to be reproduced which have already been set out in detail in the judgments of the two courts below. 4. 20/- per day. Thus, the total amount claimed was Rs. 6615/-. 3. For purposes of this appeal, in my opinion, the other facts mentioned in the plaint are not necessary to be reproduced which have already been set out in detail in the judgments of the two courts below. 4. Defendant Appellant, on receipt of the notice, filed his written statement and contested the suit on several grounds though he admitted the relationship of landlord and tenant. He also admitted that the tenancy commenced from Diwali every year and also admitted the execution of the rent deed dated 7-12-1959. In para 7 of the written statement, he stated that para 7 of the plaint is untrue, hence not admitted. In para 13 he stated that tenancy is monthly and it should be understood as such and it has been further stated that the Plaintiff's case that the tenancy is yearly is untrue. In para 18 the Defendant Appellant stated that the entire premises in dispute is not khandsar Khandsar is only that part where the machines are fitted and the remaining part is not khandsar. He also challenged that the suit is not cognizable by the Civil Court and it ought to have been filed before the Judge Small Causes. During the pendency of the suit, Plaintiff respondent filed an application (paper No. 38C) invoking provisions of Order XV Rule 5 CPC and prayed to strike off the defence of the Defendant Appellant as he has failed to deposit the amount contemplated under the aforesaid provision The Defendant Appellant filed his objection After hearing both the sides, the trial court by order dated 25-5-1981 struck off the defence of the Defendant Appellant against which the Defendant Appellant filed Civil Revision No. 55 of 1981 which was dismissed on 16-11-1981. Thereafter suit proceeded and on 1-2-1982, Trial Court decreed the suit with costs for ejectment and for realisation of Rs. 6615/- and for future damages at the rate of Rs. 20/- per day. This decree was further amended by order dated 19-2-1982 and on the amount of Rs. 6615/- interest at the rate of 12% per annum till the date of actual payment was also awarded. Aggrieved by this decree, Defendant Appellant filed Civil Appeal No. 45 of 1982 which was dismissed by judgment and decree dated 5-8-1983 and the decree passed by the learned trial court was confirmed. 6615/- interest at the rate of 12% per annum till the date of actual payment was also awarded. Aggrieved by this decree, Defendant Appellant filed Civil Appeal No. 45 of 1982 which was dismissed by judgment and decree dated 5-8-1983 and the decree passed by the learned trial court was confirmed. Thus, this second appeal has been filed. 5. I have heard at length Shri Bharat Ji Agarwal, learned Counsel for Appellant and Shri K.M. Dayal. learned Counsel appearing for the respondent. Learned Counsel for the Appellant submitted that as the rent payable in the present case was yearly, provisions of Order XV Rule 5 CPC were not applicable and the defense of the Defendant Appellant was illegally struck off which has caused a manifest failure of justice and serious prejudice to the Appellant and the judgment and decree of both the courts below are vitiated on this ground alone. Learned Counsel for Appellant has placed reliance on certain cases decided by this Court which shall be referred to at the appropriate stage. In support of his submission, learned Counsel has further contended that as clear from the notice, no rent was due at the time of termination of tenancy, hence Order XV Rule 5 CPC will not apply. In this connection para 4 of the plaint has been referred. It has been further submitted that as the rent was deposited u/s 30 of U.P. Act No. 13 of 1972, there was no default on the part of the Appellant and the amount so deposited should have been taken into consideration while applying the provisions of Order XV Rule 5 Code of Civil Procedure. 6. Learned Counsel for Appellant has further submitted that in the present case as the suit for ejectment and realisation of rent and damages has been filed after termination of tenancy, the Civil Court had no jurisdiction and cognizance of such suit could only be taken by Judge Small Causes. 7. Learned Counsel for respondent, on the other hand, submitted that the period of tenancy for which the parties had initially agreed under the Rent deed dated 7-12-1959 stood expired and tenancy continued by way of holding over. Thus the tenancy became monthly. 7. Learned Counsel for respondent, on the other hand, submitted that the period of tenancy for which the parties had initially agreed under the Rent deed dated 7-12-1959 stood expired and tenancy continued by way of holding over. Thus the tenancy became monthly. Para 13 of the written statement has been referred to in this connection and it has been said that as the tenancy was monthly, provisions of Order XV Rule 5 CPC have been rightly applied. It has been further submitted that in para 7 of the plaint amount due from the Defendant was clearly mentioned which was not disputed in the written statement except by a general and evasive denial. Learned Counsel has referred to in this connection paras 3, 4 and 5 of Order VIII CPC and has submitted that the contents of para 7 of the plaint should be deemed to have been admitted. Learned Counsel for the respondent has further submitted that in the present case as the tenancy was in respect of the manufacturing business and a' factory, it was excluded under Clauses (c) and (d) of Section 2(1) of U.P. Act No. 13 of 1972 and any deposit made u/s 30 could be of no avail. It has also been pointed out that the alleged amount of Rs. 3000/- deposited by the Defendant Appellant on 12-10-1979 was withdrawn by him on 1-9-1982 and for this reason no reliance can be placed. Learned Counsel placed before me a photo copy of the voucher which shows that the amount of Rs. 3000/- was withdrawn. In this connection it has been further submitted that the order dated 20-5-1981 striking off the defence by the trial court was challenged in revision which shall operate as res judicata and it is no more open to the Defendant Appellant to challenge the same. It is submitted that the orders passed at different stages during the progress of the suit operate as res judicata. Learned Counsel for respondent in this connection also submitted that even in case of yearly tenancy, the Defendant Appellant cannot be exonerate, of the rigours of the provisions contained in Order XV Rule 5 Code of Civil Procedure. He was liable to pay on the first date of hearing the amount already accrued on the date of the filing of the suit and further though the amount of rent may be payable yearly. He was liable to pay on the first date of hearing the amount already accrued on the date of the filing of the suit and further though the amount of rent may be payable yearly. the monthly liability could be worked out and he ought to have continued to deposit the amount due every month. After termination of tenancy he was liable to pay mesne profits on daily basis and there was no difficulty in assessing the monthly dues. 8. Lastly, it has been submitted that suit was rightly filed on the original side as Article 4 of the 2nd Schedule as amended and 'applicable in the State of Uttar Pradesh was not applicable. The premises in dispute which were subject matter of the tenancy could not be termed as a building and the Court of Small Causes could not have jurisdiction to try the suit. It has been further submitted that jurisdiction of the Court of Small Causes is only preferential and not exclusive and the decrees passed by the two courts below cannot be upset at the stage of second appeal. The decree of the civil court cannot be a nullity. 9. Learned Counsel for the Defendant Appellant in rejoinder has submitted that in case rent is payable annually, Order XV Rule 5 will not apply at all. With reference to paras 3, 4 and 9 of the plaint it has been submitted that the tenancy was yearly even after expiry of the initial term and it continued by holding over on the same terms and conditions. It has further been submitted that the subject matter of tenancy was not a factory and Clauses (c) and (d) of Section 2(1) of U.P. Act No. 13 of 1972 could not apply. 10. I have considered the submissions made by the learned Counsel for the parties. From the rival submissions made by the learned Counsel only two questions arise for consideration in this appeal which are as under-- Firstly, whether the civil court had no jurisdiction to try the suit and the judgments and decrees impugned in the appeal are vitiated as the suit should have been heard by the court of Judge Small Causes? From the rival submissions made by the learned Counsel only two questions arise for consideration in this appeal which are as under-- Firstly, whether the civil court had no jurisdiction to try the suit and the judgments and decrees impugned in the appeal are vitiated as the suit should have been heard by the court of Judge Small Causes? Secondly, whether the defence of the Defendant Appellant was illegally struck off as the provisions of Order XV Rule 5 of the CPC were not applicable in the facts and circumstances of the case as the rent payable was yearly? 11. Taking the first question first, it would be useful to consider as to whether the jurisdiction of the Court of Small Causes is only preferential or exclusive. Learned Counsel for respondent submitted that the jurisdiction of the court of Small Causes is only preferential and not exclusive and the decree passed in the suit cannot be a nullity The learned Counsel has placed reliance on a Full Bench case of Manzurul Haq v. Hakim Mohsin Ali 1970 AWR 419, and the case of Balbir Singh v. Smt Kalawati AIR 1976 All. 434 and Lala Hari Shyam v. Mangal Prasad AIR 1983 All. 275 (DB) From a perusal of the aforesaid authorities it is clear that the courts of small causes are courts of preferential and not exclusive jurisdiction. The necessary corollary for the aforesaid view is that the regular civil courts which are courts of plenary jurisdiction u/s 9 of the CPC have authority to entertain and try all suits of civil nature. The civil courts do not totally lose jurisdiction. Where courts of small causes are not constituted or cannot take cognizance for want of pecuniary jurisdiction, the suits are tried by civil courts. Thus the decree passed by the civil court will not be a nullity as held by the Full Bench and Division Bench of this Court. However, as the question of Jurisdiction has been raised and pressed in this appeal, I prefer to answer it. Thus the decree passed by the civil court will not be a nullity as held by the Full Bench and Division Bench of this Court. However, as the question of Jurisdiction has been raised and pressed in this appeal, I prefer to answer it. Section 15 provides that the Courts of Small causes shall not take cognizance of suits specified in the Second Schedule as suits except from the cognizance of the court of small causes Section 15(2) and Section 16 provides that subject to exceptions specified and save as specially provided by this Act, a suit cognizable by a court of small causes shall not be tried by any other court having jurisdiction within the local limits of the court of small causes by which the suit is triable. Article 4 of Second Schedule provides an exception regarding suits for possession of immovable property or for the recovery of any interest in property from the courts of small causes. However, by U.P. Act No. 37 of 1972, Article 4 was substituted by a new Article carving out an exception to the aforesaid general exception in respect of the suits for the eviction of a lessee from a building after the determination of the lease and for recovery from him all compensation for use and occupation of that building after such determination of the lease. Article 4 as applicable in the State of U.P. is being reproduced below: (4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit by a lesser for the eviction of a lessee from a building after the determination of lease, and for the recovery from him of compensation for the use and occupation of that building after determination of lease. Explanation--For the purpose of this Article the expression, building means a residential or non-residential roofed structure, and includes any land (including any garden), garages and outhouses, appurtenant to such building and also includes any fittings, affixed to the building for the more beneficial enjoyment thereof. 12. Explanation--For the purpose of this Article the expression, building means a residential or non-residential roofed structure, and includes any land (including any garden), garages and outhouses, appurtenant to such building and also includes any fittings, affixed to the building for the more beneficial enjoyment thereof. 12. A perusal of aforesaid Article 4 makes it clear that in case the suit by landlord for the eviction of lessee pertains to a building after the determination of the lease, it shall be cognizable by the court of small causes The expression 'building' has been defined in the explanation to the aforesaid Article under which building means a residential or non residential roofed structure and includes any land including any garden, garages and out houses appurtenant to (such building and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment This Court in case of Nirajan Prasad v. Rajendra Prakash, 1979 (U.P.) RCC 289, has held that Khandsar including electric motors and machinery cannot be said to be building and Article 4 of the Second Schedule will not apply to the same. Learned Counsel for the Appellant, however, submitted that the suit was not for the Khandsar alone but the Plaintiff respondent sought ejectment also from the four rooms, one Kothari, one tin shed etc. which are building as contemplated under Article 4 and Explanation attached to it. It is true that the subject matter of the suit filed by the Plaintiff respondent was Khandsar along with machinery, motors, tools and the boundaries of the Khandsar also included some constructions which could be termed building From the Explanation it is clear that the building could be residential or non residential roofed structure and it may include any land including any garden, garages and out houses appurtenant to such building and also could include any fittings and fixtures affixed to the building for beneficial enjoyment but from the Explanation it is clear that the building itself should be subject matter of lease. The Explanation will not cover those cases where a Khandsar or a factory or industry is leased out which also inside the premises has some buildings. The Explanation will not cover those cases where a Khandsar or a factory or industry is leased out which also inside the premises has some buildings. I have thoroughly gone through the registered rent deed dated 7-12-1959 from which it is clear that the lease was in respect of the Khandsar and certain constructions existed inside that which were also specified in the rent deed but the dominant subject matter of the lease was Khandsar and not the building. For this reason, in my opinion, the submission of the learned Counsel for the Appellant are not correct The view taken by this Court in the case of Niranjan Prasad is fully applicable. 13. Learned Counsel for the Appellant, however, placed reliance in Natraj Studios (P) Ltd. v. Navrang Studios AIR 1981 SC 537 . Before Hon'ble Supreme Court the interpretation of Section 5(8) Bombay Rent, Hotel and Lodging Houses Rates Control Act. 1947 was in question which, defines 'premises'. I have perused Sub-section (8) of Section 5 of the aforesaid Act and in my opinion the word (premises' defined therein cannot be said to be para materia with the word 'building' used in Article 4 of the Second Schedule and defined in Explanation attached thereto. The case relied on by the learned Counsel for the Appellant is clearly distinguishable from the facts and circumstances of the present case and does not help the Appellant's case in any manner. Thus from the aforesaid discussion it is clear that the suit was rightly filed in civil Court and the judgment and decree passed do not suffer from any defect or jurisdiction. 14. The second important question involved in this appeal regarding the applicability of the provisions of Order XV Rule 5 CPC for striking off the defence of Defendant Appellant. The learned Counsel for the Appellant has placed reliance on Suresh Chandra v. IIIrd ADJ. Nainital 1983 (1) ARC 321, Mohd. Yunus v. Hemantpati Singh 1982 ALJ 105, and Thakur Gopalji v. Dina Nath 1982 ALJ 469, Placing reliance on the aforesaid cases learned Counsel has submitted that where rent payable is yearly, Order XV Rule 5 CPC will not apply at all However, in my opinion, the submission of the learned Counsel for the Appellant is not correct. This Court in case; Mohd. This Court in case; Mohd. Yunus v. Hemant Pati Singh 1982 ALJ 105, while interpreting Order XV Rule 5 CPC clearly held that the words whether or not he admits any amount to be due refer as to the initial deposit that has to be made by the Defendant in order to save his defence from being struck off. So far as the subsequent deposits are concerned, they are governed by Explanation 3. This view has been followed by the subsequent cases relied on by the learned Counsel Thus if the rent payable under the contract of tenancy was yearly, there could not be monthly payment and the subsequent deposits could not be made However, so far as the initial amount claimed in the plaint is concerned, it has to be deposited by the Defendant to save his defence. In respect of this amount he could not take shelter of the fact that the amount of rent was payable yearly. In the present case Plaintiff in para 7 clearly claimed amount of rent of Rs. 735/- for the period 31-10-1978 to 26-1-1979 at the rate of agreed rate of rent. For the further period and up to the date of the filing of the suit he claimed mesne profits to the extent of Rs. 5880/-at the rate of Rs. 20/- per day. Thus the amount claimed in para. 7 was Rs. 6615/-. 15. However, in this connection, the next question to be considered is whether this amount was admitted by the Defendant. As noticed above, in reply to para. 7 of the plaint. Defendant Appellant made only a general and evasive denial. He did not dispute the liability to pay rent of Rs. 735/- for the period 31-10-1978 to 26-1-1979 This amount was calculated for the period of tenancy was subsisting So far as the mesne profits of Rs. 5880/-are concerned, he disputed the rate of Rs. 20/- per day as excessive but did not specify any other amount which could be reasonable according to him Even if for this period also the mesne profits are calculated at the rate of agreed rent i.e. Rs. 3000/- per year, the Defendant Appellant was liable to pay an amount of Rs. 2433.26 which normally he was expected to deposit and pay. However, he preferred to have a general and evasive denial of the liability. 3000/- per year, the Defendant Appellant was liable to pay an amount of Rs. 2433.26 which normally he was expected to deposit and pay. However, he preferred to have a general and evasive denial of the liability. In my opinion, such a general and evasive denial could be legitimately deemed admission in view of the provisions contained in Rules 3, 4 and 5 of Order VIII Code of Civil Procedure. The object of order XV Rule 5 CPC is to secure payment of rent to the landlord during the pendency of the suit which takes long time in reaching to final decision. The Appellant could not be permitted to defeat this object under the plea that the rent was payable annually. The two amounts claimed in the plaint, one relating up to the date of the suit and another after the date of the suit are distinct and separate and the provisions of Order XV Rule 5 are applicable in case of both. If the amount for the subsequent period after filing the suit could not be deposited it can-not be said that the provisions were not applicable in respect of the amount which had accrued up to the date of the suit. In my opinion, the Defendant Appellant can blame himself for this misery as he failed to save his defence from the rigours of Order XV Rule 5 Code of Civil Procedure. 16. The learned Counsel for the Appellant has further submitted that the amount was deposited u/s 30 of U.P. Act No. 13 of 1972. Both the courts below have held that provisions of Act No. 13 of 1972 are not applicable to the premises in dispute. Elaborate reasons have been recorded for the same. Respondent's counsel also placed reliance on an unreported judgment of Division Bench of this Court which has specifically held that the provisions of Act No. 13 of 1972 will not be applicable to such property known as Khandsar which was intended to be used for industrial and manufacturing purposes. The provisions of Section 2(1) (c) and (d) both shall apply and the property is exempted from the operation of the Act The Division Bench judgment is in respect of Second appeal No. 67 of 1974 Har Govind and Ors. v. Ram Bharose Lal Tandon decided on 17-2-1978. 17. The provisions of Section 2(1) (c) and (d) both shall apply and the property is exempted from the operation of the Act The Division Bench judgment is in respect of Second appeal No. 67 of 1974 Har Govind and Ors. v. Ram Bharose Lal Tandon decided on 17-2-1978. 17. Thus without going into the controversy as to whether the amount deposited by the Appellant u/s 30 of the U.P. Act No. 13 of 1972 was on the first date of hearing or not and whether it was withdrawn by the Defendant Appellant, I am of the opinion that he cannot claim any benefit on the basis of the said deposit as provisions of Section 30 were not at all applicable. 18. For the reasons recorded, above, in my opinion the judgment and decree passed by the court below do not suffer from any illegality or error of jurisdiction. The appeal has no force and is dismissed with costs.