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2015 DIGILAW 3750 (ALL)

Bhap @ Wahab v. Satish Kumar Jain

2015-12-01

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. – This petition is directed against orders dated 6.9.2012, striking off the defence of the defendant-petitioner under Order 15, Rule 5 CPC, as well as the order 13.10.2015, affirming it in revision. 2. Facts, in brief, giving rise to filing of this petition under Article 227 of the Constitution of India are that defendant-petitioner is a tenant of premises being House No.215-A West end Road, Meerut, since long. In proceedings under section 30 of the U.P. Act No.13 of 1972, rent is being deposited by defendant-petitioner since the year 1991. In the year 2008 proceedings for eviction was initiated before the Judge, Small Causes Court, on the allegation that rent from 17.6.2004 to 10.6.2007 and damages since thereafter has not been paid. A written statement was filed by the petitioner in the matter on 15.7.2008. An application thereafter was filed by the plaintiff-respondent/landlord under Order 15, Rule 5 CPC on the ground that since the admitted rent has not been deposited on the date of first hearing, as such, the defence of the defendant-petitioner is liable to be struck off. A reply to this application has been filed by the defendant-petitioner, stating that he has already deposited rent in proceedings under section 30 since 1991 and in respect of proceedings pending before the Judge, Small Causes Court, the rent for the period from 1.9.2005 to 31.8.2011 has been deposited on 21.7.2011, and therefore, the defence of the defendant-petitioner is not liable to be struck off. Prayer was also made to extend the period for depositing rent. 3. Both the courts below, however, have found that the defence of petitioner is liable to be struck off under Order 15, Rule 5 CPC. 4. Sri Siddharth, learned counsel appearing for the petitioner submits that he has been depositing the rent since 1991 in proceedings under section 30 of U.P. Act No.13 of 1972 and there was no default. Learned counsel further submits that even otherwise, in the present proceedings, the rent had been deposited in July, 2011 and the court had jurisdiction to condone the delay in depositing of monthly rent, and as such, the order impugned cannot be sustained. Learned counsel further submits that even otherwise, in the present proceedings, the rent had been deposited in July, 2011 and the court had jurisdiction to condone the delay in depositing of monthly rent, and as such, the order impugned cannot be sustained. Reliance has been placed upon a Division Bench judgment of this Court in Haider Abbas v. Additional District Judge and others: 2006 (1) ARC 341 , as well as upon a decision of learned Single Judge in Kishori Lal v. Special Judge, Varanasi and others: 2007 (3) ACR 214. 5. Learned counsel appearing for the plaintiff-respondent/landlord has placed reliance upon a decision of this Court in Jeewan Prasad v. Madarsa Talimool Kuran through Masaud Aalam: 2015 (3) ARC 191 , as well as upon decisions of the Apex Court in Atma Ram v. Shakuntala Rani, (2005) 7 SCC 211 and in Bal Gopal Maheshwari and others v. Sanjeev Kumar Gupta, (2013) 8 SCC 719 . 6. On the basis of materials brought on record and submissions advanced, this Court finds that though in proceedings under section 30, the petitioner had been depositing the rent but petitioner had failed to deposit monthly rent in the present proceedings. The Division Bench of this Court in the case of Haider Abbas (supra) has made following observations in para 37, which is reproduced: - "We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order 15 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." 7. It has been observed by the Division Bench that any deposit made in proceedings under section 30 prior to institution of proceedings before the Judge, Small Causes Court may be considered but the tenant has to continue with deposit of rent in proceedings pending before the Judge, Small Causes Court, after such proceedings are instituted. It has been observed by the Division Bench that any deposit made in proceedings under section 30 prior to institution of proceedings before the Judge, Small Causes Court may be considered but the tenant has to continue with deposit of rent in proceedings pending before the Judge, Small Causes Court, after such proceedings are instituted. In the facts of the present case, it is to be noticed that proceedings were instituted in the year 2008 but the rent from 2005 to 2011 was deposited for the first time by the petitioner only in the year 2011, and there was no deposit of rent for the period after filing of suit before Judge, Small Causes Court, in proceedings pending before it. Although power to condone the delay is there with the court, but such power has to be exercised in the facts of a case, judiciously. This is what was observed by this Court in the case of Kishori Lal (supra) in para 7, which is reproduced: - "In the above legal background and taking into consideration the finding recorded by the court below that for some months rent was deposited by the defendant tenant in advance and also the argument of the petitioner's counsel that, as a matter of fact, excess amount was deposited by the tenant if the deposit made under section 20(4) of the Act is taken into consideration, it does appear that the courts below have wrongly refused to exercise discretion vested in them in refusing to condone the delay in making deposit and ordering the defence to strike off. It must be remembered that Order 15, Rule 5 CPC has been enacted just to safeguard interest of landlord and unscrupulous tenant may not illegally deprive a landlord of his legitimate claim of the admitted rent. It has not been enacted to penalise a tenant who under some misconception or misapprehension has not complied with the provisions of Order 15, Rule 5 CPC in letters but has complied it in spirit." 8. In the facts of the present case, this Court finds that deposit of rent has not been made for a period of almost three years. There apparently was no justification on part of the tenant in not depositing rent for such a long period of time. In the facts of the present case, this Court finds that deposit of rent has not been made for a period of almost three years. There apparently was no justification on part of the tenant in not depositing rent for such a long period of time. Judgment of the Apex Court in the case of Atma Ram (supra) would clearly be attracted in the present case where default is persistent, and the Court would not be justified in condoning the delay in the facts of the present case. This Court further finds that the courts below have correctly appreciated the provisions of law in the context of facts of the particular case. There is no jurisdictional error, which may justify this Court to interfere in this petition under Article 227 of the Constitution of India. 9. The petition consequently fails and is dismissed. Petition dismissed.