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Allahabad High Court · body

2008 DIGILAW 891 (ALL)

PARVEZ v. STATE OF U P

2008-04-21

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THE records of the writ petition indicate that the landlord had instituted three SCC Suits for ejectment and recovery of arrears of rent in respect of three shops being SCC Suit No. 2 of 2002, SCC Suit No. 3 of 2002 and SCC Suit No. 4 of 2002. In these three suits the plaintiff-landlord filed three separate applications under Order XV, Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "c. P. C) with a prayer that the defence may be struck off as the defendant had not complied with the requirements of Order XV, Rule 5, C. P. C. Objections were filed by the defendant and ultimately the Judge, Small Cause Courts allowed the applications filed under Order XV, Rule 5, C. P. C. observing that the defendant had not deposited the monthly amount due within a week from its accrual each month during the continuation of the suit. The Revisions filed by the defendant for setting aside these orders was dismissed. ( 2 ) A close examination of the petition shows that the petitioner has mixed up the orders and the applications in the three suits as in this petition he has annexed the plaint of SCC Suit No. 2 of 2002, the order dated 5th September, 2007 passed by the Judge, Small Cause Courts in SCC Suit No. 4 of 2002 by which the application filed by the plaintiff under Order XV, Rule 5, C. P. C. was allowed and the judgment and order dated 18th January, 2008 (wrongly mentioned as 18th December, 2008 in the certified copy) passed in Revision No. 9 of 2007 arising out of SCC Suit No. 3 of 2002. Thus, there is complete confusion in the writ petition as the plaint of one suit has been filed, the order of the Judge, Small Cause Courts in another suit has been filed and the quashing of the order of the Revisional Court has been sought which arises out of the third Suit. The petition indicates that the petitioner has sought the quashing of the Revisional order which is in respect of SCC Suit No. 3 of 2002 but the order of the Judge, Small Cause Court in SCC Suit No. 4 of 2002 has also been sought. The petition, therefore, deserves to be dismissed on this ground alone. The petition indicates that the petitioner has sought the quashing of the Revisional order which is in respect of SCC Suit No. 3 of 2002 but the order of the Judge, Small Cause Court in SCC Suit No. 4 of 2002 has also been sought. The petition, therefore, deserves to be dismissed on this ground alone. ( 3 ) LEARNED Counsel for the petitioner, however, urged that the Courts below committed an illegality in allowing the application filed under Order XV, Rule 5, C. P. C. and that they have wrongly not taken into consideration the amount of Rs. 15,000/- which had been paid by the tenant as "pagdi" at the time of construction of the aforesaid shops which amount was required to be adjusted towards the monthly amount which the defendant was required to deposit during the continuation of the suit. ( 4 ) IN order to appreciate the controversy involved in this petition it would be necessary to place the relevant provisions of section 30 of the Act as also the provisions of Order XV, Rule 5, C. P. C. as applicable to the State of U. P. The same are as follows: "section 30. Deposit of rent in Court in certain circumstances.- (1) If any person claiming to be a tenant of a building tenders any amount as rent in re spect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. (2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent Court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building. (3) The deposit referred to in sub-section (1), or sub-section (2), shall be made in the Court of the Munsif having jurisdiction. (3) The deposit referred to in sub-section (1), or sub-section (2), shall be made in the Court of the Munsif having jurisdiction. (4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the Court in that behalf. (5) On a deposit being made under sub-section (2), the Court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent Court or by a settlement between the parties, and the same shall be payable to such person. (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2 ). Order XV Rule 5, C. P. C. 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 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 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 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 dates mentioned. 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 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, 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 respect of the building on lessors account. (2) Before making an order for striking off defence, the Court may 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 account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same. " ( 5 ) ON a careful analysis of the provisions of Order XV, Rule 5, C. P. C. it is seen that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. " ( 5 ) ON a careful analysis of the provisions of Order XV, Rule 5, C. P. C. it is seen that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit. ( 6 ) IT is, therefore, clear that Order XV, Rule 5, C. P. C. is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made whether or not he admits any amount to be due. ( 7 ) THE Supreme Court in the case of Atma Ram v. Shakuntala Rani, 2005 7 SCC 211 had the occasion to examine whether the tenant defaulted in payment of rent if he had not paid or tendered or deposited 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 deposit. The tenant had sent a money-order remitting 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, 1995 under the provisions of the Punjab Relief Indebtedness 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 Control Act, 1961 (called the "delhi 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 Control Act, 1961 (called the "delhi Act ). The arrears of rent from 1st February, 1992 to 31st January, 1995 was not included since the tenant 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 manner provided for in that section. The landlord then filed an application for eviction of the tenant under section 14 (1) (a) of the Delhi Act. The Supreme Court after considering a number of its earlier decisions in Kuldeep Singh v. Ganpat Lal, 1996 1 SCC 243 Jagat Prasad v. Distt. Judge, Kanpur, 1995 Supp1 SCC 318 m. Bhaskar v. J. Venkatarama Naidu, 1996 6 SCC 228 , ram Bagas Taparia v. Ram Chandra Pa!, (1989) 1 SCC 257 =1989 SCFBRC 217. and E. Palanisamy v. Palanisamy,2002 (49) ALR 759 (SC ). observed: "it will thus appear that this Court has consistently 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 requirements 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 giving the necessary particulars as required by sub-section (2) of section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. 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 Controller 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 provision of section 27 of the Act. " ( 8 ) THE aforesaid decision of the Supreme Court in the case of Atma Ram emphasizes that if the tenant wishes to take advantage 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 deposited 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. ( 9 ) A Division Bench of this Court in Haider Abbas v. Additional District judge (Court No. 3) Allahabad and others,2006 (62) ALR 552. ( 9 ) A Division Bench of this Court in Haider Abbas v. Additional District judge (Court No. 3) Allahabad and others,2006 (62) ALR 552. while considering the provisions of Order XV, Rule 5, C. P. C. and the aforesaid decision of the Supreme Court in Atma Ram observed as follows: "the aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes that if the tenant wishes to take advantage 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 deposited 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. 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, C. P. C. 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" required 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, C. P. C. It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration. " ( 10 ) THE defendant was required to deposit the "monthly amount due" throughout the continuation of the suit as contemplated under the second part of Order XV, Rule 5, C. P. C. because under the second part of Order XV, Rule 5, C. P. C. the deposit has to be made whether the defendant admits or does not admit any amount to be due. ( 11 ) THIS is what was observed by this Court in Smt. Kailash Devi v. IVth Addl. District judge, Allahabad and others,1995 (25) ALR 7. wherein it was observed: "the provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh consists of two parts. In the first part the tenant is liable to deposit the entire arrears of rent admittedly due on the date of first hearing alongwith 9% interest thereon. The second part lays down that the deposit has to be made of monthly amount due within a week from the date of accrual through out the continuation of the suit whether or not the defendant admits the amount due. In M/s. Umesh Industries and another v. IXth Addl. District judge, Ghaziabad and another2, it was held that the tenant was liable to make deposit of monthly rent in time. He cannot take the plea that he was not liable to deposit the amount as the land-k d/pbmtii owed money to him. The legislative intent was clear that the monthly amount has to be deposited month to month whether or not the defendant admit any amount to be due. He may not be liable to pay on the dateof fist hearing, but as regards monthly rent, he has to deposit or not within the time prescribed, under Order XV, Rule 5 or the C. P. C. " ( 12 ) THIS Court in Bal Krishna v. Rama Nand Dixit and another3, also observed: "in the instant case, obligation with regard to the deposit of the entire. . nount admitted to be due together with interest thereon at the rate of. tine per centum, at or before the first hearing of the suit, does not arise Inasiruch as the applicant has not admitted any amount to be due. Tfwrf-fore, the only question which is required to be considered is whether v2. 3. 2001 (4) ALR 542. . nount admitted to be due together with interest thereon at the rate of. tine per centum, at or before the first hearing of the suit, does not arise Inasiruch as the applicant has not admitted any amount to be due. Tfwrf-fore, the only question which is required to be considered is whether v2. 3. 2001 (4) ALR 542. the applicant has incurred penalty of having his defence struck off for noncompliance of the mandate with regard to deposit of the monthly amount due within a week from the date of its accrual regularly during the continuation of the suit. The provisions of sub-rule (1) of Rule 5 of Order XV of the Code, unmistakably, enjoin upon the defendant in a suit by a lessor for his eviction to regularly deposit the monthly amount due within a week from the date ofits accrual throughout continuation of the suit. In the event of default, the Court may, subject to the provisions of sub-rule (2) of Rule 5 of Order XV of the Code, strike off his defence. The opinion expressed by the learned Single Judge in the case of Anil Kumar Mahajan v. Ashok Kumar and another, 2003 (1) ARC 214 . is not in consonance with the provisions of Rule 5 of Order XV of the Code inasmuch as the Explanation (3) to sub-rule (1) of Rule 5 of Order XV of the Code clearly forbids any deduction from "the monthly amount due", except the taxes, if any, paid to a local authority, in respect of the building on lessors account. It is rather per incuriam, and cannot lend support to the contention of the learned Counsel for the applicant. " ( 13 ) IN Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad and others, this Court also observed : "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 provisions shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Therefore, this provisions 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 deposit is required to be made throughout the continuance of the suit. Thus, the petitioner, in any case, did not make any monthly deposit after May, 1993 as per the requirements of Order XV, Rule 5 of the Code of Civil Procedure. Hence, the defence of the petitioner was rightly struck off by the said order dated 13. 7. 2001," ( 14 ) THIS decision was subsequently followed by this Court in Kailash Shukla v. Additional District Judge, and others2004 (55) ALR 305. ( 15 ) IN the present case the second part of Order XV, Rule 5, C. P. C. was not complied with by the defendant. ( 16 ) THE contention of the learned Counsel for the petitioner is that the amount deposited as "pagdi" at the time of construction of the shops should have been taken into consideration for the purposes of the amount required to be deposited under the second part of Order XV, Rule 5, C. P. C. The Courts below have rejected this contention on two grounds. They have found that the alleged agreement by the defendant could not be proved and secondly even otherwise, the agreement does not mention that this amount of "pagdi" will be adjusted towards the monthly rent to be paid by the tenant. ( 17 ) THERE is no infirmity in this finding and indeed learned Counsel for the petitioner has not been able to even prove that he had paid Rs. 15,000/- to the landlord at the time of construction of the shops. Such amount could also not have been adjusted towards the monthly amount required to be deposited during the continuation of the suit. 15,000/- to the landlord at the time of construction of the shops. Such amount could also not have been adjusted towards the monthly amount required to be deposited during the continuation of the suit. ( 18 ) AS noticed hereinabove, the tenant has to comply with the requirements of Order XV, Rule 5, C. P. C. and make the deposits strictly in accordance with the procedure contained therein. The mandatory requirements of Order XV, Rule 5, C. P. C. were not complied with by the tenant and, therefore, the application filed by the plaintiffs under Order XV, Rule 5, C. P. C. was liable to be allowed. ( 19 ) THERE is, therefore, no infirmity in the orders impugned in the present petition. The writ petition is, accordingly, dismissed. Petition Dismissed. .