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2008 DIGILAW 1489 (PNJ)

Anshul Jatana v. Iqbal Chand

2008-08-29

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The revision is directed against the order passed by the learned Civil Judge (Junior Division), Panchkula allowing an application moved by the respondents-owners claiming admitted rent under Order 15 Rule 5 of the Code of Civil Procedure. 2. The plaintiffs-respondents filed a suit for possession and recovery of the rent. In the said petition an application under Order 15 Rule 5 CPC was moved by the respondents-plaintiffs claiming that the petitioner herein should be directed to pay the admitted rent and continue paying the admitted rent every month during the pendency of the suit together with interest. 3. The learned trial Court allowed the application and directed the petitioner herein to pay a sum of Rs. 4,76,664/- which is due towards the petitioner as rent. The interest at the rate of 9% has also been granted. It has further ordered that the petitioner shall continue to pay rent at the rate of (sic) per month during the pendency of the suit. Costs of Rs. 1,000/- has also been imposed for the delay. 4. Mr. Arun Palli, learned senior counsel appearing for the petitioner has challenged the impugned order on the around that the order passed is not in consonance with the provisions of Order 15 Rule 5 CPC as it is only the admitted rent which can be ordered to be paid and not the rent which was disputed. The contention of learned senior counsel for the petitioner is that by way of lease deed dated 30.5.2001, the premises in dispute were rented out to the petitioner on a monthly rent of Rs. 36,000/-. It is further the case of the petitioner that though as per the lease deed, parties have agreed that there would be increase of 7% every year and the amount to be paid in respect of every year was also mentioned in the lease deed. However, the said stipulation was not acted upon by the parties and the petitioner continued to pay rent at the rate of Rs. 36,000/- which was accepted by the owner of the premises and thus for all purposes, the rent settled between the parties is to be taken as Rs. 36,000/-. 5. However, the said stipulation was not acted upon by the parties and the petitioner continued to pay rent at the rate of Rs. 36,000/- which was accepted by the owner of the premises and thus for all purposes, the rent settled between the parties is to be taken as Rs. 36,000/-. 5. It is also contention oh learned senior counsel for the petitioner that in any case for the purposes of Order 15 Rule 5 CPC, the Court has to take into consideration the admitted tent by the tenant and not the agreed rent which may have been mentioned in the lease deed. In support of this contention, learned senior counsel for the petitioner has placed reliance on the judgment of this Court in the case of Govind Singh and others v. M/s Mynah International Limited, 2006(1) RCR(Rent) 216 : 2006(2) RCR(Civil) 9 (P&H). Reference was made to Paras 9 and 10 of the said judgment which read as under:- "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 rent 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 rate of rent. The petitioners want to say that the monthly amount due means the amount due every month at the agreed rate oh rent, which has been agreed in the alleged 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 CPC 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 as 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 or Rs. 70/- per sq. feet of the super area of 1660 sq. feet. Thus, in my opinion the trial Court has not committed any jurisdictional error or has failed to exercise its jurisdiction while declining to strike of 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." 6. The learned senior counsel for the petitioner thus contends that the Explanation 3(2) in Order 15 Rule 5 CPC has been interpreted by this Court to mean that it is to be the admitted rent and not the agreed rent which may have been agreed in the lease deed executed between the parties. 7. I find no force in the contention raised by learned counsel for the petitioner. In the case of Govind Singh and others v. M/s Mynah International Limited (supra), the Court has used the word `alleged lease deed, thus the area for which lease deed was executed was in dispute. 7. I find no force in the contention raised by learned counsel for the petitioner. In the case of Govind Singh and others v. M/s Mynah International Limited (supra), the Court has used the word `alleged lease deed, thus the area for which lease deed was executed was in dispute. The reading of the judgment of this Court shows that it was ordered that the monthly rent as fixed in the lease deed is liable to be paid and it was not for the Court under Order 15 Rule 5 CPC to consider whether additional area was in possession of the tenant so as to adjudicate as to what rent would be payable. 8. In the present case, it may be noticed that the lease deed is admitted and rate of rent is also admitted. The only contention is that as the clause for escalation was not acted upon, therefore, admitted rate of rent has to be taken at Rs. 36,000/- p.m only which stands paid and there are no arrears. 9. This plea of the senior counsel for the petitioner also cannot be accepted. The lease deed does mention the agreed rate of rent and Order 15 Rule 5 talks of admitted rent, it cannot be said that the admitted rent would be different from the one agreed to between the parties, merely because less amount is paid out of the rent settled between the parties. It is not in dispute that the rent calculated by the owners with 7% increase is the one claimed by them and there is no dispute with regard to the said calculations. 10. However, it has to be held that the admitted rent payable can only be said to be the rent payable in law. It would be a matter of dispute whether under Order 15 Rule 5 CPC, the rent due beyond period of limitation can be claimed or not, thus the respondents were not entitled to rent beyond period of limitation which is three years. 11. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the respondents states that plaintiff would not claim the rent under Order 15 Rule 5 CPC beyond a period of three years preceding the date of filing of the petition. 12. It has to be decided by the trial Court in the main suit. 11. Mr. M.L. Sarin, learned senior counsel appearing on behalf of the respondents states that plaintiff would not claim the rent under Order 15 Rule 5 CPC beyond a period of three years preceding the date of filing of the petition. 12. It has to be decided by the trial Court in the main suit. Consequently, this revision petition is disposed of with a direction that the owners- respondents would be entitled to recover rent due from the tenant as per order passed by learned trial Court except for the rent for the period preceding three years from the date of filing of petition. However, the petitioner- lessee shall continue to pay future rent, as determined. 13. However, nothing stated above shall be treated to be expression on the rate of rent which is yet to be determined by the Court after the parties are allowed to lead their evidence. The observations made above are only with respect to determination of rent under Order 15 Rule 5 CPC. In addition, respondent-plaintiff shall also be liable to pay interest and cost as determined. 14. The petitioner may deposit the rent determined in terms of order passed by this Court, along with interest and costs, within one month from today.