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2013 DIGILAW 1603 (ALL)

RAM ASHRAY LAL v. KHALEEL AHMAD

2013-05-30

KRISHNA MURARI

body2013
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri S.N.Jaiswal, learned counsel for the petitioners. Petitioner-landlord filed suit against the respondent-tenant in the Court of Judge Small Causes being SCC Suit No. 6 of 1990 seeking a decree of possession of the premises in dispute as well as arrears of rent and costs on the ground of default in payment of rent from 1.12.1988 to 31.3.1990 after terminating the tenancy. Suit was contested by respondent-tenant by filing written statement alleging that when landlord refused to accept an amount of Rs. 1760/- as rent from December, 1988 to April, 1990 it was sent through money order on 12.4.1990 which was also refused and thereafter the same was deposited under Section 30 (1) of U. P. Act No. 13 of 1972. Trial Court framed following four issues : 1.Whether the notice issued by the plaintiff terminating tenancy is a valid notice ? 2.Whether the suit is barred under Sections 11, 12 and 13 of U. P. Act No. 13 of 1972 ? 3.Whether the tenant is a defaulter? 4.Whether the defendant is entitled to the benefit of the deposit made under Section 30 of U. P. Act No. 13 of 1972 ? Issue No. 1 was decided against plaintiff-petitioner and in favour of respondent-tenant. Issue No. 2 was decided in negative and it was held that suit is not barred by provisions of Sections 11, 12 and 13 of U. P. Act No. 13 of 1972. Issue No. 3 was decided against plaintiff-petitioner and in favour of respondent-tenant. In so far as issue No. 4 is concerned, the trial Court after analyzing the facts and various case law cited on behalf of respective parties held that respondent-tenant has been regularly depositing the monthly rent during the pendency of the suit and in so far as deposit on the first date of hearing is concerned, entire amount was already deposited under Section 30 (1) of the U. P. Act No. 13 of 1972 and the respondent-tenant was entitled to be extended benefit of the same. On the basis of the aforesaid findings, suit was dismissed, against which a revision was preferred. Revisional Court vide judgment and order dated 7.3.2013 dismissed the same and affirmed the decree of the trial Court. 2. On the basis of the aforesaid findings, suit was dismissed, against which a revision was preferred. Revisional Court vide judgment and order dated 7.3.2013 dismissed the same and affirmed the decree of the trial Court. 2. Sole ground urged by the learned counsel for the petitioner is that both the Courts below have committed manifest illegality in as much as deposit under Section 30 (1) of the U. P. Act No. 13 of 1972 was made after receipt of notice terminating the tenancy hence respondent-tenant was not entitled to be extended the benefit of the said deposit. 3. I have considered the argument advanced by the learned counsel for the petitioner and perused the record. It is an admitted fact that notice under Section 106 of the Transfer of Property Act terminating the tenancy was served upon the respondent-tenant on 29.5.1990. Both the Courts below have recorded concurrent findings of fact that rent tendered by the respondent-tenant was not accepted by the petitioner-landlord and thereafter it was deposited under Section 30 (1) of the U. P. Act No. 13 of 1972 on 31.5.1990. 4. The issue for consideration is whether respondent-tenant is entitled to the benefit and adjustment of the amount deposited under Section 30 (1) of the U. P. Act No. 13 of 1972 towards deposit to be made on or before first date of hearing under Order XV Rule 5 C. P. C. In so far as deposit of regular monthly rent during the continuance of the suit, there is no dispute that the said amount has been regularly deposited by the respondent-tenant before the Court. Order XV Rule 5 C. P. C. reads as under : “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 2.—The expression “entire amount admited 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 lessor’s 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 lessor’s account. 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 lessor’s 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. A bare perusal of Order XV Rule 5 CPC read with explanation (2) goes to show that any amount deposited under Section 30 of the U. P. Act No. 13 of 1972 is liable to be deducted and adjusted towards the deposit to be made of the amount admitted to be due on or before the first hearing of the suit. The view taken by me finds support from the decision of a learned single Judge in the case of Basant Kumar Chauhan v. VII Additional District Judge, 1994 (1) ARC 107, wherein it has been observed as under : “It is, therefore, obvious that the provisions contained in Order XV Rule 5, read with Explanation II clearly stipulate that any amount deposited in any Court under Section 30 of the U. P. Act No. 13 of 1972 could be taken notice of by the Court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual. .........................Considering the Explanation III to Order XV Rule 5 of the Civil Procedure Code it is clear that for finding out the ‘monthly amount due’ the deposits made in any Court under Section 30 of the U. P. Act No. 13 of 1972 are not to be taken into account...........................Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under Explanation III to Order XV Rule 5 (1) of the Civil Procedure Code in the suit regularly throughout its continuation with a week from the date of its accrual in order to save his defence from being struck off.” 6. The aforesaid view of the learned single Judge has been affirmed by a Division Bench of this Court in the case of Haider Abbas v. Additional District Judge and others, 2006 (1) ARC 341 . In paragraph 27 of the said report, the Division Bench observed as under : “We, in view of the discussion made above, entirely agree with the views expressed by the learned single Judge in the aforesaid case of Basant Kumar Chauhan (supra).” 7. In view of the law laid down by the Division Bench of this Court, both the Courts below have rightly held that respondent-tenant was entitled to be extended the benefit of deposit made by him under Section 30 (1) of the U. P. Act No. 13 of 1972 after the money order sent by him was refused by the landlord-petitioner. Thus, the argument advanced by the learned counsel for the petitioner is devoid of any merits. No other point was argued or pressed before me. As a result, the writ petition is liable to be dismissed and is hereby dismissed in limine. However, in the facts and circumstances of the case, there shall be no order as to costs. —————