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2007 DIGILAW 348 (ALL)

SARLA DEVI v. RAVINDRA KUMAR

2007-02-14

RAKESH TIWARI

body2007
JUDGMENT Hon’ble Rakesh Tiwari, J.—The case is listed peremptorily today. 2. On 12.1.2007 when the case was taken up on the request of the Counsel for the respondents, the office was directed to list the matter in the next cause list peremptorily. Thereafter it was listed on 22.1.2007. On that date, the case was passed over on the request of the Counsel for the respondents and it was directed to be listed in the next cause as peremptorily. When the case is taken up today, the Counsel for the respondents is not present even in the revised list. 3. Heard learned Counsel for the petitioners and perused the record. 4. The petitioners have prayed for a writ of certiorari quashing the impugned orders dated 17.10.2006 and 20.9.2006 passed by the District Judge, Muzaffarnagar and the Civil Judge (Senior Division), Kairana, Muzaffarnagar respectively besides a writ of mandamus for striking off the defence of the respondent for non-payment of rent by him for four months, i.e., January 2005 to April 2005. 5. Respondent No. 1 is the tenant of the disputed shop owned by the petitioners. It is alleged that the respondent has not deposited rent for four months from January 2005 to April 2005, as such the petitioners sent a notice dated 24.4.2002 in this regard to the respondent followed by another notice dated 26.4.2002. The petitioners filed S.C.C. Suit No. 12 of 2002 on 23.7.2002 before the Judge Small Cause Court/Civil Judge (Senior Division), Kairana, District Muzaffarnagar against the respondent for having not paid the rent for the aforesaid period. 6. The respondent filed his written statement denying the plaint allegations on 22.10.2002 and also filed an application-dated 10.5.2005 (56-C) to allow him to deposit the rent of the aforesaid four months. 7. The petitioner filed objection dated 25.7.2006 to the application of the respondent dated 10.5.2005 to deposit the defaulted rent. The petitioners also filed an application (66-C) on 25.7.2006 under Order XV Rule 5 read with Section 151, C.P.C. for striking off the defence of the respondent who replied the same vide his objection dated 1.8.2006. 8. The Civil Judge (Senior Division), Kairana, District Muzaffarnagar disposed of the applications 56-C and 66-C simultaneously vide impugned order dated 20.9.2006 allowing the application of the respondent to deposit the defaulted rent and rejecting the application of the petitioners for striking off the defence. 9. 8. The Civil Judge (Senior Division), Kairana, District Muzaffarnagar disposed of the applications 56-C and 66-C simultaneously vide impugned order dated 20.9.2006 allowing the application of the respondent to deposit the defaulted rent and rejecting the application of the petitioners for striking off the defence. 9. The petitioners challenged the aforesaid order dated 20.9.2006 before the District Judge, Bijnor by filing a revision which too was dismissed vide impugned order dated 17.10.2006, hence this writ petition. 10. It is contended by the learned Counsel for the petitioners that the respondent-tenant had not deposited the arrears of rent continuously for four months during the pendency of the suit, which has to be deposited on or before the first date of hearing under Order XV Rule 5 (1) C.P.C. and thereafter is to be deposited continuously month to month regularly during the pendency of the case. 11. The Counsel for the petitioners further submits that according to Order XV, Rule 5(1), explanation 3 and Rule 2 of the Code of Civil Procedure the tenant-respondent had to deposit the rent of January, 2005 up to 7.1.2005 and in case of default representation could be made by him up to 17.1.2005. It is only then it could be considered by the trial Court but in the instant case not only the respondent defaulted to deposit the rent continuously for 4 months, he also made representation on 10.5.2005 which has been considered by the Court below. 12. He also submits that in his representation the respondent has only averred that he was busy in his daughter’s marriage but neither he mentioned the date of the marriage nor has given any bonafide reason that why he defaulted continuously for 4 months whereas he could get the benefit of this reason only for a month and not for 4 months continuously; that it was binding upon the respondent to pay rent month to month fallen without default and therefore which was admittedly not done by him hence, defence has rightly been struck off by the Court below. 13. In support of above contentions, the Counsel for the petitioners has placed reliance upon the following rulings. 1. Atma Ram v. District Judge, Dehradun and others, 1999(1) JCLR 736 (All); 2. Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad and others, 2003(1) JCLR 767 (All); 3. Devendra Kumar Jain v. Ram Prakash, 2004 (2) JCLR 688 (All); 4. 13. In support of above contentions, the Counsel for the petitioners has placed reliance upon the following rulings. 1. Atma Ram v. District Judge, Dehradun and others, 1999(1) JCLR 736 (All); 2. Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad and others, 2003(1) JCLR 767 (All); 3. Devendra Kumar Jain v. Ram Prakash, 2004 (2) JCLR 688 (All); 4. Sri Ram Agarwal v. Smt. Sheela Devi, 2005(1) JCLR 146 (All); 5. Kailash Shukla v. Additional District Judge, Deoria and others, 2004(55) ALR-305; 6. Jai Pal Gupta v. Kali Charan and others, 2006(1) JCLR 107 (All); and 7. Inder Datt Sharma v. 1st Additional District Judge, Firozabad and another, 2006(6) ALJ 498. 14. In paragraphs 4 and 5 of the counter-affidavit it has been stated that the respondent has always paid the rent of the shop in question and the Court below has rightly passed the order for depositing the delayed rent from January to April, 2005 with 9% interest and cost; that the application of the petitioners has rightly been rejected by the Court below, therefore, the writ petition is liable to be dismissed. 15. In reply the petitioners have averred that the direction by the Court below to the respondent to deposit the delayed rent from January to April, 2005 with an interest of 9% and cost is not proper in the eye of law and that after the commencement of the litigation between the parties the respondents was under statutory liability for depositing the rent of the shop in dispute continuously month to month. 16. A Division Bench of this Court in case of Haider Abbas v. Additional District Judge and others, 2006(1) ARC 341 answered the question referred to it as to whether deposit under Section 30(1) after the date of service of summons of the suit can be taken into consideration for computing the deposit for the purposes of Order XV, Rule 5 and held that while depositing the amount at or before the first date of hearing of the suit, tenant can deduct the amount deposited under Section 30, but the deposit of monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 cannot be deducted. 17. 17. In the cases of Atma Ram and Jai Pal Gupta (supra) it has been held that the Court should see the bonafide need of the tenant. 18. In the cases of Ram Kumar Singh, Devendra Kumar Jain, Ram Agarwal, Inder Datt Sharma and Kailash Shukla (supra) the Court has held that it is obligatory upon the tenant to deposit the monthly rent due upon him continuously during the pendency of the suit and further that neither the monthly rent deposited regularly nor any representation for the condonation of default made within time so the defence should be struck off. 19. This .Court in similar circumstances in the case of Kailash Shukla (supra), has held that in such a situation the explanation for non-deposit of the rent was neither proper nor valid and the defence was rightly struck off. The amount of arrears of rent has to be deposited under Order XV Rule 5(1), C.P.C. on or before the first date of hearing of the suit and monthly deposit of rent thereafter is to be made throughout the continuance of the suit in the Court where the suit was filed for ejectment and recovery of arrears of rent and for compensation for use and occupation. Thus, it is obligatory and mandatory upon the tenant to deposit these arrears of rent on or before the first date of hearing in the suit and to continue to deposit the same. The respondent having failed to comply with mandatory provisions of Order XV Rule 5(1), C.P.C. could not have been granted any relief by the Court below by the order impugned in the writ petition. 20. For the reasons stated above, the writ petition succeeds and is allowed. The interim order, if any is vacated. No order as to costs. ————