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Allahabad High Court · body

2010 DIGILAW 3249 (ALL)

Ganga Devi v. Sampat Prasad

2010-10-21

RAKESH TIWARI

body2010
JUDGMENT: Rakesh Tiwari,J. Heard learned counsel for the parties and perused the record. The petitioner claims that Sri Faqir Prasad, the real owner of the house in dispute had taken an advance deposit of rent of Rs.50,000/- from the husband of the petitioner and issued the receipt of payment written and signed in his own writing on three revenue stamps. The receipt towards advance and payment of rent is appended as Annexure No.1 to the writ petition. In this regard an agreement dated 9.2.1992 was prepared but said not to have been signed by the petitioner. 2. The contention of the learned counsel for the petitioner is that Faqir Prasad landlord started pressurising the tenant for enhancement of rent upto more than four times and also tried to evict him from the accommodation in dispute. This compelled the petitioner to file a Civil Suit, being O.S. No.78 of 2002 in the Court of Civil Judge ( J.D.), Bareilly, praying for a decree of permanent injunction restraining the landlord from forcibly evicting him from the accommodation in dispute except in accordance with law. Interim relief was granted to the petitioner in the said suit. 3. It is submitted that thereafter the landlord Faqir Prasad and his wife Smt. Noma Devi as well as Sampat Prasad and the petitioner with her husband Ram Pal mutually agreed that the advance money of Rs. 50,000/- deposited on 6.1.2002 with Faqir Prasad would continued to be deposited in the Bank and from its interest the monthly rent w.e.f. January 2002 would be adjusted and the remaining amount of interest would be returned to the petitioner and her husband. In this view of the matter, no future liability to pay the rent remained by the petitioner. However, the plaintiff respondents filed their written statement in that suit inter-alia stating that they will not evict the petitioner except in accordance with law. The suit was then dismissed in default by the court as having become infructuous. 4. In the meantime, plaintiff/respondents filed the suit S.C.C No.35 of 2002 for arrears of rent and indictments in the Court of Judge Small Causes, Bareilly. The suit was then dismissed in default by the court as having become infructuous. 4. In the meantime, plaintiff/respondents filed the suit S.C.C No.35 of 2002 for arrears of rent and indictments in the Court of Judge Small Causes, Bareilly. The petitioner contested the suit by filing written statement denying her liability to pay future rent in view of the fact that advance money towards rent had already been deposited on 6.1.2002 and oral settlement said to have been entered into by the portion on 16.3.2002. The plaintiff filed their replica on 26.8.2003 along with an application praying for striking of the defence of the petitioner under Order 15 Rule 5 of the Code of Civil Procedure. The trial court by order dated 24.1.2006 struck off the defence of the petitioner. 5. Aggrieved by the order of the trial court strucking off defence the petitioner preferred Revision No.6 of 2006, Smt. Ganga Devi vs. Sampat Prasad which was also dismissed by judgment and order dated 8.7.2010. 6. The contention of the learned counsel for the petitioner is that he has no liability to pay the future rent w.e.f. 16.3.2002, in view of the fact, that he had already deposited Rs.50,000/- as advance rent by the landlord and in view of the oral agreement dated 16.3.2002. 7. In support of his aforesaid submissions, the learned counsel for the petitioner has relied upon paragraph 3 of the decisions rendered in Hotu Ram Sachdeva ( deceased by L.Rs) vs. Additional District Judge No.2, Lucknow and others, ARC, 1989(2) page 130, wherein the Court considered the provision of Order XV Rule 5 of C.P.C. and held that where the order striking defence has been passed without considering the facts that tenant has deposited entire amount admitted by him, then in that circumstances, the rate of rent claimed by landlord should not be made basis for striking of defence particularly in case of dispute of rate of rent. Para 3 of the judgment aforesaid is as under: " Rule 5 has been added to Order XV, C.P.C by U.P. Act No.57 of 1976. Para 3 of the judgment aforesaid is as under: " Rule 5 has been added to Order XV, C.P.C by U.P. Act No.57 of 1976. It provides that under any suit by a lessor for the eviction of a lessee after determination of his lease and for the recovery of rent and compensation for use and occupation the defendant shall at or before the first hearing of the suit deposited the entire amount admitted by him to be due together with interest thereon at the rate of 9% per mensem. It further provides that the lessee whether admits or not any amount to be due he shall throughout continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual. Explanation (iii) added to this rule shows that the expression 'monthly amount due' means the amount due at the admitted rate of rent. This rule further provides that 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 the Court may strike off his defence. It is also provided in this rule that before making an order for striking off the defence, the Court may consider the representation made by the defendant in that behalf." 8. He has then relied upon para 4 of the judgment rendered in Mohd. Salimuddin vs. Misri Lal and another, AWC 1986, page-521, wherein the Court held that where a tenant has advanced loan to landlord to secure the tenancy ( in violation of the prohibition to do so, embodied in statute enacted for his benefit), he can claim adjustment of the loan amount against the landlord's claim for rent. To the same effect he cited 2004(1) ARC 427 , Jayant Kumar Chakraborty vs. XIIth Additional District Judge, Varanasi and others as well as Amba Prasad vs. IVth Additional District and Sessions Judge, Agra and others, ARC 1995(2), page 625, wherein considering the provision of Order XV Rule 5 of C.P.C, the Court held- " Where the tenant does not admit the amount due from him, he is not liable to deposit the amount at the first hearing of the suit and his defence, therefore cannot be struck off." 9. He has also relied upon the decision rendered by this Court in State Bank of India and others vs. Gyan Chandra Moga, 1997(1), ARC, page 561, wherein also, it has been held that if no amount of rent is admitted to be due, defence cannot be struck- off. 10. Per contra, learned counsel for the respondents has submitted that the petitioner in Original Suit No.78 of 2002, Smt. Ganga Devi vs. Sampat Prasad and another had denied Faqir Prasad was his landlord. However, in the written statement in the present S.C.C No. 35 of 2002, he claimed Faqir Prasad to be his landlord. 11. The Court below has also discarded the alleged rent receipt appended as Annexure No.1 to the writ petition as receipt of payment of rent by the petitioner. 12. It is urged by the counsel for the respondents that Order XV Rule 5 of C.P.C provides for (i) demand of arrears of rent and (ii) demand of current rent which may either be admitted or not. Hence considering this inescapable condition of the petitioner, the Court has rightly struck off his defence. 13. In support of his submission, the learned counsel for the respondents has relied upon the judgment rendered in Smt. Munni Devi Vs. Additional District Judge, Ist, Kanpur Nagar and others, ALR 2008(3) Vol.72, page-457. In paragraph nos. 16, 17 and 18 of the said judgment and also in the conclusion part of the said judgment it has been held that 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. It is further held by the Court that of the mandatory requirements of Order XV, Rule 5, C.P.C are not complied with then the application filed by the landlord under the aforesaid provisions for striking of the defence was liable to be allowed and the defence of the tenant is to be struck off. Paragraph Nos. 16, 17 and 18 of the judgment are thus:- "16. This is what was observed by this Court in Smt. Kailash Devi Vs. IVth Addl. District Judge, Allahabad & Ors., 1994(2) ARC 542 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. 16, 17 and 18 of the judgment are thus:- "16. This is what was observed by this Court in Smt. Kailash Devi Vs. IVth Addl. District Judge, Allahabad & Ors., 1994(2) ARC 542 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 along with 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 others, 1994 (2) ARC 157, 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 landlord/plaintiff 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 the rent claimed on the date of first hearing, but as regards monthly rent, he has to deposit whether he admits or not within the time prescribed, under Order XV, Rule 5 of the CPC." 17. This Court in Bal Krishna Vs. Rama Nand Dixit & Anr. 2001(1) ACJ 565 also observed:- "In the instant case, obligation with regard to the deposit of the entire amount admitted to be due together with interest thereon at the rate of nine per centum, at or before the first hearing of the suit, does not arise inasmuch as the applicant has not admitted any amount to be due. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance 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. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance 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 of its 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 1990 (2) ARC 189 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 lessor's account. It is rather per incuriam, and cannot lend support to the contention of the learned Counsel for the applicant." 18. In Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad & Ors., 2003 (1) ARC 214 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. Such monthly deposit is required to be made within a 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. 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, Rule5(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. He has emphasized that paragraph No.16 of the said judgment provided that a tenant cannot take any advantage in allegation that he has paid loan amount or made advance amount towards rent which is prohibited by the Act. 15. After hearing the counsel for the parties and on perusal it record, it is apparent that the petitioner has not complied with the provision of Order XV Rule 5 C.P.C in letter and spirit. The alleged receipt of loan amount appended as Annexure No.1 to the writ petition is not a receipt of payment of rent as rightly held by the court below. In fact, it contains terms and conditions between the petitioner- tenant and the respondents Faqir Prasad for creating tenancy. Receipt of Payment filed as Annexure No.1 to the writ petition has been considered by the courts below and there is no illegality or infirmity in the reasoning given in the impugned order by the courts below in discarding it as rent receipts. The case law cited by the petitioner is not applicable. The petitioner cannot be made to gain for violation of statutory provisions of the Act which impose a statutory bar on payment of premium as advance rent. Admittedly rent has not been paid by the petitioner, hence no interference is required by this Court in this case in exercise of its extraordinary power under Article 226 of the Constitution. The petitioner cannot be made to gain for violation of statutory provisions of the Act which impose a statutory bar on payment of premium as advance rent. Admittedly rent has not been paid by the petitioner, hence no interference is required by this Court in this case in exercise of its extraordinary power under Article 226 of the Constitution. 16. For all the reasons stated above, the writ petition is dismissed. No order as to costs. Petition Dismissed.