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2015 DIGILAW 3462 (ALL)

Ramji Prasad Baranwal v. Addl. Dist. Judge

2015-11-03

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal,J. Heard Sri R.S. Verma, learned counsel for the petitioner and Sri A.N. Rai, learned counsel for the respondents. 2. By means of this petition, the petitioner is invoking the supervising jurisdiction of this Court under Article 227 of the Constitution of India to set aside the order dated 25.5.2011 passed by the J.S.C. Court and the order dated 2.5.2013 passed by the revisional court. The applicant is the tenant of a shop and a godown situated in Sri Bihari Ji market at Mohalla Matwarganj, City and District Azamgarh on a monthly rent of Rs. 300/- and Rs. 150/-; respectively. He was in default of rent and hence respondent no. 3 i.e. the landlord had instituted a suit for arrears of rent and ejectment. The J.S.C.C. Suit No. 12 of 2001 was instituted on 17.9.2001 on the ground that the petitioner was in default for more than four months. 3. It appears that prior to the institution of this suit, an Original Suit No. 617 of 2000 for injunction was filed by the petitioner, in which certain deposits were made. 4. In the present suit, the written statement was filed on 24.2.2005. Further an application paper no. 22 Ga2 was moved by the petitioner on 7.4.2005 with the prayer that the rent deposited by him in the Injunction Suit No. 617 of 2000 may be adjusted and he may further be permitted to deposit the current and future monthly rent, cost of the suit and the counsel's fee in the present suit. The said application was allowed on 14.3.2008 and the petitioner was permitted to make the monthly deposits after adjustment of the rent deposited by him in the injunction suit. 5. Challenging this order, respondent no. 3 filed a Revision No. 122 of 2008 which was allowed on 31.8.2010 and the order of the trial court dated 14.3.2008 permitting the petitioners to make the deposits was set aside. A writ petition challenging the order in revision was also dismissed on 14.9.2011. 6. The respondent no. 3, thereafter filed an application paper no. 3 filed a Revision No. 122 of 2008 which was allowed on 31.8.2010 and the order of the trial court dated 14.3.2008 permitting the petitioners to make the deposits was set aside. A writ petition challenging the order in revision was also dismissed on 14.9.2011. 6. The respondent no. 3, thereafter filed an application paper no. 62 Ga2 with the prayer to strike off the defence of the petitioner under Order XV Rule 5 C.P.C. Simultaneously an application 63 Ga2 was filed by the petitioner with the prayer to permit him to deposit the rent, the cost of the suit and the counsel's fee by condoning the delay in making these deposits. 7. The grounds taken by the petitioner in the said application were that he had acted bonafide in depositing the rent in Original Suit No. 617 of 2000 and moved an application in the instant suit to allow him to make future deposits which was allowed on 14.3.2008 and since then the petitioner was continuously depositing rent till November, 2011. He was not a defaulter and has always been ready and willing to deposit the entire rent, cost of the suit and the counsel's fee which the court would direct. He did not receive proper advised and being ignorant of the intricacies of law, he could not make the deposits earlier in the present suit. The trial court has rejected this application vide order dated 25.5.2011 and the revision challenging the same was also dismissed on 2.5.2013, hence this petition. 8. Submission of the learned counsel for the petitioner is that the default, if any, made by the petitioner was not a willful default. It is not a case where the tenant had not deposited the rent rather it is a case where rent had been deposited but in another proceeding. After filing of the suit in the year 2001, the petitioner was under obligation to deposit the rent before the J.S.C. Court but he did get the correct advice and hence he continued to make deposits in the injunction suit. Soon after filing of the written statement on 24.2.2005, an application was moved by the petitioner on 7.4.2005 with the prayer to allow him to make the current and future deposits. It was also prayed that the rent deposited in the injunction suit be adjusted in the present proceedings. Soon after filing of the written statement on 24.2.2005, an application was moved by the petitioner on 7.4.2005 with the prayer to allow him to make the current and future deposits. It was also prayed that the rent deposited in the injunction suit be adjusted in the present proceedings. This application was allowed on 14.3.2008 and the petitioner had continued to deposit the regular rent till November, 2011. 9. Even though the earlier application moved by the petitioner for adjustment of the rent deposited by him in the injunction suit was rejected, however, this does not preclude the petitioner from making a request to condone the delay in making the deposits in the present proceedings. The prayer made by the petitioner is rejected only on the ground that the order of adjustment of rent deposited in the injunction suit dated 14.3.2008 has been set aside and the petitioner did not move the application to deposit on time. The revisional court also erred in law in not considering the matter on merits rather in coming to the conclusion that the petitioner had no intention to pay the rent to the landlord. 10. Reliance has been placed upon the judgment of Apex Court in Bal Gopal Maheshwari & Others vs. Sanjeev Kumar Gupta decided on 30.8.2013 in Civil Appeal No. 7279 of 2013 (Arising out of SLP (C) No. 22265 of 2007) and Pramod Mehrotra and others vs. Ram Shankar Chaurasia and others 2007 (68) ALR 85; Mahesh Kumar vs. Shibbo Singh 2008 (1) ARC 436 ; Pyare Lal vs. District Judge, Lucknow and others 2010 (81) ALR 167 , to submit that the trial court has erred in exercise of its discretionary jurisdiction in rejecting the application for making deposits after the date of First hearing. 11. Submission is that striking off the defence is a serious matter, the Court must adopt a lenient view. The defendant has a right to show by bringing material on record that he has not been guilty of the default alleged or if the default has occurred there was good reason for it. 12. Referring to the judgment of Apex Court in Bimal Chand Jain vs. Sri Gopal Agarwal 1981 (3) SCC 486 , it is submitted that the order of striking off the defence is in the nature of penalty. The power to struck off the defence is not to be exercised mechanically. 12. Referring to the judgment of Apex Court in Bimal Chand Jain vs. Sri Gopal Agarwal 1981 (3) SCC 486 , it is submitted that the order of striking off the defence is in the nature of penalty. The power to struck off the defence is not to be exercised mechanically. The discretion vested in the Court is to be exercised, if good reasons are there for doing so. The word "may" has been used in sub rule (1) of rule 5 of Order XV itself indicates that the power is vested in the Court but it does not oblige it to exercise it in every case of default. 13. Submission is that in the instant case, the court below has erred in exercise of its jurisdiction and while exercising the power to strike off the defence under Order XV rule 5 it has adopted a very narrow construction to the Rule. 14. In rebuttal, learned counsel for the respondent submits that the court below has erred in allowing the application 22 Ga2 by the order dated 14.3.2008. This order was set aside and the ground taken by the petitioner in the earlier application therein that he was not unaware of the legal position and his counsel had ill advised him were held to be unconvincing and unsatisfactory in Writ Petition No. 58657 of 2010 (Ramji Prasad Baranwal vs. Additional District Judge and another) wherein this Court has held that any deposits made by the petitioner in an injunction suit can not be taken into considerationdjusted in SCC suit filed for arrears of rent and ejectment in compliance of the provisions contained under Order XV Rule 5 C.P.C. 15. The plea taken by the petitioner that he was depositing the rent in the injunction suit on the wrong advice of his counsel was not accepted by this Court and it was observed that the petitioner did not disclose the name of the counsel who had allegedly given him wrong advice nor any affidavit of the said counsel has been filed in support of his contention. The petitioner cannot take shelter behind the alleged wrong advice of the counsel. It was nothing but a lame excuse to justify his conduct. Learned counsel for the respondent categorically submits that the subsequent application is nothing but a second application for the same prayer. 16. The petitioner cannot take shelter behind the alleged wrong advice of the counsel. It was nothing but a lame excuse to justify his conduct. Learned counsel for the respondent categorically submits that the subsequent application is nothing but a second application for the same prayer. 16. Further submission of learned counsel for the respondent is that the petitioner is guilty of perjury in filing an incorrect copy of the application 63 Ga2 dated 15.11.2010 in J.S.C.C. Suit No. 12 of 2001 as Annexure 5' to the writ petition. The correct copy of the application paper no. 63 Ga2 dated 15.11.2010 is filed as Annexure C.A.-'2' to the counter affidavit. In Annexure 5' to the writ petition, the name of Nisar Ahmad Advocate has been added with a view to get an undue advantage. The petitioner had succeeded in getting the interim order by filing this incorrect copy of the application in the present writ petition. 17. Before the revisional Court below the petitioner had filed an amendment on 22.5.2012 application paper no. 15 Ka2 for amendment in the application 63 Ga2. The amendment was an effort to insert the name of one Nisar Ahmad, Advocate who allegedly gave wrong advice to the petitioner. It is stated in paragraph 7' of the counter affidavit that the amendment application was filed after death of Sri Nisar Ahmad, Advocate. This application was rejected by order dated 3.12.2012 which is appended as Annexure C.A.-'5' to the counter affidavit. The order dated 3.12.2012 of the revisional Court was challenged by the petitioner in Writ Petition No. 12714 of 2013 (Ramji Prasad Banwal vs. Addl. Distt. Judge and another) which was dismissed on 7.3.2013. These facts have not been disclosed and therefore the writ petition deserves to be dismissed with costs. 18. In rejoinder, submission is that a correct copy of the application 63 Ga2 has been filed by the petitioner and there is no concealment. 19. Both the courts below have recorded that the question as to whether the deposits made by the petitioner in the injunction suit can be adjusted in the SCC suit for arrears of rent and ejectment to provide benefit of Order XV rule 5 CPC has been set at rest with the dismissal of Writ Petition No. 58657 of 2010 by order dated 14.9.2011. The petitioner did not deposit the rent in the present suit on the First date of hearing and the prayer to deposit the rent subsequently cannot be allowed. With these findings, the defence was struck off. 20. Challenging the order impugned, one of the argument of the petitioner is that he cannot be treated as a defaulter in view of fact under the order dated 14.3.2008 he was making the deposits. The petitioner had deposited the entire rent with interest, cost of suit and the counsel's fee and as such there was no justification for striking off the defence. 21. This argument cannot be accepted for the reason that the order dated 14.3.2008 was set aside in revision and the revisional order has been affirmed by this Court. The deposits made under an order which has been held to be an illegal order cannot be taken as a defence by the petitioner. 22. Further placing reliance upon various judgments of Apex Court, this Court in Bal Gopal Maheshwari & Others vs. Sanjeev Kumar Gupta Civil Appeal No. 7279 of 2013 (Arising out of SLP (C) No. 22265 of 2007) and Bimal Chand Jain vs. Sri Gopal Agarwal 1981 (3) SCC 486 the second submission of the petitioner is that there must be good reason to strike off the defence and the court should not place undue narrow construction on the provisions of Clause (1) of Rule 5 of Order XV. The order under sub-rule (1) striking off the defence is in the nature of penalty and that the discretion exercised by the courts below is arbitrary and whimsical. 23. Relying upon judgments of this Court in Pramod Mehrotra and others vs. Ram Shankar Chaurasia and others 2007 (68) ALR 85; Mahesh Kumar vs. Shibbo Singh 2008 (1) ARC 436 ; Pyare Lal vs. District Judge, Lucknow and others 2010 (81) ALR 167 , the submission is that the Court may take a lenient view and giving wide construction to the provisions of Clause (1) of the Rule (5) of Order XV, the order of striking off the defence may be set aside and the petitioner may be allowed to lead evidence after imposition of the some cost. 24. The ratio of the judgments relied upon by learned counsel for the petitioner does not apply in the facts and circumstances of the instant case. 24. The ratio of the judgments relied upon by learned counsel for the petitioner does not apply in the facts and circumstances of the instant case. The deposits made by the petitioner in the injunction suit and in the present suit pursuant to the order of the court below dated 14.3.2008 cannot be treated as good deposits as per the provision of Order XV rule 5 CPC. These provisions are attracted in the facts and circumstances of the instant case. The discretion exercised by the Court below cannot be said to be arbitrary or illegal. 25. There is no infirmity in the orders passed by the trial court as also the revisional court. 26. The writ petition is dismissed.