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2006 DIGILAW 162 (PNJ)

Govind Singh v. Mynah International Ltd.

2006-01-19

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. The plaintiffs-petitioners have filed this petition under Article 227 of the Constitution of India for setting aside the order dated November 22, 2005 passed by the Additional Civil Judge (Sr. Division), Gurgaon, refusing to strike off the defence of the defendant under Order 15 Rule 5 C.P.C. 2. The case of the petitioners is that vide a registered conveyance deed dated November 4, 2004, they have purchased two shops bearing Nos. SF-36 and SF-37 situated on the second floor of centrally air conditioned shopping mall known as "The Metropolitan", Gurgaon-Mehrauli Road, Gurgaon. According to them, these two shops are having super area measuring 1660 sq. feet. The said two shops were leased out to the defendant-respondent by a registered lease deed dated July 13, 2004. It is their case that according to the lease deed, the monthly rent of the aforesaid two shops was agreed at the rate of Rs. 70/- per sq. feet of the super area of 1600 sq. feet, which works out at Rs. 1,16,200/- per month. It has been further stated that the defendant failed to pay the outstanding rent for the months of February, March and April, 2005. For that, the petitioners served a legal notice on him on May 4, 2005 for making the outstanding payment. When the defendant did not pay the outstanding amount of rent, the petitioners terminated the lease of the defendant vide notice dated June 10, 2005, and consequently filed the suit for possession by way of ejectment and for recovery of the outstanding lease amount against the respondent on July 29, 2005. 3. After receiving the notice, the defendant-respondent filed the written statement disputing the liability to pay Rs. 1,16,200/- as monthly rent. It has been stated that the petitioners had rented out two shops, which consist of an area of 1009 sq. feet only, therefore, he is liable to pay the monthly rent to the petitioners at the rate of Rs. 70/- per sq. feet, which comes to Rs. 70,630/- per month. The defendant has categorically disputed his liability to pay the rent at the rate of Rs. 70/- per sq. feet for the super area of 1660 sq. feet as no possession of that much area has been given to him at the time of leasing out the shops to him. feet, which comes to Rs. 70,630/- per month. The defendant has categorically disputed his liability to pay the rent at the rate of Rs. 70/- per sq. feet for the super area of 1660 sq. feet as no possession of that much area has been given to him at the time of leasing out the shops to him. It has been stated that the plaintiffs-petitioners have deliberately neither filed the site plan of the demised premises alongwith the plaint nor have given the measurement of the length and width of the demised premises. It has been further stated in the written statement that the petitioners want to recover the monthly rent from the defendant of the area which is not in their possession and which was never delivered to the defendant. It has been alleged that the open space has been rented out to some other persons. Thus, it has been alleged that the plaintiffs-petitioners mala fidely allowed those persons to occupy and encroach upon the open space and they are charging huge rent from them and now for the said area, the plaintiffs also want to recover the rent from the respondent. Thus, in the written statement, the defendant-respondent only admit his liability to pay Rs. 70,630/- as monthly rent of the demised premises. 4. After framing the issues, on September 21, 2005, the petitioners filed an application under Order 15 Rule 5 C.P.C. for striking out the defence of the defendant on the ground that the defendant has failed to deposit the entire admitted amount of rent alongwith interest as envisaged under the aforesaid provisions. In that application, the defendant-respondent filed reply-cum-representation on October 29, 2005. 5. After hearing the arguments of the learned Counsel for both the parties, the trial Court vide impugned order refused to strike off the defence of the defendant as he had paid the admitted rent at the rate of Rs. 70,630/- per moth. The said application was disposed of with a direction to the defendant to deposit the monthly admitted rent. Admittedly, the amount of rent at the rate of Rs. 70,630/- per month had been deposited/paid. 6. The petitioners have challenged the aforesaid order. Counsel for the petitioners submitted that the learned Additional Civil Judge (Sr. Division), Gurgaon has failed to exercise his jurisdiction while refusing to strike off the defence of the defendant-respondent. Admittedly, the amount of rent at the rate of Rs. 70,630/- per month had been deposited/paid. 6. The petitioners have challenged the aforesaid order. Counsel for the petitioners submitted that the learned Additional Civil Judge (Sr. Division), Gurgaon has failed to exercise his jurisdiction while refusing to strike off the defence of the defendant-respondent. The contention of the petitioners is that in this case the admitted amount of monthly rent of the demised premises should have taken as Rs. 1,16,200/- and not Rs. 70,630/- because in the lease deed, which is a registered document, it was agreed that the defendant would be liable to pay the monthly rent at the rate of Rs. 70/- per sq. feet of the super area of 1660 sq. feet, which comes to Rs. 1,16,200/-. The learned Counsel submitted that the provisions of Order 15 Rule 5 C.P.C. consist of two parts. The first part cast an obligation upon the lessee to make payment of the entire amount admitted by him to be due together with interest on the first date of hearing; and the second pan envisages a situation where the defendant may or may not admit any amount to be due but nonetheless an obligation is cast upon him to pay throughout the continuation of the suit such monthly amount which is due within a week from the date of its accrual, and in case he does not comply with the said mandatory requirements, his defence is liable to be struck off. The learned Counsel submitted that in this case the monthly amount due should have been taken as Rs. 1,16,200/- i.e. agreed rent between the parties in the lease deed. Since in this case the defendant-respondent has only deposited or paid the monthly rent at the rate of Rs. 70,630/-, therefore, it should be taken that he has defaulted in making the payment due to him. Thus, the learned trial Court should have struck off his defence. In support of his contention, learned Counsel for the petitioners relied upon a decision of the Hon ble Apex Court in Anand Devi v. Om Prakash, 1987 (Supp) Supreme Court Cases 527 and decisions of this Court in Gurjit Singh Gill v. Major Paramjit Singh Gothra, 2004(3) P.L.R. 474 and Pritam Chand and Anr. v. Manga Ram and Ors. 2000(2) Revenue Law Reporter 355. 7. v. Manga Ram and Ors. 2000(2) Revenue Law Reporter 355. 7. After hearing the counsel for the petitioners and going through the impugned order, the written statement and other documents annexed with the writ petition. I do not find any merit in this petition. Striking off the defence is in the nature of penalty. This power should not be exercised by the Court mechanically unless a strong case of disobedience is made out. Order 15 Rule 5 C.P.C. provides the power to the Court to strike off the defence in certain circumstances. 8. Order 15 Rule 5 C.P.C. as incorporated by the High Court of Punjab and Haryana vide notification dated 13th May, 1991 for the States of Punjab, Haryana and Union Territory, Chandigarh, reads as under:- (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine percent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may subject to the provisions of Sub-rule(2) strike off his defence. Explanation 1.- The expression "first hearing" means the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned in the last of the dates mentioned. Explanation 2.- The expression entire amount admitted by him to be due means the entire gross amount whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears, after making no other deduction except the taxes, if any paid to a local authority in respect of the building on lessors account and the amount, if any, deposited in any Court. Explanation 3.- 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 any order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within ten 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 account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same. 9. From the perusal of the above Order, it is clear that in any suit filed by the lessor for the eviction of a lessee after the determination of his lease and for recovery of the lease amount from the lessee, it shall be the duty of the defendant to deposit the entire amount of rent admitted by him to be due together with interest on or before the first hearing of the suit. A further duty has been cast that he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may, subject to the provisions of Sub-rule (2) strike off his defence. Explanation 2 provides that the expression "entire amount admitted, by him to be due" means the entire gross amount whether as rent or compensation for use and occupation, calculated at the admitted rate of interest for 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. Explanation 3 provides that 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. 10. Explanation 3, in my opinion, has categorically explained that monthly amount due means the amount due every month at the admitted of rent. The petitioners, want to say that the monthly amount due means the amount due every month at the agreed rate of rent, which has been agreed in the alleged lease deed. In this case, the defendant in his written statement as well as in his reply-cum-representation to the application filed by the petitioners under Order 15 Rule 5 C.P.C. has categorically taken the stand that he is only liable to pay the monthly rent to the petitioners at the rate of Rs. 70/- per sq. feet, which comes to Rs. 70,630/- per month. The said amount is admitted monthly rent as per 3rd explanation. Undisputedly, the said amount had been deposited/paid. The defendant has categorically disputed his liability to pay Rs. 1,16,200/- as monthly rent at the rate of Rs. 70/- per sq. feet of the super area of 1660 sq. feet. Thus, in my opinion, the trial Court has not committed any jurisdiction error or has failed to exercise its jurisdiction while declining to strike off the defence of the defendant. None of the authorities cited by the counsel for the petitioners are applicable to the facts of the present case as in none of them, no such question has been answered as involved in the present petition. 11. In the last, counsel for the petitioners submitted that the defendant while depositing or paying the admitted rent at the rate of Rs. 707- per sq. feet has also deducted the amount on account of Tax Deducted at Source. Counsel submits that the defendant can only deduct the amount of taxes, if any, paid to the local authorities. Counsel further submits that the defendant cannot deduct the amount on account of Tax Deducted at Source on the ground that he has not paid taxes to the local authorities. 12. Counsel submits that the defendant can only deduct the amount of taxes, if any, paid to the local authorities. Counsel further submits that the defendant cannot deduct the amount on account of Tax Deducted at Source on the ground that he has not paid taxes to the local authorities. 12. I do not find any force in the aforesaid contention of the counsel for the petitioners as the tenant or the lessee is under statutory obligation under Section 194-I of the Income Tax Act, 1961 to deduct the amount of Tax Deducted at Source on the rent/lease amount, if the amount of rent/lease is beyond Rs. 20,000/- per annum. 13. In view of the above, there is no merit in the petition. Dismissed.