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2013 DIGILAW 3119 (ALL)

SUNAHARI LAL v. PREMWATI

2013-12-20

MANOJ MISRA

body2013
JUDGMENT Hon’ble Manoj Misra, J.—I have heard Sri Rahul Sahai for the revisionist and Sri Swapnil Kumar for the plaintiff-respondent. 2. The instant revision has been filed under Section 25 of the Provincial Small Causes Court Act against the order dated 9.9.2013 passed by the Special Judge (SC/ST) Act, Etah in S.C.C. Suit No. 06 of 2007 by which the defence of the defendant-revisionist has been struck off under Order XV Rule 5 of the Code of Civil Procedure, as applicable in the State of Uttar Pradesh. 3. The brief facts of the case are that the plaintiff-respondent instituted S.C.C. Suit No. 06 of 2007 against the defendant-revisionist for possession of the accommodation in suit after eviction of the defendant-revisionist as also for arrears of rent. On 14.10.2007, the defendant-revisionist put in appearance in the suit. Neither the admitted dues nor the monthly admitted rent was deposited before the Court where the S.C.C. Suit No. 06 of 2007 was pending. Accordingly, the plaintiff-respondent applied for striking off the defence, under Order XV Rule 5 CPC. The defendant-revisionist contested the application on ground that he had been depositing the rent under Section 30 (1) of the U.P. Act No. 13 of 1972 in Misc. Case No. 13 of 2003 where the rent from December, 2002 up to May, 2011 has been deposited, accordingly, the defence ought not to be struck off. 4. The Court below took the view that the under Order XV Rule 5 of the Code of Civil Procedure, as applicable in the State of Uttar Pradesh, the admitted rent due is not only to be deposited on the first day of hearing of the suit before the Court concerned but the monthly rent is also to be deposited month to month by the end of the 7th day from when it becomes due. The Court below relied on a Division Bench decision of this Court in the case of Haider Abbas v. Additional District Judge and others, 2006 (1) ARC 341 , wherein it was held that while depositing the amount on or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act but the deposits of the monthly amount thereafter through out the continuation of the suit must be made in the Court where the suit is instituted for eviction and recovery of rent and the amount, if any, deposited under Section 30 of the Act cannot be deducted. Relying on the aforesaid decision, the Court below took the view that as admittedly the defendant had not deposited the monthly rent before the Court, as and when it fell due, the defence was liable to be struck off. Accordingly, by the impugned order, the defence of the defendant was struck off. 5. Assailing the impugned order, the learned counsel for the revisionist relying on the decision of the Apex Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal, AIR 1981 SC 1657 , submitted that it is not obligatory to the Court to strike off defence and that the Court has to consider the facts and circumstances of the case so as to take a decision whether to strike off the defence or not. Several other authorities were also placed, which also propounded the same view. It was submitted that on 11.11.2010, the revisionist had filed an application before the Court below for permitting him to deposit the rent in the Court where the suit was pending but no order was passed on the said application. It was, thus, submitted that the Court below had failed to consider the circumstances which justified that there was no need to strike off the defence. 6. It was, thus, submitted that the Court below had failed to consider the circumstances which justified that there was no need to strike off the defence. 6. In reply to the above submission, the learned counsel for the plaintiff-respondent submitted that as admittedly the defendant-revisionist had not deposited the monthly amount before the Court concerned and the amount deposited, under Section 30 of the Act, cannot be adjusted against the amount required to be deposited on monthly basis, in view of the decision of the Division Bench of this Court, the order passed by the Court below cannot be said to be against the provisions of law so as to justify interference in the revisional jurisdiction. It was further submitted that there is no need for any permission to make a deposit and, therefore, the application of the defendant-revisionist was completely misconceived and the same cannot be taken as a representation which needed the attention of the Court. It was submitted that only for passing of the tender challan, permission is required when the amount is tendered but, in the instant case, the defendant-revisionist never tendered the amount for deposit before the Court concerned, therefore, the said application was completely meaningless and it cannot also be treated as a representation. It was also submitted that the default in making monthly deposit had been from the year 2007, that is, the year in which the revisionist had put in appearance whereas the application for permission to deposit was sought at the fag end of the year 2010. It has been submitted that sub rule (2) of Rule 15 of Order XV CPC requires that the representation ought to be within 7 days of default. It has thus been submitted that the application seeking permission to make deposit in the year 2010 is just an eye wash and is meaningless. 7. Having considered the submissions of the learned counsel for the parties, this Court is of the view that there is no dispute with regards to the failure on the part of the defendant-revisionist in making the monthly deposits that are required under Order XV Rule 5 of the C.P.C., as amended in the State of Uttar Pradesh. The learned counsel for the revisionist also could not show any binding authority taking a different view than what was taken in Haider Abbas case (supra). The learned counsel for the revisionist also could not show any binding authority taking a different view than what was taken in Haider Abbas case (supra). Accordingly, the deposit made under Section 30 of the U.P Act No. 13 of 1972 was not entitled to be adjusted against the monthly deposit required under Order XV Rule 5 C.P.C. Therefore, the defence of the revisionist was liable to be struck off. As regards the submission that no order was passed on the application of the revisionist seeking permission to deposit the amount, suffice it to say that it is not the case of the revisionist that the amount was tendered for deposit, yet the Court concerned did not pass the tender challan. Unless the amount was tendered, the Court was not obliged to pass any order on the application of the revisionist because it is always open to the party to tender the amount to the Court and seek for its permission. Moreover, the said application was filed much after seven days of default. In any case, the default committed by the revisionist is not of one or two monthly deposits. The default has been of more than two years since before the filing of the application seeking permission to deposit. In such a fact scenario, it cannot be said that the trial Court erred in not exercising discretion in favour of the revisionist. In view of the above, I do not find any legal error in the order passed by the Court below. The revision is dismissed. There is no order as to costs.