RAM KUMAR SINGH v. IIIRD ADDL DISTRICT JUDGE GHAZIABAD
2002-12-13
S.P.MEHROTRA
body2002
DigiLaw.ai
S. P. MEHROTRA, J. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, inter alia, challenging the judgment and order dated 13-1-1982 passed by IIIrd Addl. District Judge, Ghaziabad (respondent No. 1) (Annexure No. 4 to the writ petition) and the judgment and order dated 22-5-1980 passed by Judge, Small Court, Ghaziabad (respondent No. 2) (Annexure No. 3 to the writ petition ). 2. It appears that the respondent No. 3 filed a suit for ejectment, arrears of rent, and the mesne profits against the petitioner in the Court of Judge, Small Causes, Ghaziabad. The said suit was filed on 2/3-1- 1977, and the suit was registered as Suit No. 26 of 1977. It was, inter alia, alleged in the plaint of the said suit that the petitioner was a tenant in the disputed accommodation described at the foot of the plaint, and that the petitioner was in arrears of rent from 7-12-1974, and that a notice dated 18-11-1976 under Section 20 (2) of the U. P. Act No. XIII of 1972 read with Section 106 of the Transfer of Property Act was given by the respondent No. 3 to the petitioner which was served on the petitioner on 19-11-1976, and thus, the tenancy of the petitioner came to end on 20-12-1976. A copy of the plaint has been filed as Annexure No. 1 to the writ petition. 3. The petitioner filed his written statement dated 14-10- 1977/17-2-1978. In the said written statement, the petitioner, inter alia, alleged that the monthly rent of the disputed accommodation was Rs. 15/- per month and not Rs. 35 as alleged by the respondent No. 3 and that the rent was regularly paid by the petitioner to the respondent No. 3 and it was wrong to allege that the rent was in arrear from 7-12-1974. A copy of the written statement has been filed as Annexure No. 2 to the writ petition. 4. It appears that during the pendency of the suit, respondent No. 3 filed an application No. 6d dated 23-2-1978 under Order XV Rule 5 of the Code of Civil Procedure. The learned Judge, Small Cause Court Ghaziabad (respondent No. 2) proceeded with the trial of the suit, framed issues and recorded the evidence led by the respondent No. 3 as plaintiff and evidence led by the petitioner as defendant.
The learned Judge, Small Cause Court Ghaziabad (respondent No. 2) proceeded with the trial of the suit, framed issues and recorded the evidence led by the respondent No. 3 as plaintiff and evidence led by the petitioner as defendant. One of the issues framed by the respondent No. 2, namely, issue No. 4 was as to whether the defendant (petitioner) complied with the requirements of Order XV Rule 5 of the Code of Civil Procedure and whether the defence of the defendant (petitioner) was liable to be struck off. 5. The respondent No. 2 by his judgment and decree dated 22-5-1980 (Annexure No. 3 to the writ petition) decreed the said suit filed by the respondent No. 3. In its judgment, respondent No. 3 first proceeded to decide Issue No. 4 regarding the compliance of Order XV Rule 5 of the Code of Civil Procedure, and held that the petitioner (defendant) had filed to comply with the requirements of Order XV, Rule 5 of the Code of Civil Procedure, and the defence of the petitioner was liable to be struck off. Thereafter, the respondent No. 2 in the said judgment proceeded to decide other issues. In deciding issue No. 1 regarding the rate of rent of the disputed accommodation, the respondent No. 2 declined to consider the statement of witnesses examined on behalf of the petitioner (defendant) on the ground that the defence of the petitioner had been struck off. The respondent No. 2 decided issue No. 1 holding that the rent of the disputed accommodation was Rs. 35 per month as alleged by the respondent No. 3 (plaintiff ). The respondent No. 2 decided issue No. 2 regarding the applicability of the U. P. Act No. XIII of 1972 to the disputed accommodation holding that the said Act was applicable to the disputed accommodation. On issue No. 3 regarding default in payment of rent by the petitioner, the respondent No. 2 held that the petitioner had committed default in payment of rent as contemplated under Section 20 (2) (a) of the U. P. Act No. XIII of 1972. 6. Against the said judgment and decree dated 22-5-1980, the petitioner field a revision under Section 25 of the Provincial Small Cause Courts Act. The said revision was registered as SCC revision No. 162 of 1981. 7. The IIIrd Addl.
6. Against the said judgment and decree dated 22-5-1980, the petitioner field a revision under Section 25 of the Provincial Small Cause Courts Act. The said revision was registered as SCC revision No. 162 of 1981. 7. The IIIrd Addl. District Judge, Ghaziabad (respondent No. 1) by his judgment and order dated 13-1- 1983 (Annexure No. 4 to the writ petition) dismissed the said revision filed by the petitioner. The respondent No. 1 inter alia, held that the petitioner failed to comply with the requirements for depositing the rent due during the pendency of the suit as contemplated under Order XV Rule 5 (1) of the Code of Civil Procedure, as such the respondent No. 2 rightly struck off the defence of the petitioner. 8. Thereafter, the petitioner filed this writ petition. The service of notice of this case on respondent No. 3 was held to be sufficient by order dated 27-7-2001. 9. Sri S. A. Shah, learned Counsel for the petitioner submits that the provision made under Order XV, Rule 5 of the Code of Civil Procedure for striking off the defence of the defendant was a penal provision. Once an application No. 6d dated 23-2-1978 under Order XV, Rule 5 of the Code of Civil Procedure had been filed by the respondent No. 3, it was incumbent upon the learned Judge, Small Causes Court, Ghaziabad (respondent No. 2) to first decide the said application, and only thereafter to proceed to record evidence in the suit. However, the learned Judge, Small Causes Court, Ghaziabad (respondent No. 2) did not decide the said application No. 6-D dated 23-2-1978 ; instead, he proceeded with the trial of the suit, framed issues and recorded evidence of the plaintiff as well as the defendant. In the circumstances, the defence of the petitioner (defendant) could not be struck off, and the learned Judge, Small Causes Court (respondent No. 2) acted illegally in deciding issue No. 4 and striking off the defence of the petitioner. The learned IIIrd Addl. District Judge (respondent No. 1) acted illegally in dismissing the revision filed by the petitioner. 10. Sri Shah, learned Counsel for the petitioner submits that it is not disputed that the defence can be struck off even after the closure of the evidence if there is default by the defendant is complying with the provisions of Order XV, Rule 5 of the Code of Civil Procedure.
10. Sri Shah, learned Counsel for the petitioner submits that it is not disputed that the defence can be struck off even after the closure of the evidence if there is default by the defendant is complying with the provisions of Order XV, Rule 5 of the Code of Civil Procedure. However, this will depend on the facts of each case. Sri Shah contends that in the present case, as the application had been filed by the respondent No. 3 prior to the recording of evidence, the same should have been disposed of before proceeding to record the evidence of the parties. 11. Sri Shah, learned Counsel for the petitioner, has placed reliance on the following decisions: (1) Mahboob alias Challa v. Mohammad Hussain and others, 1983 ARC 651. (2) Bharat Bhushan Mishra v. District Judge Gonda and others, 1990 ALJ 292. (3) Bal Krishna v. Ramanand Dixit and another, 1996 (2) JCLR 923 (All) ; 1996 ALJ 1946. (4) Rajendra Pal Garg and others v. 1st Addl. District Judge, Dehradun and others, 1987 (2) ARC (289 ). 12. In order to appreciate the submission made by Sri Shah, learned Counsel for the petitioner, it is necessary to reproduce Order XV, Rule 5 of the Code of Civil Procedure: "5. Striking off defence for failure to deposit admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee from any immovable property after 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 percent per annum and whether or not he admits any amount to be due, he shall throughout the continuance 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 the sub-rule (2) strike off his defence.
Explanation 1.- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the date mentioned. Explanation 2.- The expression "entire amount admitted by him to be due" means the entire cross 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 lessors account and the amount, if any, paid to the lessor acknowledged by the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessors account. (2) Before making an order for striking off defence, the Court any 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- section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff : Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any amount, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same". 13.
13. A perusal of the aforesaid provision of Order XV, Rule 5 of the Code of Civil Procedure shows that the said provision is applicable to any suit filed by a lessor for eviction of a lessee from an immovable property after determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during continuance of the lease or of compensation for the sue and occupation thereof after the determination of the lease. 14. The aforesaid provision of Order XV Rule 5 (1) of the Code of Civil Procedure shows that there are two parts in the said provision: (A) On or before the first hearing of the suit, the defendant shall deposit the entire amount admitted by him to be due together with interest at the rate of 9% per month. The meaning of the expression "first hearing" has been given in Explanation 1 to sub-rule (1) of Order XV Rule 5 of the Code of Civil Procedure. Accordingly, the "first hearing" means the date for filing of the written statement or for hearing mentioned in the summons. In case, more than one of such dates are mentioned, "first hearing" will be the last of the dates mentioned. The meaning of the expression "entire amount admitted by him to be due" has been given in Explanation 2 to sub-rule (1) of Order XV, Rule 5 of the Code of Civil Procedure. Accordingly, the "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 following : (i) The taxes, if any, paid to a local authority in respect of the building on lessors account. (ii) The amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him. (iii) The amount, if any, deposited in any Court under Section 30 of the U. P. Act No. XIII of 1972. (B) Whether or not the defendant admits any amount to be due, he shall throughout the continuance of the suit deposit regularly the monthly amount due within a week from the date of its accrual.
(iii) The amount, if any, deposited in any Court under Section 30 of the U. P. Act No. XIII of 1972. (B) Whether or not the defendant admits any amount to be due, he shall throughout the continuance of the suit deposit regularly the monthly amount due within a week from the date of its accrual. The meaning of the expression "monthly amount due" has been given in Expression 3 to sub-rule (1) or Order XV, Rule 5 of the Code of Civil Procedure. Accordingly, "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessors account. It will, thus, be seen that the first part of Order XV, Rule 5 (1) of the Code of the Civil Procedure, namely, the head (A) above deals with the deposit of arrears of rent/compensation due from the defendant with interest thereon provided such arrears are admitted by the defendant to be due from him. On the other hand, the second part of the said provision, namely, head (B) above deals with the monthly deposit of rent/compensation at the admitted rate of rent to be made by the defendant throughout the continuance of the suit irrespective of the fact whether the defendant admits any amount to be due from him or not. In case, the defendant fails to comply with any of the aforesaid two parts of Order XV, Rule 5 (1) of the Code of Civil Procedure, the Court may strike off the defence of the defendant. However, the provision for striking off the defence under sub-rule (1) of Order XV, Rule 5 of the Code of the Civil Procedure is subject to sub-rule (2) of the said provision. According to sub-rule (2) of Order XV, Rule 5 of the Code of Civil Procedure, before making an order for striking off the defence, the Court may consider any representation made by the defendant in that behalf. Such representation is required to be made within 10 days of the first hearing where the aforesaid first part, namely, head (A) is applicable.
Such representation is required to be made within 10 days of the first hearing where the aforesaid first part, namely, head (A) is applicable. In case the aforesaid second part namely, head (B) above is applicable, such representation is required to be made within 10 days of the expiry of a week referred to in sub-rule (1) of Order XV, Rule 5 of the Code of Civil Procedure, that is, within 10 days of the expiry of a week from the date of accrual of the "monthly amount due. " 15. Let us first consider the submission of the learned Counsel for the petitioner that as the application No. 6d dated 23-2-1978 had been filed by the respondent No. 3 prior to recording of evidence, the same should have been disposed of before proceeding to record the evidence of the parties. 16. I have considered the submission made by the learned Counsel for the petitioner, and I find myself unable to accept the same. As noted above, the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure provides that whether or not the defendant admits any amount to be due, he must regularly deposit throughout the continuance of the suit the monthly amount due within a period of one week from the date of its accrual. Therefore, this provision shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus evident that the defendant is bound to ensure compliance of the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure throughout the continuance of the suit. In the event of any default by the defendant in compliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure, the defence of the defendant may be struck off by the Court as the monthly deposited is required to be made throughout the continuance of the suit. It is open to the Court to strike of the defence of the defendant at any stage during the continuance of the suit, in case, there is failure on the part of the defendant in compliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure.
It is open to the Court to strike of the defence of the defendant at any stage during the continuance of the suit, in case, there is failure on the part of the defendant in compliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure. The defence of the defendant can, therefore, be struck off at any stage during the continuance of the suit. Secondly, it is for the Court to decide as to at what point of time it would consider the question as to whether the defence of the defendant is to be struck off on account of non-compliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure. Even though an application is filed by the plaintiff for striking off the defence of the defendant on account of non-compliance with the provisions of Order XV, Rule 5 (1) of the Code of Civil Procedure, it is for the Court to decide as to at what point of time such application of the plaintiff would be considered. The Court may in its discretion decide that the question or issue regarding the striking off the defence of the defendant on account of non- compliance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, would be decided along with other issues framed in the suit after the evidence of the parties is recorded. In case, the Court adopts such procedure, it cannot, in my opinion, be said that the Court has acted in any illegal manner. 17. Once, it is accepted that the compliance with Order XV Rule 5 of the Code of Civil Procedure is to be ensured by the defendant throughout the continuance of the suit and the defence of the defendant can be struck off even after the closure of the evidence, it evidently shows that the Court may in its discretion decide as to at what stage or what point of time, it would consider the question regarding the striking off the defence of the defendant on account of non-compliance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure. 18.
18. Therefore, even though in the present case, an application No. 6d dated 23-2-1978 had been filed by the respondent No. 3 (plaintiff), still it was open to the respondent No. 2 to decide in its discretion as to at what point of time, the said application of the respondent No. 3 (plaintiff) was to be considered. 19. The respondent No. 2, as noted above proceeded with the trial of the suit, framed issues and recorded evidence led by the respondent No. 3 as plaintiff and evidence by the petitioner as defendant. One of the issues framed by the respondent No. 2, namely, issue No. 4 was as to whether the defendant (petitioner) complied with the requirements of Order XV, Rule 5 of the Code of Civil Procedure and whether the defence of the defendant (petitioner) was liable to be struck off. 20. It is, thus, evident that in the present case, the respondent No. 2 in its discretion decided that it would be proper to decide the question or issue regarding the striking off the defence of the defendant (petitioner) on account of non-compliance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure along with other issued framed in the said suit. No exception, in my opinion, can be taken to the said procedure adopted by the respondent No. 2. 21. No interference is, therefore, called for with the impugned order on account of the procedure adopted by the respondent No. 2. 22. Learned Counsel for the petitioner has placed reliance on the decision in Rajendra Pal Garg and others v. Ist Addl. District Judge, Dehradun and others (supra) in support of his aforesaid submission. In this case, a learned single Judge of this Court laid down as follows (paragraph No. 3 of the said ARC): " (3) I have heard Sri L. P. Naithani, learned Counsel for the petitioner. The Counsel for petitioner urged that once the plaintiff-respondents led their evidence and closed the question of striking off defence as preliminary issue was wholly uncalled for and the revisional Court committed an error in directing the trial Court to decide the question of striking off defence first before disposing of the suit on merit.
The Counsel for petitioner urged that once the plaintiff-respondents led their evidence and closed the question of striking off defence as preliminary issue was wholly uncalled for and the revisional Court committed an error in directing the trial Court to decide the question of striking off defence first before disposing of the suit on merit. After hearing the Counsel for the parties, I am of the view that the order passed by the revisional Court suffers from error of law and is liable to be quashed. Since the plaintiff have already closed his evidence and three witnesses have been examining on behalf of the petitioner in my opinion it is not proper to decide the preliminary issue at this stage. I, therefore, quash the order dated 28-10-1986 passed by the 1st Addl. District Judge, Dehradun and direct the trial Court to dispose of the suit finally on merits. The trial Court while disposing of the suit on merit will also record finding on the question whether there has been compliance of Order XV, Rule 5 CPC. The writ petition succeeds and is allowed. Parties shall bear their own costs. " 23. This decision was overruled by a Division Bench of this Court in Bal Krishna v. Rama Nand Dixit and another (supra), hence, it is not open to the learned Counsel for the petitioner to place reliance on the said decision of the learned single Judge of this Court in the Rajendra Pal Garg (supra ). 24.
" 23. This decision was overruled by a Division Bench of this Court in Bal Krishna v. Rama Nand Dixit and another (supra), hence, it is not open to the learned Counsel for the petitioner to place reliance on the said decision of the learned single Judge of this Court in the Rajendra Pal Garg (supra ). 24. In Bal Krishna case (supra), the Division Bench of this Court laid down as follows (paragraph No. 15, 16, 19 and 21 of the said ALJ): " (15) Therefore, as far as second limb of sub-rule (1) of Rule 5 of Order XV of the Code is concerned, the settled legal position is this that 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/tenant shall throughout the continuance 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 monthly amount due, the Court may strike off his defence, of course after considering representation if any made by the defendant/tenant in that behalf within 10 days of the expiry of the period of a week from the date of the accrual. Order XV Rule of the Code, no where refers about the closure of the evidence of the plaintiff. Hence in our considered opinion closure of the evidence of the plaintiff has nothing to do with the statutory liability of the defendant/tenant to regularly deposit the monthly amount due throughut the continuance of the suit within a week from the date of its accrual and in the event of any default in making such deposit the Court may strike off his defence irrespective of the fact whether the plaintiff has closed its evidence or not. The only safeguard provided in this regard is that before making the order to strike off the defence, the Court may consider the representation of defendant/tenant if made within 10 days of the expiry of the week referred to in sub- section (1) of Rule 5 of Order XV of the Code.
The only safeguard provided in this regard is that before making the order to strike off the defence, the Court may consider the representation of defendant/tenant if made within 10 days of the expiry of the week referred to in sub- section (1) of Rule 5 of Order XV of the Code. (16) Thus, with due regard to the learned single Judge in Gargs case, 1987 (2) All Rent Case 289 (supra), we may say that the second limb referred to above has not been taken into account in that case, and therefore, in our opinion, learned single Judge while referring the matter to the larger Bench in the instant case has rightly opined that Gargs case (supra) requires reconsideration. (19) Thus, in our considered opinion the ratio laid down in Gargs case 1987 (2) All Rent Case, 289, (supra), is not in consonance with the provisions of Order XV of Rule 5 CPC the same consequently stands no longer a good law. (20) However, as discussed above, our precise answer to the question referred to us is that in view of the provisions of Rule 5 of Order XV of the Code, where the defendant commits default in making the deposit of the monthly amount due, during the continence of the suit, even after the closure of the evidence of the plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV Rule 5 CPC and decide the same on merits. " (Emphasis supplied) 25. In Mahboob alias Challa v. Mohammad Hussain and others (supra), a learned single Judge of this Court held as follows (paragraph No. 5 of the said ARC): " (5) It is now well-settled that the Court is not obliged to strike off the defence in every case of default. The discretion has to be exercised keeping in view the facts and circumstances of the case. Even in the absence of a representation the Court may not strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so.
The discretion has to be exercised keeping in view the facts and circumstances of the case. Even in the absence of a representation the Court may not strike off the defence if on the facts and circumstances already existing on the record, it finds good reason for not doing so. In the instant case, no doubt, it was urged on behalf of the plaintiff, before the trial Court, that as the defendant had failed to deposit regularly the monthly rent in the Court as required under Order XV, Rule 5 of the Code, his defence was liable to be struck off. The trial Court framed an issue on the point. The Court should have decided that issue preliminary issue, but it did not do so and permitted the parties to lead evidence. The defence was thus not struck off. The plaintiff examined his son as a witness in the case in support of his contention. The defendant was permitted to cross-examination the witness, then the defendant was permitted by the trial Court to examine himself, as a witness and the case was fixed for arguments. In these circumstances, it has to be concluded by necessary implication that the trial Court declined to exercise its discretion to strike out the defence under Order XV, Rule 5 of the Code. Rather it allowed the defendant to adduce oral evidence also. It may be noted here that the defendant was allowed to adduce documentary evidence as well. If the defence had been struck out, the defendant was even then entitled to cross-examine the witness of the plaintiff but he would not have been entitled to examine his own witness. Any way, the defence was not struck out, though there was a request of the plaintiff in that behalf and an issue had been framed on the point. The defendant, as pointed out earlier, was not only permitted to cross-examine the witnesses of the plaintiff but was also allowed to examine himself as a witness and the plaintiff cross-examined him. Impliedly, therefore, the discretion was not exercised till then in striking out the defence under Order XV, Rule 5 of the Code. The trial Court decided that issue No. 5 in the judgment. It also decided other issues on merits, it ignored the evidence adduced by the defendant.
Impliedly, therefore, the discretion was not exercised till then in striking out the defence under Order XV, Rule 5 of the Code. The trial Court decided that issue No. 5 in the judgment. It also decided other issues on merits, it ignored the evidence adduced by the defendant. The revisional Court also ignored the documentary and oral evidence adduced by the defendant while concurring with the findings reached by the trial Court on issue Nos. 1 and 4. Both the Courts thus committed manifest error of law in recording findings on issues No. 1 and 4 but not considering the evidence adduced by the defendant. True, it is, that the trial Court held that the defence was liable to be struck out, but that finding was not reached before oral evidence was recorded, and once the trial Court permitted the defendant to lead oral evidence also on the point, it was the duty of trial Court to decide all the issues on merits, by considering not only the evidence adduced by the plaintiff but also documentary and oral evidence adduced by the defendant in the case. The impugned judgments of the Courts below thus suffer from manifest error of law resulting in manifest injustice. They are, therefore, liable to be quashed. " 26. Thus, judgment, in my opinion, cannot be interpreted to lay down as a general proposition that in all cases where evidence has been recorded, the defence cannot struck off. Such an interpretation would run counter to the provisions of Order XV, Rule 5 of the Code of Civil Procedure as well as the aforesaid Division Bench decision in Bal Krishna case (supra ). It is noteworthy that the said Division Bench decision in Bal Krishna case (supra) noticed the said decision of the learned single Judge in Mahboob alias Challa case (supra), in paragraph No. 20 of the said ALJ in the following words: " (20) In Mahboob v. Mohammad Hussain, (1983) 1 All Rent Case 651:1983 All LJ 1048, Lucknow Bench of this Court observed that the Court should decide the question of striking off defence as a preliminary issue before allowing the parties to adduce evidence on merits of the case. Not deciding such question as preliminary issue is not justified.
Not deciding such question as preliminary issue is not justified. The question regarding non-deposit of rent raised at any stage of the suit and consequently striking off of the defence has to be decided first. " 27. Thus, the Division Bench neither approved nor disapproved the said decision of the learned single Judge in Mahboob alias Challa case (supra ). In my opinion, this was on account of the fact that the said decision of the learned single Judge in Mahboob alias Challa (supra) was passed on the peculiar facts and circumstances of the said case. 28. In Bharat Bhushan Mishra v. District Judge, Gonda and others (supra) relied upon by the learned Counsel for the petitioner, a learned single Judge of this Court laid down as follows (paragraph Nos. 6, 7 and 8 of the said ALJ): " (6) As against this, there is a recent decision of this Court in Rajendra Pal Garg v. Addl. District Judge, Dehradun, (1987) 2 All Rent Case 289. In that case application under Order XV, Rule 5, CPC was moved after evidence had been recorded. The trial Court rejected this application. The revisional Court remanded the matter with the direction to the trial Court to decide the application as a preliminary issue for striking off the defence under the said provision. The writ petition was allowed with the observation that: "since the plaintiff has already closed his evidence and three witnesses have been examined on behalf of the petitioner, in my opinion, it is not proper to decide the preliminary issue at this stage. " The decision in Rajendra Pal Gargs case, 1987-2 All Rent Case 289, being latter, I am bound by it. Even otherwise I respectfully agree with the view adopted in Rajendra Pal Gargs case. The power to strike out the defence is conditioned by the fact that the Court is to consider any representation as may be made by the defendant. Such representation made by the defendant as to the default for payment of arrears month after month rent. Such representation as is provided in sub-rule (2), is to be made within ten days of the first hearing or, of the expiry of the week referred to in sub-rule (1) as the case may be. Appropriate course for a defaulting tenant obviously is to make representation within the time permitted under sub-rule (2 ).
Such representation as is provided in sub-rule (2), is to be made within ten days of the first hearing or, of the expiry of the week referred to in sub-rule (1) as the case may be. Appropriate course for a defaulting tenant obviously is to make representation within the time permitted under sub-rule (2 ). In the present case however, there was no prayer for striking off the defence and in a way that could have become a contributory factor for delayed deposit in respect of certain months. The suit was filed on 30-5-1977 and as would appear from the order of the trial Court there was no default in payment of arrears of rent for the period to April, 1977 and for that reason there was no case to seek striking off the defence. Had any application been moved under Order XV, Rule 5 CPC at the stage of first hearing of the suit, that would have altered the defendant and the deposit could have been made month after month as per the requirement of the said provision. The plaintiff- respondent chose not to seek the striking out of the defence of the defendant-petitioner and delay occurred in payment of rent for certain months. The fact, however, remains that admittedly the entire rent due upto February, 1980 had been deposited by the defendant-petitioner. Learned Counsel for the respondent submits that rent for the months regarding which there is no reference in the order of the trial Court was actually not deposited. This submission cannot be accepted because the position which transpires is that the learned trial Court had only mentioned months for which there was delay in payment. As for the other months the payments would obviously have been made within the specified time. In the facts of the present case there was no justification for striking off the defence when the evidence had been concluded and the suit was at the argument stage. (7) The defendant-petitioner had submitted his explanation for the delayed payment. It is submitted that the plea of the defendant raised by way of explanation for the delay was not controverted by any objection or affidavit and that the learned trial Court or the revisional Court did not consider the explanation submitted by the defendant-petitioner.
(7) The defendant-petitioner had submitted his explanation for the delayed payment. It is submitted that the plea of the defendant raised by way of explanation for the delay was not controverted by any objection or affidavit and that the learned trial Court or the revisional Court did not consider the explanation submitted by the defendant-petitioner. As has already been observed order for striking off defence can be passed only after the representation by the defendant has been duly considered. The representation of the defendant-petitioner was, however, not considered in the present case and the impugned orders have been passed mainly on the ground that if there is default in compliance with the conditions of Order XV, Rule 5 CPC the defence is necessarily to be struck out. The law laid down in Sohan Lal v. Hodal Singhs case, AIR 1979 All 230 (supra) is no more good law. The provision of Order XV, Rule 5, Civil Procedure Code was subjected to interpretation by Honble Supreme Court in Bimal Chand Jain v. Sri Gopal Agarwal, 1981 All Rent Case 463:1981 All LJ 908. Following observations made in that decision may usefully be reproduced: "we much remember that an order under sub-rule (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 reasons for not doing so. It will always be a matter for the judgment of the Court to decide whether on the material before it, not- withstanding the absence of a representation under sub-rule (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 (supra ). We are of the opinion that the High Court has passed an unduly narrow construction on the provision of clause (1) of Rule 5 of Order XV.
To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra ). We are of the opinion that the High Court has passed an unduly narrow construction on the provision of clause (1) of Rule 5 of Order XV. " (8) This question came up for consideration before this Court in Sultan Ahmad v. Goberdhan Das, 1983 (1) ARC 161. Purpose of Rule 5 of Order XV, was explained in this case with the observation that it was not intended that this provision may be made basis for eviction of the tenants and should be interpreted to cover only those cases where there was deliberate default in payment of arrears of rent. This decision was given following the observation of the Supreme Court in Bimal Chand Jains case 1981 All LJ 908 (supra) and also in Jugmander Das v. Ram Phal and others, 1982 (1) ARC 2 : AIR 1982 All 102 . I respectfully agree with the view expressed and the interpretation laid down in Sultan Ahmads case and I am of the view that in the facts of the present case the learned trial and the revisional Court ought not to have been literal and narrow interpretation of the provisions of Order XV, Rule 5, Civil Procedure Code. The explanation submitted by the defendant in the suit merited acceptance. This is not a fit case for exercising discretion in directing defence to be struck off for the default reflected in the delayed deposits of rent for certain months after the institution of the suit. Moreover, this request for striking off the defence ought not to have been considered after the evidence had been closed and the suit was listed for argument. " 29. This decision as is evident from paragraph Nos. 7 and 8 reproduced above is based on the peculiar facts and circumstances of that case. This decision, therefore, cannot be interpreted to lay down as a general proposition that the defence cannot be struck off after the evidence has been concluded and the suit is at the argument stage. Such an interpretation would run counter to the provisions of Order XV, Rule 5 of the Code of Civil Procedure as well as the decision of the Division Bench in Bal Krishna case (supra ). 30.
Such an interpretation would run counter to the provisions of Order XV, Rule 5 of the Code of Civil Procedure as well as the decision of the Division Bench in Bal Krishna case (supra ). 30. Further, a perusal of paragraph No. 6 of the said decision of the learned single Judge in Bharat Bhushan Mishra case (supra) quoted above, shows that the said decision was based on the decision of the learned single Judge in Rajendra Pal Garg case (supra ). The said decision of the learned single Judge in Rajendra Pal Garg case (supra), as noted above, was overruled by the Division Bench in Bal Krishna case (supra ). Therefore, it is no longer open to the learned Counsel for the petitioner to place reliance on the decision of the learned single Judge in Bharat Bhushan Mishra (supra ). 31. Let us now consider the question as to whether defence of the petitioner was rightly struck off in the present case in the light of the provisions of Order XV, Rule 5 of Code of Civil Procedure. 32. Sri S. A. Shah, learned Counsel for the petitioner referred to paragraph No. 7 of the plaint (Annexure No. 1 to the writ petition) of the aforesaid Suit No. 26 of 1977 wherein it was, inter alia, alleged that the petitioner was in arrears of rent. The said allegations made in paragraph No. 7 of the plaint were replied to in paragraph No. 7 of the written statement (Annexure No. 2 to the writ petition) filed on behalf of the petitioner in the said Suit No. 26 of 1977. In paragraph No. 7 of the written statement, the petitioner denied that any rent was due from him. Again in paragraph No. 13 of the written statement, the petitioner denied that any rent was due from him, and asserted that he had regularly paid rent every month to the respondent No. 3. 33.
In paragraph No. 7 of the written statement, the petitioner denied that any rent was due from him. Again in paragraph No. 13 of the written statement, the petitioner denied that any rent was due from him, and asserted that he had regularly paid rent every month to the respondent No. 3. 33. In view of the said allegations made in the written statement filed on behalf of the respondent No. 3, learned Counsel for the petitioner submits that as the petitioner had not admitted any amount to be due from him to the respondent No. 3, the petitioner was not required to make any deposit on or before the "first hearing" of the suit as contemplated in the first part of Order XV, Rule 5 (1) of the Code of Civil Procedure, namely, head (A) above. 34. I have considered the submission made by the learned Counsel for the petitioner, I am of the opinion that the submission made by the learned Counsel for the petitioner is well founded. As noted above, the deposit of entire arrears of rent/compensation with interest thereon or before the "first hearing" of the suit is to be made by the defendant only if the defendant admits any such arrears to be due from him. In the present case, the petitioner (defendant) specially denied that any arrears was due to be paid by him. Therefore, the petitioner was not required to make any deposit on or before the "first hearing" of the suit. 35. Further, question regarding the alleged deposits by the petitioner (defendant) prior to the filing of the said suit No. 26 of 1977, and the said deposit being in accordance with Order XV, Rule 5 (1) of the Code of Civil Procedure or not, was not relevant for deciding issue No. 4 regarding the non-compliance of the provisions of Order XV, Rule 5 of Code of Civil Procedure and consequent striking off of defence of the petitioner (defendant ). For deciding the question of compliance of Order XV, Rule 5 of the Code of Civil Procedure, the relevant questions to be considered, inter alia, are the deposit of admitted of arrears (with interest thereon) on or before the "first hearing" of the suit, and the monthly deposit during the continuance of the suit whether admitted or not.
For deciding the question of compliance of Order XV, Rule 5 of the Code of Civil Procedure, the relevant questions to be considered, inter alia, are the deposit of admitted of arrears (with interest thereon) on or before the "first hearing" of the suit, and the monthly deposit during the continuance of the suit whether admitted or not. The question of the alleged deposit by the defendant prior to the filing of the suit, and such deposit being in accordance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, is not relevant for deciding the question of compliance of the provisions of Order XV, Rule 5 of the Code of Civil Procedure. 36. Thus, the learned Judge, Small Cause Court (respondent No. 2) while deciding issue No. 4 erred in considering the question regarding the alleged deposits by the petitioner prior to the filing of the said Suit No. 26 of 1977 being in accordance with Order XV, Rule 5 of the Code of Civil Procedure or not. 37. Again, as noted above, the petitioner had specifically denied that any arrears were due from him to the respondent No. 3, and therefore, the petitioner was not required to make any deposit on or before the "first hearing" of the suit. 38. The question which, therefore, remains to be considered is as to whether the petitioner (defendant) complied with the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure, namely head (B) above, or not. 39. Learned IIIrd Additional District Judge, Ghaziabad (respondent No. 1) in his judgment and order dated 13-1-1982 considered this question in detail. The respondent No. 1, inter alia, held that even after the institution of the said Suit No. 26 of 1977, the petitioner had deposited rent under Section 30 of the U. P. Act No. XIII of 1972 in the Court of Munsif City Ghaziabad instead of depositing the same in the said suit No. 26 of 1977 before respondent No. 2. 40. It was, inter alia, held that the petitioner (defendant) had not deposited the admitted rent after filing of the suit within a week from the date it fell, nor did he make any representation within 10 days of the expiry of the period of one week.
40. It was, inter alia, held that the petitioner (defendant) had not deposited the admitted rent after filing of the suit within a week from the date it fell, nor did he make any representation within 10 days of the expiry of the period of one week. Instead, the petitioner deposited rent of 3-4 months at one time after it became due, thus, it was held, the provisions of Order XV, Rule 5 of Code of Civil Procedure were not complied with by the petitioner. It was further held that the petitioner (defendant) did not comply with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, nor did he make any representation as provided under the said Rule. It was, therefore, concluded by the respondents No. 1 that the respondent No. 2 had rightly struck off the defence of the petitioner. 41. As noted above, the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure, namely head (B) above provides that whether or not the defendant admits any amounts to be due, he shall throughout the continuance of the suit deposit regularly monthly amount due within a period of one week from the date of its accrual. The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessors account. Thus, the deposit under the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure is mandatory whether or not the defendant admits any amount to be due. However, "monthly amount due" required to be deposited under the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure is required to be deposited at the admitted rate of rent. 42. As per the own case of the petitioner as set up in the written statement filed in the said suit No. 26 of 1977, the rate of rent was Rs. 15/- per month. Hence, the petitioner was required to make monthly deposit at the rate of Rs. 15/- per month in accordance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure. In other words, the petitioner was required to deposit regularly Rs.
15/- per month. Hence, the petitioner was required to make monthly deposit at the rate of Rs. 15/- per month in accordance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure. In other words, the petitioner was required to deposit regularly Rs. 15/- per month as rent/compensation within a week from the date of its accrual throughout the continuance of the said suit No. 26 of 1977 in the Court where the said suit No. 26 of 1977 was pending. 43. As noted above, even after the institution of the said suit No. 26 of 1977, the petitioner continued to deposit the rent under Section 30 of the U. P. Act No. XIII of 1972 in the Court of Munsif Ghaziabad instead of depositing the same in the said Suit No. 26 of 1977 before the respondent No. 2. Moreover, instead of deposing the rent/compensation regularly every month within a week of its accrual, the petitioner deposited rent of 3-4 months at one time after it became due. 44. The question arises as to whether the petitioner complied with the requirements of the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure or not. 45. Explanation 2 to sub-rule (1) of Order XV, Rule 5 of the Code of Civil Procedure shows that the amount, if any, deposited in the Court under Section 30 of the U. P. Act No. XIII of 1972 may be deducted while computing the "entire amount admitted by him to be due" which is required to be deposited by the defendant on or before the "first hearing" of the suit. This provision clearly shows that the deposit under Section 30 of the U. P. Act No. XIII of 1972 may be made before the "first hearing" of the suit as contemplated in Explanation 1 to Order XV, Rule 5 (1) of the Code of Civil Procedure.
This provision clearly shows that the deposit under Section 30 of the U. P. Act No. XIII of 1972 may be made before the "first hearing" of the suit as contemplated in Explanation 1 to Order XV, Rule 5 (1) of the Code of Civil Procedure. Once "first hearing" as contemplated in Explanation 1 to Order XV, Rule 5 (1) of the Code of Civil Procedure arrives, the defendant is bound to make deposit, whether in the first part of Order XV, Rule 5 (1) of the Code of Civil Procedure or in the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure, in the Court where the suit for eviction and recovery of rent/compensation for use and occupation has been filed. It is not open to the defendant to continue to deposit rent under Section 30 of the U. P. Act No. XIII of 1972 even after the "first hearing" of the suit as defined in Explanation 1 to Order XV, Rule 5 (1) of the Code of Civil Procedure. In case defendant continues to make deposit under Section 30 of the U. P. Act No. XIII of 1972 on or after the "first hearing" of the suit as defined in Explanation 1 to Order XV, Rule 5 (1) of the U. P. Act No. XIII of 1972, such deposit will be illegal, and the same can not be taken into consideration for the purpose of Order XV, Rule 5 of the Code of Civil Procedure. 46. In Basant Kumar Chauhan v. VIIth Additional District Judge, Bareilly and others, 1994 (1) ARC 107, A learned single Judge of this Court laid down as follows (paragraph Nos. 10, 11, 12, 13, 14, 15 and 16 of the said ARC): (10) "a perusal of the provisions contained in Order XV, Rule 5 of the Civil Procedure Code makes it clear that under the scheme of that order a deposit of rent on or before the date of first hearing might be made under Section 30 of the U. P. Act No. 13 of 1972.
The Explanation II to Order XV, Rule 5 (1) of the Civil Procedure Code amply clarifies that the expression `entire amount admitted to be due meant for 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 lessors account and the amount, if any, paid to the lessor acknowledged by the lessee in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. (11) It is, therefore, obvious that the provisions contained in Order XV, Rules 5, read with Explanation II clearly stipulate that any amount deposited in any Court under Section 30 of the U. P. Act No. 13 of 1972 could be taken notice of by the Court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. The expression monthly amount due has been explained vide Explanation III to Order XV, Rule 5 of the Civil Procedure Code and means the amount due very month whether as rent or compensation for use and occupation at the admitted rate of rent after making no other deduction except the tax, if any, paid to a local authority in respect of the building on lessors account. Considering the Explanation III to Order XV, Rule 5 of the Civil Procedure Code it is clear that for finding out the monthly amount due the deposits made in the any Court under Section 30 of the U. P. Act No. 13 of 1972 are not to be taken into account.
Considering the Explanation III to Order XV, Rule 5 of the Civil Procedure Code it is clear that for finding out the monthly amount due the deposits made in the any Court under Section 30 of the U. P. Act No. 13 of 1972 are not to be taken into account. However, in Explanation II there is a clear mention of the deposits, if any, made in any Court under Section 30 of the U. P. Act No. 13 of 1972 which may be taken into notice and adjusted while considering the entire amount admitted by the tenant to be due which is required to be deposited at or before the first hearing of the suit. The omission appears to be deliberate and is indicative of the fact that for the purpose of the deposits towards the monthly amount due as contemplated in second part of Order XV, Rule 5 (1) of the Civil Procedure Code, any deposit in any Court under Section 30 of the U. P. Act No. XIII of 1972 is not taken into account. Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under Explanation III to Order XV, Rule 5 (1) of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck off. Of course, the delay if any, in making the deposits required to be made under the second part of Order XV, Rule 1 of the Civil Procedure Code could be condoned, on the representation of the tenant provided he makes out a sufficient ground for the same. (12) It may further be noticed that Section 30 of the U. P. Act No. 13 of 1972 is confined to deposit of rent concerning a building as defined in that Act. Under Order XV, Rule 5 (1) of the CPC deposit is required to be made regularly within a week from the date when the monthly about falls due.
(12) It may further be noticed that Section 30 of the U. P. Act No. 13 of 1972 is confined to deposit of rent concerning a building as defined in that Act. Under Order XV, Rule 5 (1) of the CPC deposit is required to be made regularly within a week from the date when the monthly about falls due. No such rider can obviously be read into a deposit under Section 30 of the U. P. Act No. 13 of 1972 as pointed out by, this Court in its decision in the case of Shyam Kishore Agarwal v. VIIth Additional District Judge, Kanpur and others, reported in 1984 AWC (Supplement) 555 ; 1984 (2) ARC 534. This also suggests that the deposit contemplated is a deposit in the Court where the suit is pending. (13) An other aspect which also cannot be lost sight of is that under the provisions contained in Order XV, Rule 5 of the Civil Procedure Code as applicable to the State of U. P. the monthly amount due as clarified under Explanation III to the said Rule has to be deposited throughout the continuance of the suit within a week from the date of its accrual. The suit referred to therein is a suit by a lessor for the eviction of a lessee after the determination of his lease and for recovery from him of rent or compensation for use and occupation. The proceedings under Section 30 of the U. P. Act No. 13 of 1972 cannot be deemed to be a suit as envisaged under Section 26 of the Civil Procedure Code. The suit has no where been defined in the Civil Procedure Code. A proceeding in the nature of a suit is initiated by the presentation of a plaint in a Court for the adjudication of the rights of the parties. In its decision in the case of Hansraj v. Dehradun M. E. T. Co. Ltd. , reported in AIR 1933 PC 63, the Privy Council had observed that the word suit ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.
In its decision in the case of Hansraj v. Dehradun M. E. T. Co. Ltd. , reported in AIR 1933 PC 63, the Privy Council had observed that the word suit ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. In its decision in the case of Rameshwar Dayal v. Banda (dead) through his L. Rs and another, reported in 1993 (1) ARC 249, the apex Court while noticing the difference between a decree order and judgment as defined under the Civil Procedure Code had observed that the definition of decree, order and judgment given in the Code show that decree or order as the case may be can some into existence only if there is an adjudication on the relevant issues which conclusively determines the right of the parties with regard to all or any matters in controversy in the suit. (14) A perusal of the provisions contained in Section 30 of the U. P. Act No. 13 of 1971 indicates that the proceedings contemplated therein which are of a summary nature are not at all in the nature of a suit and the question for adjudication of any right of the parties in such proceedings so as to bring in existence any decree, order or judgment as envisaged under the provisions of the Civil Procedure Code does not arise therein. Moreover, as observed by this Court in its decision in the case of Chuni Lal v. Ramesh Chandra, reported in 1992 (2) ARC 411, that the mere fact that an application under Section 30 for permission to deposit the arrears of rent has been allowed by the Munsif, cannot absolve the tenant from establishing before the Court where the suit for eviction is filed that the landlord has refused to accept the rent lawfully tendered. It was further observed in that decision that it stands well settled that the Court trying the suit for eviction cannot be precluded from enquiring about the validity of the deposits made under the proceedings contemplated under Section 30 of the U. P. Act 13 of 1972.
It was further observed in that decision that it stands well settled that the Court trying the suit for eviction cannot be precluded from enquiring about the validity of the deposits made under the proceedings contemplated under Section 30 of the U. P. Act 13 of 1972. Moreover, in the present case that I find is that the learned Munsif while disposing of the application of the defendant-petitioner made under Section 30 of the U. P. Act No. 13 of 1972 had not gone into the merits of his claim at all and had permitted him to deposit the rent in those proceedings at his own risk. (15) In the aforesaid situation the petitioner could not be deemed to be entitled to any benefit out of the deposits claimed by him to have been made in the proceedings under Section 30 of the U. P Act No 13 of 1972 and the deposits made by him there, could not relieve him of the liability which stood statutory fastened on him under the provisions contained in Order XV, Rule 5 (1) of the Civil Procedure Code requiring him to deposit the monthly amount due as explained in Explanation III of the said provision within a week from the date of its accrual. (16) The observations occurring in the decision of the learned single Judge in the case Gyanendra Lal (supra), on which strong reliance case has been placed by the learned Counsel for the petitioner indicating that from the time of the filing of a suit by the lessor against the lessee the defendant tenant is entitled to the benefit of the deposit made under Section 30 (1) of the U. P. Act No. 13 of 1972 not only during the period prior to the institution of the suit for ejectment but also during the subsequent period appear to be obiter. The decisions to the above effect cannot under the law, be deemed to be a binding precedent. It falls in the category of a decision passed sub- silentio, as observed in the decision of the apex Court in the case of State of U. P. v. Synthetic and Chemical Limited, reported in JT 1991 (3) SC 268.
The decisions to the above effect cannot under the law, be deemed to be a binding precedent. It falls in the category of a decision passed sub- silentio, as observed in the decision of the apex Court in the case of State of U. P. v. Synthetic and Chemical Limited, reported in JT 1991 (3) SC 268. It was observed by the Honble Supreme Court that a decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. Noticing the decision in the case of Lancester Motor Company (London) Ltd. v. Bremith Ltd. , reported in 1941 (1) KB 675, it was observed that the Court did not feel bound by earlier decision as it was rendered without any argument without reference to the crucial words of the rule and without any citation of the authority. The apex Court clearly observed that and declaration or conclusion preceded without any reason cannot be deemed to be declaration of law or authority of a general nature as precedent. " (Emphasis supplied) 47. Again in Sayeed Hasan Jafar alias Shakil Ahmad v. Turabal Haq and others, 1995 (2) ARC 341, a learned single Judge of this Court laid down as follows (paragraph No. 6 of the said ARC): "learned Counsel for the plaintiff-opposite parties has, on the other hand, relied upon the decision of the Supreme in the case of Smt. Satya Kumar Kamthan v. Noor Ahmad and others, 1992 (2) ARC 82. It was held in the said case that where a tenant had filed objection to the application for striking off the defence on the ground that there was no default in payment of monthly rent as provided under Rule 5 of Order XV and where the Court did not accept this contention and found that there was default in payment of the admitted rent and further that there was no representation by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons, the plaintiff was entitled to get the defence struck off.
It is noteworthy that in the case before the Supreme Court as well as the present case at hand, the tenant had in his objection only stated that he had deposited the entire and nothing was due, but he had not filed any application for extension of time or for condonation of delay. On those facts the Supreme Court had held that the defence had rightly been struck off as there was no application for extension of time under sub-rule (2) of Rule 5 of Order XV, CPC. The said case, therefore, fully supports the contention of the plaintiff- opposite parties. A learned single Judge of this Court in case of Basant Kumar Chauhan v. VII Addl. District Judge, Bareilly and others, 1994 (1) ARC 107, observed that the provisions contained in order XV, Rule 5 read with Explanation 2 clearly stipuls to that any amount deposited in any Court under Section 30 of the Act could be taken notice by the Court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit was concerned. The other deposits required to be made throughout the continuation of the suit are regular deposits of the monthly amount due within a week from the date of its accrual, as explained under Explanation 3 to Order XV, Rule 5 CPC. Admittedly, in the present case, as found by the Court below and as seen above, it is evident that the admitted rent was not regularly deposited by the 7th day of each month during the continuation of the suit. Besides, even after the defendant had put in appearance and had filed the written statement the deposits were not made in the Court where the suit was pending but for 19 months the same was being deposited in the Court of Munsif West, Allahabad under Section 30 of the Act. In the case of Mrs. S. Abel v. District Judge, Allahabad, 1980 ARC 261, it has been held that the word `court as used in Order XV, Rule 5, means "the Court before which the suit is pending and not other Court". No explanation has been given by the defendants as to why the said deposits were continued to be made under Section 30 of the Act and not before the Court where the suit was pending.
No explanation has been given by the defendants as to why the said deposits were continued to be made under Section 30 of the Act and not before the Court where the suit was pending. Further, no explanation has been given why the admitted rent was not being deposited regularly after the defendants had put in appearance, either under Section 30 of the Act or before the Court where the suit was pending. It is only before this Court that in the affidavit filed in support of the stay application it has been stated that the deposits were made under legal advice. No such plea had been taken before the trial Court. " (Emphasis supplied) 48. In view of the aforesaid decisions of this Court, it is evident that the deposit of the monthly rent/compensation by the petitioner (defendant) under Section 30 of the U. P. Act No. XIII of 1972 during the continuance of the said SCC Suit No. 26 of 1977 were illegal, and the same could not be said to be made in compliance with the provisions of Order XV, Rule 5 of the Code of Civil Procedure. Once the "first hearing" in the said SCC Suit No. 26 of 1977 arrived, it was no longer open to the petitioner to continue to deposit the monthly rent/compensation under Section 30 of the U. P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad. The said monthly deposits should have been made in the said SCC Suit No. 26 of 1977 before the respondent No. 2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5 (1) of the Code of Civil Procedure namely, head (B) above. 49. Even otherwise, as noted above, the deposit under Section 30 of the U. P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad was not regularly made. Instead, the petitioner deposited the rent of 3-4 months at one time after it became due. Thus, even assuming that such deposits made under Section 30 of the U. P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad could be considered, the same were not made every month regularly within a week from the date of accrual thereof as require under second part of Order XV, Rule 5 (1) of the Code of Civil Procedure.
Thus, the said deposits under Section 30 of the U. P. Act No. XIII of 1972 made in the Court of Munsif, Ghaziabad cannot be said to be made in the accordance with the provisions of Order XV, Rule 5 of the Code of the Civil Procedure. 50. Hence, the defence of the petitioner was rightly struck off by the respondent No. 2, and the said order was rightly upheld by the respondent No. 1. 51. The question which next arises is as to whether any representation was made by the petitioner as contemplated under sub-rule (2) of Order XV, Rule 5 of the Code of Civil Procedure so as to absolve the petitioner from the consequence of striking off of his defence. 52. As noted above, the respondent No. 1, inter alia, pointed out in the said judgment and order dated 13-1-1982 that the petitioner had not made any represented within 10 days of the expiry of the period of one week as required under sub-rule (2) of Order XV, Rule 5 of the Code of Civil Procedure. 53. Learned Counsel for the petitioner referred to an objection dated 10-3-1980 filed on behalf of the petitioner against the application under Order XV, Rule 5 of the Code of Civil Procedure filed on behalf of the respondent No. 3. A copy of the said objection dated 10-3-1980 has been filed as Annexure No. 1 to the supplementary affidavit sworn on 4-2-1982 filed in this writ petition. A perusal of the said objection dated 10-3-1980 shows that the petitioner merely asserted that he had deposited rent/compensation and he was not guilty of any default. No explained was given by the petitioner in the said objection dated 10-3-1980, inter alia as to why the petitioner continued to make deposit under Section 30 of the U. P. Act No. XIII of 1972, despite the institution of the said suit No. 26 of 1977, or as to why he was not depositing the rent/compensation regularly every month within a week of its accrual, or as to why, he deposited 3-4 months rent at one time after it become due. No explanation was given in the said objection dated 10-3-1980 for condonation of delay in making the deposit.
No explanation was given in the said objection dated 10-3-1980 for condonation of delay in making the deposit. Thus, the said objection dated 10-3-1980 did not disclose any reason whatsoever for not complying with the requirements of second part of Order XV, Rule 5 of the Code of Civil Procedure by the petitioner. 54. In Bimal Chand Jain v. Gopal Agarwal, AIR 1981 SC 1657 , their Lordships of the Supreme Court laid down as follows (paragraph No. 6 of the said AIR): "it seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine percent per annum and further, whether or not he admits any amount to be due to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit. "the Court may subject to the provision of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the Court, before making an order for striking off the defence to consider any representation made by the defendant in the 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 merit, 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 materials 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 materials already. In that event, can it be said that sub-rule (1) obliges the Court to strike off the defence. We must remember that an order under sub- rule (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.
In that event, can it be said that sub-rule (1) obliges the Court to strike off the defence. We must remember that an order under sub- rule (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 a 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-rule (2), the defence should or should not be struck off. The "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 L. J. 82 (supra ). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV. " 55. In view of this decision, the defendant has a right to bring on record materials to show that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. It is possible that such materials may be already on record. It is further laid down in the said decision that even if a representation as contemplated under sub-rule (2) of Order XV, Rule 5 of Code of Civil Procedure is not made by the defendant, still the Court has discretion 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. 56. In the present case, no material has been brought on the record by the petitioner (defendant) to show that there was any good reason for default in compliance with the requirements of the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure.
56. In the present case, no material has been brought on the record by the petitioner (defendant) to show that there was any good reason for default in compliance with the requirements of the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure. Only material which has been brought on the record of this writ petition is the aforesaid objection dated 10-3-1980 filed on behalf of the petitioner in the said suit No. 26 of 1977. 57. As discussed above, this objection did not disclose any good reason whatsoever as to why the petitioner (defendant) failed to comply with the requirements of the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure. 58. There was, thus, no fact and circumstances on the record which showed any good reason for default committed by the petitioner (defendant) in complying with the requirements of the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure. 59. In the circumstances, I am of the opinion that the defence of the petitioner was rightly struck off by the respondent No. 2, and same was rightly upheld by the respondent No. 1. In Smt. Satya Kumari Kamthan v. Noor Ahmad and others, 1992 (2) ARC 82 (Supreme Court), their lordships of the apex Court noticed the decision in Bimal Chand Jain case (supra) and then laid down as follows (paragraph No. 3 of the said ARC): ". . . . . . . . . . . . We may point out that in the case on hand when the appellant filed an application for striking off, the tenant filed a written statement objecting to the striking off on the ground that there was no default in payment of the monthly rent as provided under Rule 5 (1) of Order XV. The Courts below did not accept this contention and found as a fact that there was a default in payment of the admitted rent. The Courts below further held that though there was a default there is no "representation" by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons and that, therefore, the plaintiff was entitled to get the defence struck off.
The Courts below further held that though there was a default there is no "representation" by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons and that, therefore, the plaintiff was entitled to get the defence struck off. The word "representation" may cover a "representation" in answer to an application for striking off or a "representation" praying for an extention of time for making the deposit on sufficient grounds shown. The tenant in this case only made representation that he had deposited the correct money rent but he had not filed any application for extension of time. In the circumstances, therefore, the Courts below were right in holding that there was a default in payment of the monthly rent and since there was also no application for extension of time under sub-rule (2) of Rule 5 of Order XV, the defence was liable to be struck off. . . . . . " This decision of the apex Court is fully applicable to the present case. 60. In Civil Appeal No. 155 of 1978, Anandi Devi v. Om Prakash, decided on February 25, 1987, their lordships of the Supreme Court have laid down as follows: "in this appeal, the High Court has failed to exercise the jurisdiction vested in it in declining to interfere with the order of First Additional District Judge, Ballia without disclosing any reason. The learned Additional District Judge disallowed the prayer for eviction made by the appellant in her application under Section 20 (2) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) inspite of his having come to the conclusion that the deposit of arrears of rent, which, had fallen due from January 27, 1972 upto August 26, 1972, made by the respondent-defendant, was not a valid deposit under Section 30 (2) of the Act.
The learned Additional District Judge has failed to appreciate that the respondent having failed to comply with the requirements of Order XV, Rule 5 of the Code of Civil Procedure, 1908 by not making a deposit of arrears of rent together with interest and costs, the appellants application for striking off the defence ought to have been allowed and thereafter the suit for eviction should have been decreed under Section 20 (2) (a) of the Act. In this view, the judgment and order of the High Court as well as that of the learned District Judge cannot be sustained. We accordingly set aside those judgment, allow this appeal and grant a decree for eviction under Section 20 (2) (a) of the Act. The decree for arrears or rent passed by the learned Additional District Judge shall, however, stand. The respondent is given four months time to vacate and surrender the premises subject to his filing the usual undertaking in this Court within four weeks from today. No costs. " (Emphasis supplied) 61. This decision shows that in case of failure to comply with the requirements of Order XV, Rule 5 of the Code of Civil Procedure, the defence of defendant is liable to be struck off. 62. In view of the aforesaid discussion, I am of the opinion that this writ petition filed by the petitioner lacks merit and the same is liable to be dismissed. The writ petition is accordingly, dismissed. The interim order dated 4-2-1982 is discharged. However, in the facts and circumstances of the case, there will be no order as to costs. Petition dismissed. .