Kailash Devi v. Ivth A D J Allahabad — 1994 DIGILAW 669 (ALL)

JUDGMENT : - Sudhir Narain, J. The petitioner has challenged the order dated 1-9-1981 passed by IVth Additional District Judge, Allahabad whereby he allowed the revision against the order of the Judge Small Causes, Allahabad. 2. THE facts in brief, are that the petitioner is the landlord and owner of House No. 670 Muthiganj, Shraiya, Allahabad and respondent No. 2 is tenant of the ground floor portion of the aforesaid house. The petitioner filed Suit No. 50 of 1979 on 11-1-1979 in the Court of Judge Small Causes, Allahabad against respondent No. 2 claiming arrears of rent with effect from 1st December, 1976. He claimed monthly rent of the disputed accommodation at Rs. 100 plus Rs. 20 per month as electric charges The summons was issued to respondent No. 2 and the first date of hearing was 16th April, 1979. On the said date respondent No. 2 filed a written statement and further deposited a sum of Rs. 1910. In the written statement he alleged that he had already deposited a sum of Rs. 1187 and an amount of Rs. 1910 was being deposited thus the total amount comes to Rs. 3,097 while according to the claim of the tenant the total amount till 16th April, 1979 was Rs. 3,070 and Rs. 27 was in excess. 3. ON 3rd November, 1979 the petitioner filed an application to strike off the defence of respondent No. 2 under Order XV, Rule 5, C. P. C. in the ground that the tenant did not deposit the full amount. 4. RESPONDENT No. 2 filed objection to the said application on 15-1-1980 and contended that the amount deposited by him on first date of hearing was in excess. On 24-4-1980 he filed another application praying that he may be permitted to file documents, tenders and receipt in evidence. In the application it was stated that he was a businessman so by chance and mistake in the business file the tenders regarding the deposit made by him were packed and sent to Calcutta and now he was found them. He also sought permission to file electric bills and receipts regarding expenses alleged to have been done by him in repairing and white washing of the house. He also sought permission to file electric bills and receipts regarding expenses alleged to have been done by him in repairing and white washing of the house. The Judge Small Causes Court, Allahabad held that the petitioner had not deposited 9% interest on the amount due on the date of first hearing and further he had not deposited monthly rent in time. He failed to comply with the provisions of Order XV, Rule 5 of the Code of Civil Procedure and his defence was liable to be struck off. Respondent No. 2 filed revision against the said order. Respondent No. 1 allowed the revision by order dated 1-9-1981. The petitioner has challenged this order in this writ petition. 5. I have heard the learned counsel for the parties. 6. THE learned counsel for the petitioner contends that respondent No. 2 committed default: (1) By not depositing the amount of interest @ 9% on the date of first hearing on the amount which was alleged to. be due against him. (2) Respondent No. 2 was depositing monthly rent from the period 15-5-1979 to 13-4-1980 but it was not a regular deposit and there was no explanation for the delay in depositing the amount. He has given the following details of deposit of monthly rent: Monthly amount due Date of deposit 14-5-1979 to 13-7-1979 3-8-1979 14-7-1979 to 13-10-1979 24-10-1979 14-10-1979 to 13-1-1980 16-1-1980 14-1-1980 to 13-4-1980 15-4-1980. 9. There is no dispute that respondent No. 2 had deposited the entire arrears of rent on the date of first hearing. THE contention of the learned counsel for the petitioner is that the tenant had not deposited the amount of interest of @ 9%. THE Courts below have found that even alleged excess amount of Rs. 27 is taken into consideration, the petitioner had not deposited the total amount of interest due on the date of first hearing. 10. THE learned counsel for the respondent contended that the respondent was entitled to adjust the amount which was spent by him in appeal repairing and payment for electric bills. 11. In the application dated 24-4-1980 respondent No. 2 has not given the details of the amount and did not lead the evidence to prove this fact. 10. THE learned counsel for the respondent contended that the respondent was entitled to adjust the amount which was spent by him in appeal repairing and payment for electric bills. 11. In the application dated 24-4-1980 respondent No. 2 has not given the details of the amount and did not lead the evidence to prove this fact. He did not indicate as to any amount of the electric bills which the landlord was liable to pay and further to what tenant he incurred the amount in white washing and repairing. In absence of any evidence and allegation by respondent No. 2 it cannot held be that the tenant has discharged his burden to establish that he had paid the amount to landlord was adjustable towards interest as provided under Order XV, Rule 5 of the Code of Civil Procedure. 12. Even if the contention of the respondent is accepted that the entire amount of rent and interest was paid or adjusted on the date of first hearing, the petitioner is still defaulter as he admittedly failed to deposit the monthly rent in time as provided under Order XV, Rule 5 of the C.P.C. 13. THE provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh consists of two parts. In the first part the tenant is liable to deposit the entire arrears of rent admittedly due on the date of first hearing alongwith the interest thereon. THE second part lays down that the deposit has to be made of monthly amount due within a week from the date of accrual through out the continuation of the suit whether or not the defendant admits the amount due. In M/s. Umesh Industries and another v. IXth Additional District Judge, Ghaziabad and others, 1994 (2) ARC 157, it was held that the tenant was liable to make deposit of monthly rent in time. He cannot take the plea that he was not liable to deposit the amount as the landlord/plaintiff owed money to him. THE legislative intent was clear that the monthly amount has to be deposited month to month whether or not the defendant admit any amount to be due. He cannot take the plea that he was not liable to deposit the amount as the landlord/plaintiff owed money to him. THE legislative intent was clear that the monthly amount has to be deposited month to month whether or not the defendant admit any amount to be due. He may not be liable to pay the rent claimed on the date of first hearing, but as regards monthly rent, he has to deposit whether admits or not within the time prescribed, under Order XV, Rule 5 of the C. P. C. , Order XV, Rule 5 (1) of the Code of Civil Procedure reads as under:- "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 his of the rent or compensation for us 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 (ho 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." 14. In the case of Smt. Sahnaz Begum v. Yogendra Kumar and others, 1986 (1) ARC 318, it was held that if the tenant failed to deposit the monthly rent the defence of the tenant was liable to be struck oil. 15. In Smt. Satya Kumari Kamthan v. Noor Ahmad and others, 1992 (2) ARC 82, their Lordships of the Supreme Court took the view that in absence of an application for extension of time, the court will be justified in striking oil' the defence. 16. THE learned counsel for the respondent submitted that even if there is no application for extension of time to deposit the rent and even there is no written representation made on behalf of the tenant, the court may decline to strike off the defence. 16. THE learned counsel for the respondent submitted that even if there is no application for extension of time to deposit the rent and even there is no written representation made on behalf of the tenant, the court may decline to strike off the defence. He placed reliance upon the decision of Bimal Chand Jain v. Gopal Agarwal, AIR 1991 SC 1657, wherein the Supreme Court held that the word 'may' used in sub- rule (1) of Order XV, Rule 5 empower the court not to strike off defence even in absence of representation by tenant, if on the facts and circumstances already existing on record it finds good reason for not striking off the defence. There may be three aspects: (1) THE tenant moves application for extension of time (to deposit amount. THE court may extend the time. (2) THE deposit is made after lapse of time, but on representation being made the court considering the circumstances, may decline to strike off defence under sub-rule (2) of Rule 5. (3) There is no written representation on behalf of the tenant but there is material on record which obliges the court not to exercise the discretion in striking off the defence. 17. In the present case there is no material to indicate that why the petitioner failed to deposit monthly rent in time. Respondent No. 2 had filed objection on 15-1-1980 and application dated 24-4-1980 and in none of them there is any explanation about delay in depositing monthly rent. 18. Respondent No. 1 in its order observed that respondent No. 2 was a business man but there was no allegation that no account of any unfavour able circumstances he could not deposit the amount of monthly rent in time. He only alleged that he could not file the tender and receipts as they were packed and sent to Calcutta. There was no explanation given by him as to why he could not deposit monthly rent in time. 19. In view of the above, the writ petition is allowed, the order passed by respondent No. 1, dated 1-9-1981 is hereby quashed. 20. As the suit is very old the Judge Small Causes Court is directed to decide the suit within six months from the date of presentation of the certified copy of this order. THE parties shall bear their own costs. Petition allowed.