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2015 DIGILAW 1351 (ALL)

Panaru Lal v. Ganpati Jha

2015-05-22

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar, J. In brief, the facts of the case is that the respondent/landlord filed a suit being Suit No. 14 of 2011 before Small Cause Court at Varanasi for arrears of rent and eviction from the shop in question. The tenancy was determined by notice dated 1 May 2008 which was served upon the petitioner on 6 May 2008. The petitioner/tenant contested the suit by filing written statement on 16 January 2012. On 5 September 2012, the petitioner moved an application (44-Ga) stating therein that the petitioner was depositing the rent under Section 30 of Act No.13 of 1972 and had deposited the rent till August 2012, therefore, request to adjust the sum and permit the petitioner to deposit the rent in the pending suit for the month of September 2012 and onwards. The respondent/landlord contested the application by moving an application (48-Ga) requesting to strike off the defence of the petitioner on the ground that the petitioner had not deposited the rent in terms of Rule 5 Order 15 of the Code of Civil Procedure, to which the petitioner filed a reply. The Court allowed the application (48-Ga) of the respondent/landlord striking off the defence of the petitioner vide order dated 30 July 2014. Aggrieved, the petitioner preferred a revision which was dismissed by the Revisional Court/Additional District Judge, Varanasi on 26 February 2015. 2. Aggrieved, the petitioner is assailing the aforementioned orders in writ jurisdiction. 3. Heard Sri P.K. Kesari,learned counsel for the petitioner and Sri P.K. Ganguli, learned counsel for the respondent. 4. Submission of the learned counsel for the petitioner is that the petitioner was continuously depositing the rent under Section 30 of Act No. 13 of 1972 even after filing of the written statement in the suit. The petitioner being an uneducated person and having no knowledge of the law, therefore, continued to deposit the rent under Section 30 of the Act of 1972 on the advise of the counsel. The petitioner moved an application requesting to condone the delay and permit the petitioner to deposit the rent in the Court where the suit was pending. The pleadings to the same effect has been made in para-15 and 19 of the petition. 5. The petitioner moved an application requesting to condone the delay and permit the petitioner to deposit the rent in the Court where the suit was pending. The pleadings to the same effect has been made in para-15 and 19 of the petition. 5. Learned counsel for the petitioner has placed reliance upon the following judgments: Shakuntala Devi (Smt.) and others vs. Xth Additional District Judge, Allahabad and others1, Sunnu Lal Gupta vs. The Ist Additional District Judge, Jhansi and others2, Smt. Leela Devi and another vs. Smt. Shanti Devi Jaiswal3, Bimal Chand Jain vs. Sri Gopal Agarwal4, Surendra Nath Dubey vs. Smt. Shakuntala Devi5, Rameshwar Dayal vs. The District Judge, Allahabad and another6, to urge that a liberal approach should be taken when the delay is not intentional, the defence should not be struck off. 6. Per contra, learned counsel for the respondent/landlord would submit that the scheme of Rule 5 Order 15 of the C.P.C. is mandatory and non compliance would entail striking off defence of the petitioner. In support of his submission, learned counsel for the respondent placed reliance upon the following cases: Haider Abbas vs. Additional District Judge (Court No.3), Allahabad and others7, and Kanhai and another vs. Prafull Kumar8. 7. The Court below has noted in the impugned order that the petitioner had put in appearance on 20 October 2011 by filing power on the date fixed for hearing and for filing the written statement. The petitioner filed written statement on 16 January 2012, the court fixed 6 February 2012 as the last date for hearing. The court below upon noticing the undisputed dates, recorded a finding that the petitioner admittedly did not comply with the provisions of Rule 5 of Order 15 nor any application was filed for compliance. The application (44-Ga) for deposit of rent and interest in terms of Rule 5 Order 15, was moved 8 months after putting in appearance in the suit, contending, therein that the petitioner has been depositing the rent in Misc. Case No. 118 of 2011 under Section 30 of Act No. XIII of 1972, petitioner admittedly has not deposited the rent till August 2012, before the Court hearing the suit. The application was moved on 5 September 2012 when the suit was fixed for final hearing/evidence. Upon considering the undisputed facts, the Court below directed that the petitioner may deposit the rent at his own risk. 8. The application was moved on 5 September 2012 when the suit was fixed for final hearing/evidence. Upon considering the undisputed facts, the Court below directed that the petitioner may deposit the rent at his own risk. 8. The undisputed fact which emerges is that the petitioner/tenant failed to deposit the monthly rent due in the court where the suit was pending, admittedly, the amount of rent was being deposited by the petitioner in terms of Section 30 of the Act No. 13 of 1972. The petitioner was under an obligation to deposit the rent before the Court where the suit was pending. The plea of ignorance of law or wrong advise would not come to the rescue of the petitioner. 9. I need not discuss each case cited by the rival parties, only those which are relevant to the facts of the present case are being considered. 10. A Division Bench of this Court in Haider Abbas (supra) was called upon to answer the following question : "Whether the deposit made under section 30(1) of U.P. Act No.13 of 1972 after the date of service of summons of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Order XV, Rule 5, C.P.C.?" The Court observed as follows: "13. On a careful analysis of the provisions of Order XV Rule 5 CPC we find 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. 14. Explanation 2 to Order XV Rule 5 (1) CPC stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the local authority in respect of the building on lessor's account and the amount, if any, deposited in any Court under Section 30 of the Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5 (1) of Order XV of Rule 5 CPC to mean 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. " 11. The Court upon considering the judgments rendered by the Supreme Court observed 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. 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. 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. The Court answered the reference in para-37 in the following terms: "We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, hold that while depositing the amount at 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 throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the Act cannot be deducted. " 12. In the facts of the case in hand, it is undisputed that the tenant failed to deposit the monthly rent in the Court where the suit was pending. " 12. In the facts of the case in hand, it is undisputed that the tenant failed to deposit the monthly rent in the Court where the suit was pending. The courts below have recorded a finding of fact in this regard which learned counsel for the petitioner has failed to demonstrate to be vitiated on any count. Even if, the amount towards rent was being deposited by the tenant under Section 30 of Act No. 13 of 1972, though, not defaulting, still the petitioner was under an obligation to deposit the monthly rent due before the Court where the suit was pending, the amount so deposited under Section 30 of Act No. 13 of 1972 was not liable to be deducted from the said deposit, thus, the tenant was clearly in default. 13. Having due regard to the facts and the legal proposition stated herein above, there is no illegality or infirmity in the impugned orders which requires any interference by this Court. 14. The writ petition fails and is, accordingly, dismissed. 15. No order as to costs.