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2015 DIGILAW 1900 (ALL)

More Singh v. Chandrika Prasad

2015-07-14

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. The petitioner is challenging the order passed by Judge Small Causes in SCC Suit No. 4 of 2008, dated 15.3.2011, whereby his defence was struck off under Order XV, Rule 5 CPC and the order dated 30.5.2015 passed by the revisional court affirming the said order. Judge Small Causes has recorded a categorical finding of fact that the admitted arrears of rent were not deposited by the petitioner on the first date of hearing. The court has noted, that the petitioner, who is defendant in the suit, was duly served on 8.4.2008 and he appeared before the court on 28.2.2009 and filed written statement on 28.2.2009. But he did not make any deposit, either of arrears of rent or of monthly rent. The deposits made under Section 30, after first date of hearing of the suit, were held to be illegal. The revisional court, while dismissing the revision, apart from affirming the findings recorded by Judge Small Causes, also took into consideration the plea of the petitioner that he had deposited the rent in the suit. The revisional court has held that all the challans, which the petitioner had brought on record by way of paper no. 30 (Ga), relates to the period after the filling of the written statement and striking off of the defence. These deposits were made by the petitioner at his own risk. 2. In such view of the matter, the revisional court held that the order of the Judge Small Causes striking off the defence is perfectly justified. 3. Learned counsel for the petitioner submitted that the petitioner had deposited the rent in proceedings under Section 30 of the UP Act XIII of 1972 and the courts below, while passing the orders have not taken into consideration the deposits so made. 4. A perusal of the documents filed in that regard reveals that the order passed in proceedings under Section 30 is dated 31.8.2012. Thereby, the petitioner was permitted to deposit rent for the month of March, 2008 to May 2008 on his own risk. However, it appears from the pleas taken by the petitioner that even before passing of such order, he was making the deposits at his own risk. The suit for recovery of arrears of rent and for ejectment being SCC suit no.4A/5 of 2008 was filed by the respondent-landlord on 3.4.2008. However, it appears from the pleas taken by the petitioner that even before passing of such order, he was making the deposits at his own risk. The suit for recovery of arrears of rent and for ejectment being SCC suit no.4A/5 of 2008 was filed by the respondent-landlord on 3.4.2008. The summon in the suit were served on the petitioner on 8.4.2008. He appeared in the suit on 28.2.2009 and filed his written statement on 28.3.2009. Thus even if date of filing of the written statement is assumed to be the date of first hearing, it was incumbent upon the petitioner to have deposited the entire arrears by that date and to continue depositing monthly rent in the suit itself. 5. It is admitted to the petitioner that he had not paid rent to the landlord since March 2008 at the admitted rate of Rs.100/- per month. The petitioner claims to have deposited the arrears of rent and monthly rent in proceedings under Section 30, being misc. case no. 27/7/08. The defence in the suit was struck off on 15.3.2011 and by that time neither arrears of rent nor monthly rent was deposited in the suit. The petitioner contested the application of the landlord for striking off the defence, but made no representation in terms of Order XV, Rule 5 (2) CPC, before the Judge Small Cause Court. 6. The sole question for consideration is whether the tenant is entitled to the benefit of deposits made in proceeding under Section 30 in misc. case no. 27/7/08. A Division Bench of this Court in Haider Abbas vs. Additional District Judge (Court No.3) Allahabad and others, 2006 (1) ARC 341 while considering the provisions of Order XV Rule 5 CPC and the decision of the Supreme Court in Atma Ram, (2005) 7 SCC 211 observed as follows: - "The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes 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. It has further been emphasised that 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. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC. .............. 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." In Basant Kumar Chauhan Vs. VIIth A.D.J., 1994(1) ARC 107 after analyzing the provisions of Order XV Rule 5 CPC, this Court observed: - "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.............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 within a week from the date of its accrual in order to save his defence from being struck-off." In Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad, 2003 (1) ARC 294 , after placing reliance on the decisions rendered in Basant Kumar Chauhan and Sayeed Hasan Jafar alias Shakil Ahmad Vs. Rurabal Haq and others, 1995 (2) ARC 341, this Court observed as follows: - "In view of the aforesaid decisions of this Court, it is evident that the deposit of the monthly rent/compensation by the petitioner (defendant) under Section 30 of the U.P. Act No. XIII of 1972 during the continuance of the said S.C.C. Suit No.26 of 1977 were illegal, and the same could not be said to be made in compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure. Once the "first hearing" in the said S.C.C. Suit No.26 of 1977 arrived, it was no longer open to the petitioner to continue to deposit the monthly rent/compensation under Section 30 of the U.P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad. The said monthly deposits should have been made in the said S.C.C. Suit No.26 of 1977 before the respondent No.2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure namely, head (B) above." 7. The said monthly deposits should have been made in the said S.C.C. Suit No.26 of 1977 before the respondent No.2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure namely, head (B) above." 7. It thus follows that while deposits made under Section 30, before the date of first hearing are to be adjusted but any rent deposited thereafter in proceeding under Section 30 would not enure to the benefit of the tenant for adjudging compliance of the provisions of Order XV, Rule 5 CPC. 8. In the instant case, admittedly after filing of written statement on 28.3.2009, which can safely be assumed to be the date of first hearing in the suit, till the striking off of his defence by the trial court on 15.3.2011, not a single penny was deposited in the suit. The petitioner had also not made any representation, in that regard. As such, there was no error on part of the trial court, in striking off the defence. 9. The petitioner claims to have made deposit of arrears of rent, in the suit, while his revision was pending in the court below. The revisional court has given cogent reasons for not taking into consideration these deposits. 10. This Court does not find any illegality in the impugned orders to justify exercise of supervisory power under Article 227 of the Constitution. 11. The petition lacks merit and is dismissed.