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Allahabad High Court · body

2008 DIGILAW 208 (ALL)

SINGHASAN RAI v. BHAGWAN DEI

2008-01-28

DILIP GUPTA

body2008
The petitioner who is the de fendant in SCC Suit No. 22 of 1999 that had been filed by the landlord for ejectment and recovery of arrears of rent has filed this peti tion for setting aside the order dated 3rd Feb ruary, 2005 by which his defence has been struck off under Order XV, Rule 5 of the Code of Civil Procedure (hereinafter referred to the cpc)- He also sought the quashing of the order dated 20th November, 2007 passed by the Revisional Court by which the Revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887 for setting aside the aforesaid order dated 3rd February, 2005 was dismissed. 2. The records indicate that during the pen dency of the Suit, an application was filed by the plaintiff- landlord for striking off the de fence of the defendant as the provisions of Order XV, Rule 5 CPC had not been complied with. The application filed by the landlord was allowed by the order dated 3rd February, 2005 as it was found that the defendant had not deposited the monthly rent due during the continuation of the Suit. 3. Learned counsel for the petitioner sub mitted that Rule 5 to Order XV CPC which was added in the State of Uttar Pradesh by U. P. Act No. 37 of 1972 ceases to have any force after the coming into force of The Code of Civil Procedure Amendment Act, 1999 (Act No. 46 of 1999) and The Code of Civil Proce dure (Amendment) Act, 2002 (Act No. 22 of 2002 ). He further submitted that in any view of the matter, he had made the deposits under Section 30 (1) of the U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the act) and, therefore, it cannot be said that he had not deposited the monthly rent due during the con tinuation of the Suit as the said deposit was always available to the landlord. In order to appreciate the contentions advanced by the learned counsel for the petitioner, it would be necessary to refer to the provisions of Order XV, Rule 5 CPC. In order to appreciate the contentions advanced by the learned counsel for the petitioner, it would be necessary to refer to the provisions of Order XV, Rule 5 CPC. Rule 5 was added to Order XV in State of U. P. by U. P. Act No. 37 of 1972 and is as follows:- "order XV Rule 5 CPc Striking off defence for failure to deposit admitted rent, etc.- (1) In any suit by a lessor for the eviction of a lessee after the determi nation of his lease and for the recovery from him of rent or compensation for use and oc cupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent 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 hear ing" 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 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, calcu lated at the admitted rate of rent for the ad mitted 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 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. 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 re spect of the building on lessors account. (2) Before making an order for striking Off defence, the Court may consider any repre sentation made by the defendant in that be half 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 plain tiff: 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 depos ited includes any sums claimed by the deposi tor to be deductible on any account, the Court may require the plaintiff to furnish the secu rity for such sum before he is allowed to with draw the same. " It is the contention of the learned counsel for the petitioner that in view of the provisions of Section 16 (1) of Amendment Act No. 22 of 2002 and Section 32 (1) of Amendment Act No. 46 of 1999, Rule 5 of Order XV CPC which was added by the State of U. P. by U. P. Act No. 37 of 1972 ceases to have any effect and in support of his contention he has placed reliance upon the decision of two -; Honble Judges of the Supreme Court in Ganpat Giri v. Second Additional District Judge, Ballia & Ors. , (1986) 1 SCC 615 : t (1986 All LJ 271) wherein Section 97 (1) of f The Code of Civil Procedure (Amendment) Act, 1976 (Act No. 104 of 1976) which came into effect from 1st February, 1977 came-up-for interpretation. According to the learned counsel for the petitioner, Section 16 (1) of Act No. 22 of 2002 and Section 32 (1) of the Act No. 46 of 1999 are identical to the provisions of Section 97 (1) of Act No. 104 of 1976 and, therefore, the decision rendered in Ganpat Giri (supra) would equally apply in the present case. 4. According to the learned counsel for the petitioner, Section 16 (1) of Act No. 22 of 2002 and Section 32 (1) of the Act No. 46 of 1999 are identical to the provisions of Section 97 (1) of Act No. 104 of 1976 and, therefore, the decision rendered in Ganpat Giri (supra) would equally apply in the present case. 4. In Ganpat Giri (supra), the Supreme Court had examined the effect of Section 97 (1) of Amending Act No. 104 of 1976 on any amendment made or any provision in serted in the CPC by a State Legislature or High Court prior to the commencement of the Amending Act. 5. Section 97 (1) of Amending Act No. 104 of 1976 which came into effect from 1st Feb ruary, 1977 reads as under:- "any amendment made, or any provision inserted in the principal Act by a State Legis lature or a High Court before the commence ment of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. " 6. The Supreme Court observed:-"there are three sub-sections in Section 97 of the Amending Act. A reading of section 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consist ing of sections and die First Schedule to the Code which contains orders and Rules. Sec tion 97 (1) of the Amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except in so far as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands re pealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i. e. , on February 1, 1977. The repealing provision in Section 97 (1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The repealing provision in Section 97 (1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The object of Section 97 of the Amending Act appears to be that on and after February 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal be fore us. " 7. It is in view of the aforesaid decision of the Supreme Court that learned counsel for the petitioner contended that Rule 5 to Order XV CPC which was added in the State of Uttar Pradesh prior to the subsequent Central Amendments ceases to be operative. 8. The contention advanced by the learned counsel for the petitioner cannot be accepted in view of the subsequent decision of the Su preme Court in Pr. Rishikesh & Anr. v. Salma Begum (Smt.), (1995) 4 SCC 718 : (1995 All LJ 1336 ). This decision of the Supreme Court which was rendered by three Honble Judges specifically deals with Rule 5 which was added to Order XV by U. P. Amendment by U. P. Act No. 37 of 1972. The Supreme Court repelled the contention that in view of the provisions of Section 97 (1) of the Central Amendment Act No. 104 of 1976, Rule 5 to Order XV CPC ceases to be operative. The relevant portion of the judgment is as follows:- "the contention of the learned counsel pro ceeded on the assertion that the Central Act is a Consolidation Act intended to repeal Act 5 of 1908 and reenact Act 104 of 1976 to be a complete code is misconceived. The title of the Act itself manifests the intention of Par liament that it is an "amending Act" to various provisions of the CPC by only 96 sections to the main Code. The title of the Act itself manifests the intention of Par liament that it is an "amending Act" to various provisions of the CPC by only 96 sections to the main Code. It is also true that Section 97 (1) of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State Legislature or a High Court before the commencement of the Central Act shall, except insofar as amend ment or provision is consistent with the pro visions of the principal Act as amended by the Central Act, stood repealed. The contention advanced by the learned counsel for the ap pellants is that all pre-existing amendments stood obliterated unless fresh amendment, by the State Legislature or a High Court, is made after 1-2-1977 reserved for consideration and received the assent of the President. In sup port thereof, they placed reliance on the ratio in Ganpat Gin case. It may be mentioned at once that Justice Venkatramiah (as he then was) who rendered the judgment in Ganpat Gin case, on behalf of a Bench of two Judges, himself referred the cases for consideration by a three-Judge Bench. In that case, some observations made would lend support to the contention of the appellant. It was observed thus: (SCC p. 618, para 5) (i) The object of Section 97 of the Amend ing Act appears to be that on an after 1-2-1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amend ing Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the deci sion of the Allahabad High Court which is now under appeal before us. Until such amendment is made the Code as amended by the Amend ing Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the deci sion of the Allahabad High Court which is now under appeal before us. (ii) Section 97 (1) of the Amending Act takes note of the several local amendments made by the State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i. e. on 1-2-1977. (iii) The repealing provision in Section 97 (1) is not confined in its operation to provisions of the Code including the Orders and Rules, in, the First Schedule which are actually amended by the Amending Act. The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State Legislature, equally the Central Act repealed the existing rule and re-enacted the rule so as to be self-operative and complete code consistent with the development of the law. Therefore, the Bench held that State Amendment since was not consistent with the Central Act, the State, Amendment was declared repugnant to the Central Act. Therefore, it became void un less it was re-enacted by the State Legisla ture, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but ob servations which we have noted above, gave rise to a construction advanced by the coun sel. The wide construction put up by the Bench with due respect does not appear to be sound. It is seen that Order 15 of the Central Act, as it stood before to the Amendment Act, consists of only Rules 1 to 4. The wide construction put up by the Bench with due respect does not appear to be sound. It is seen that Order 15 of the Central Act, as it stood before to the Amendment Act, consists of only Rules 1 to 4. Since the spe cial need arose in Uttar Pradesh to maintain equilibrium between the rights of the tenants of their fixity of tenures subject to compli ance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the Presi dent and became a statute. Three Explanations were made by U. P. Act 57 of 1976 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and not a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the State Act made no amendment to Order 15, Rule 2. Rule 5 as was preexisting was not dealt with in the Central Act. On the other hand, Section 35-B of the Code empowers the Court to strike down the defence if costs are not paid as di rected by the Court. Equally, Order 6, Rule 16 empowers the Court to strike down the plead ing on conditions mentioned in the said rule. Order 11, Rule 21 empowers the Court to, ; strike down the defence in case the party fails to comply with any order to answer interroga tories for discovery or inspection of the docu ments. The Code, thus, by itself envisages striking off the defence in the stated circum stances. Similar provision made by the State Legislature is also consistent with the policy and principles of Act 5 of 1908 as amended by the Central Act. In other words, there is no repugnancy in that behalf. The condition precedent to bring about re pugnancy should be that there must be an amendment made to the principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. The condition precedent to bring about re pugnancy should be that there must be an amendment made to the principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Cen tral Act in relation to the State of U. P. , they remain to be a valid law. We may clarify at once that if the Central law and the State law or a provision made by the High Court oc cupy the same field and operate in collision course, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for consideration and re ceives the assent of the President after the Central Act was made by Parliament i. e. 10-9-1976. " (Emphasis supplied) (Not found in certified copy. . . . . Ed.) 9. The Supreme Court, in the aforesaid de cision, had analysed the position with regard to Central Amendment Act No. 104 of 1976 and found that there was no inconsistency as Rule 5 in Order XV was not occupied by the Central Act. The same is the position with re gard to the subsequent Central Amendments by Act No. 46 of 1999 or Act No. 22 of 2002. 10. Thus, in view of the aforesaid decision of the Supreme Court in Rishikesh (supra), the contention advanced by the learned coun sel for the petitioner that Rule 5 to Order XV CPC that was added by State of U. P. by Amendment Act No. 37 of 1972 would cease to have effect after coming into force of the subsequent Central Amendments cannot be ac cented. 11. Learned counsel for the petitioner then contended that even otherwise the tenant was not required to make any deposits in the Suit during the continuation of the Suit as he was depositing the rent under Section 30 of the Act. 12. 11. Learned counsel for the petitioner then contended that even otherwise the tenant was not required to make any deposits in the Suit during the continuation of the Suit as he was depositing the rent under Section 30 of the Act. 12. The Supreme Court in the case of Atma Ram v. Shakuntala Rani (2005) 7 SCC 211 : ( AIR 2005 SC 3753 ) had the occasion to ex amine whether the tenant defaulted in payment of rent if he had not paid or tendered or de posited the rent in the manner required by law and whether the deposit of rent under some other Act could be construed to be a valid de posit. The tenant had sent a money-order re mitting the rent but the landlord refused to accept it and, therefore, the tenant deposited the rent for the period from 1st February, 1992 to 31st January, 1995 in January, 199j5 under the provisions of the Punjab Relief Indebted ness Act, 1934 (called the punjab Act ). The landlord, however, sent a notice dated 16th May, 1996 to the tenant to pay arrears of rent. The tenant on 20th July, 1996 deposited the rent for the period February, 1995 to 12th July, 1996 under Section 27 of the Delhi Rent Con trol Act, 1961 (called the "delhi Act ). The arrears of rent from 1st February, 1992 to 31st January, 1995 was not included since the ten ant had deposited the same under the Punjab Act. Section 27 of the Delhi Act provides that where the landlord does not accept any rent tendered by the tenant, the tenant may deposit such rent with the Rent Controller in the man ner provided for in that section. The landlord then filed an application for eviction of the ten ant under Section 14 (1) (a) of the Delhi Act. The Supreme Court after considering a num ber of its earlier decisions in Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243 : ( AIR 1996 SC 729 ) Jagat Prasad v. Distt. The landlord then filed an application for eviction of the ten ant under Section 14 (1) (a) of the Delhi Act. The Supreme Court after considering a num ber of its earlier decisions in Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243 : ( AIR 1996 SC 729 ) Jagat Prasad v. Distt. Judge, Kanpur 1995 Supp (1) SCC 318, M. Bhaskar v. J. Venkatarama Naidu (1996) 6 SCC 228 , Ram Bagas Taparia v. Ram Chandra Pal (1989) 1 SCC 257 : ( AIR 1989 SC 426 ) and E. Palanisamy v. Palanisamy (2003) 1 SCC 123 : ( AIR 2003 SC 153 ) observed:- "it will thus appear that this Court has con sistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the require ments of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision. The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giv ing the necessary particulars as required by sub-section (2) of Section 27. There is, there fore, a specific provision which provides the procedure to be followed in such a contin gency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Con troller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default. We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the Punjab Act was of no avail in view of the express provi sion of Section 27 of the Act. " 13. We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the Punjab Act was of no avail in view of the express provi sion of Section 27 of the Act. " 13. The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) em phasizes that if the tenant wishes to take ad vantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be depos ited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default. 14. The question whether the deposit made under Section 30 (1) of the Act after the date of service of summons of a civil suit for ar rears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Or der XV Rule 5 C. P. C. was referred to a Divi sion Bench of this Court. This question was answered by the Division Bench in Haider Abbas v. Additional District Judge & Ors. , 2006 ALR 552 and after taking into consideration the aforesaid decision of the Supreme Court in Atma Ram (supra) it was observed:- "it, therefore, follows that when the "en tire amount admitted by him to be due" is de posited at or before the first hearing of the suit, the amount deposited under Section 30 of the Act, if any, can be deducted but while depositing the "monthly amount due" through out the continuation of the suit, the amount deposited under Section 30 of the Act cannot be deducted. Needless to say before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such repre sentation is made within the period stipulated in Order XV Rule 5 CPC. 15. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" re quired to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC. 0 16. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be depos ited in the Court where the suit is filed other wise the Court may strike off the defence of the tenant since the deposits made by the ten ant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration. 17. Thus, in view of the aforesaid deci sions, it has to be held that the deposits made by the petitioner under Section 30 of the Act during the continuation of the Suit cannot be taken into consideration for the purpose of Order XV Rule 5 CPC. 18. Thus, none of the contentions advanced by the learned counsel for the petitioner have any force. The writ petition is, accordingly, dismissed. Petition dismissed. .