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2013 DIGILAW 61 (ALL)

Sardar Iqbal Singh v. Sarswati Devi Varshaney

2013-01-07

SUDHIR AGARWAL

body2013
Sudhir Agarwal, J.;— 1. Heard Sri A.K. Gupta, learned counsel for the petitioner and Sri Vipin Kumar Saxena, learned counsel for respondent. 2. It is contended that in order to attract Order XV Rule 5 C.P.C. it is only the admitted amount by tenant which was to be paid and not the rent claimed by landlord. In the present case tenant admitted rent at the rate of Rs. 48/- per month while the landlord claimed it at the rate of Rs. 180/- per month. The Revisional Court has held that for the purpose of Order XV Rule 5 C.P.C. the amount already deposited by petitioner-tenant at admitted rent of Rs. 48/-, if taken into consideration, still there is a deficiency of only Rs. 24/-, hence it has held that since there is non-compliance of Order XV Rule 5 C.P.C. which is a mandatory provision, therefore, the Trial Court has rightly struck off the defence of petitioner-tenant. It is contended that covering a period of about 15 years in order to find out compliance of Order XV Rule 5 C.P.C., if there was a shortage of only Rs. 24/-, the same would not render defendant-tenant to suffer mischief covered by Order XV Rule 5 inasmuch as it is not such a case where it can be said that tenant has committed a default in compliance of Order XV Rule 5 and the court below has misdirected itself in directing to struck off the defence of petitioner. 3. Per contra, learned counsel appearing for respondent submitted that compliance of Order XV Rule 5 is mandatory and any deviation irrespective of its extent and magnitude will render the defendant liable to face consequences and, therefore, the orders impugned in this writ petition have rightly been passed and warrant no interference. 4. In my view considering the facts and circumstances of the case and perusing the impugned orders this writ petition deserved to be allowed. 5. For the purpose of attracting Order XV Rule 5 once it is admitted that only the admitted amount has to be seen, whether the same has been paid or not, and when covering a period of last 15 years, i.e., from the date the rent was claimed by landlord till the dispute has arisen, i.e., upto 22.07.2005, the Revisional Court found that there was a deficiency of just Rs. 24/-, it cannot be said that provision of Order XV Rule 5 C.P.C. has not been complied with. In my view the principle of principle of deminimis should be applied in this case. 6. This court in Subhash Chandra Purwar Vs. District Judge, Mahoba & Anr., 2012 (3) ARC 354 and in paras 12 and 13 the Court said : "12. The compliance of Section 20(4) in order to call for its benefit is mandatory in words and substance but it cannot be stretched to an extent of hyper technicality and conceiving every situation for which the tenant is not responsible yet to hold him guilty of non-compliance. Law does not contemplate compliance of something to the extent of impossibility. It is in this context the Courts have observed that a substantial and virtual compliance would be deemed to be sufficient instead of sticking to every i's and dots. In taking the view, I find support from Apex Court's decision in Mam Chand Pal Vs. Smt. Shanti Agarwal, 2002(1) ARC 370 (SC). Considering Section 20(4) the Court observed "While considering the import of such provisions, it may have to be seen that the requirement of law is substantially and virtually stands satisfied. A highly technical view of the matter will have no place in construing compliance of such a provision. We may, however, hasten to add that it is not intended to lay down that non compliance of any of the requirements of the provision in question is permissible. All the dues and amounts liable to be paid have undoubtedly to be paid or deposited on the date of first hearing but within that framework virtual and substantial compliance may suffice without sticking to mere technicalities of law." (Para 11) (emphasis added) 13. In the context of a petty shortage, a Division Bench of this Court in Amar Nath Agarwal Vs. Ist Addl. District Judge and others 1982 ARC 734 affirmed this Court's decision in Dinesh Chandra Gupta Vs. Kashi Nath Seth, 1976 ALJ 124 that the rule of deminimis can be applied to a case of such petty shortfall. Though the above judgment was in respect to a question if there is a very small or trifling shortfall, principle of deminimis can be brought into aid or not. Kashi Nath Seth, 1976 ALJ 124 that the rule of deminimis can be applied to a case of such petty shortfall. Though the above judgment was in respect to a question if there is a very small or trifling shortfall, principle of deminimis can be brought into aid or not. In this matter it is not the question of shortfall but actual payment made after two days from the date of first hearing but applying the above principle particularly when reason for actual payment is not attributable to tenant but to the procedural delay taken before the Court below, the tenant cannot be made to suffer. Therefore actual payment made by him on 24th August, 1995 would relate back to the date on which he rendered Tender seeking permission of the Court for making payment i.e. 22.8.1995." 7. This has been followed recently in Writ Petition No.24393 of 2003 (Murari Lal Vs. Sri Girwar & Ors.) decided on 12.9.2012. 8. Though in the context of Section 20(4) the Court has considered application of aforesaid principle but in my view it can safely be applied in a case under Order XV Rule 5 since it is a principle which recognized the application of law equitably, substantially and without adhering hyper technicalities thereto to the extent of impossibility. It furthers the intention of Legislature to do justice to both sides and not to penalize a party for extra or hyper technical view of the matter. 9. Moreover, the question as to whether defence should be struck off or not is a discretion of Court and not mandatory in every case as held by Apex Court in Smt. Leela Devi and another Vs. Smt. Shanti Devi, AIR 1986 SC 90, wherein the Court has said: "The provisions of Rule 5 are discretionary and not mandatory. The fact that the provisions are discretionary presupposes that even if there is a default the Court has to consider as to whether in a particular case it was in the interest of justice to strike off the defence. For deciding whether in a particular case defence should or should not be struck off one has to consider the circumstances of that particular case. One of the main circumstances which requires consideration is the nature of the default. If the amount of default is small or negligible considering the amount already deposited lenient view may be taken." 10. For deciding whether in a particular case defence should or should not be struck off one has to consider the circumstances of that particular case. One of the main circumstances which requires consideration is the nature of the default. If the amount of default is small or negligible considering the amount already deposited lenient view may be taken." 10. In view of above, the writ petition is allowed. The impugned judgments and orders dated 05.08.2005 and 06.03.2006 are hereby set aside. The Trial Court is directed to proceed to decide SCC Suit No. 14 of 1990, in accordance with law, expeditiously, and in any case within a period of six months from the date of production of a certified copy of this order, subject to other business of the court. No costs. _____________