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2015 DIGILAW 445 (UTT)

MAYA v. REKHA

2015-09-14

U.C.DHYANI

body2015
JUDGMENT U. C. Dhyani, J. (Oral) 1. By means of present civil revision, the plaintiffs-revisionists seeks to allow the revision with the prayer that the order dated 05.08.2014 passed by the learned J.S.C.C., Additional District Judge- VI, Dehradun in S.C.C. Suit No. 42 of 2012; Smt. Maya and Another vs. Smt. Rekha, may kindly be set aside and application moved by the revisionists under Order 15 Rule 5 CPC may kindly be allowed. 2. The main grounds taken up in the present revision are as follows: (i) It is a settled law that even on mere refusal of relationship of landlord and tenant, the Court has to adjudicate upon the matter in issue after taking necessary evidence, but in the present case, no evidence was taken and to the contrary, merely on the basis of the objections filed by the respondent, the application moved by the revisionists under Order 15 Rule 5 CPC was rejected. (ii) Even otherwise, if the Court was not in a position to decide the application without evidence, then the Court was obliged to keep the application pending and not to reject the application or to give any finding thereupon. 3. In the case of Maqsood Ali vs. Shamsher Khan, AIR 1979 ALL 182 , the Hon’ble Allahabad High Court has observed as under: “(i) Under Order 15, Rule 5 CPC a lessee is liable to deposit the arrears of rent and compensation for use and occupation on or before the first hearing of the suit and thereafter throughout the continuance of the suit deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him. This Rule 5 further empowers a Court that in the event of any default in this regard, the Court would be entitled to refuse to entertain any defence or as the case may be strike off this defence. For applying Rule 5 of Order 15, it is necessary that the relationship of landlord and tenant should exist. The provisions of Order 15 Rule 5 cannot be applied to a case where a suit is not filed by the lessor for the eviction of a lessee from any immovable property after the determination of his lease. It is, therefore, a condition precedent for the exercise of jurisdiction under Order 15 Rule 5 that the relationship of landlord and tenant must be found. It is, therefore, a condition precedent for the exercise of jurisdiction under Order 15 Rule 5 that the relationship of landlord and tenant must be found. (ii) In the instant case, the Judge Small Cause Court did not give any finding that the relationship of lessor and lessee existed. Without determining the said question the written statement of the defendant could not be struck out. In a case, therefore, the Court is bound to decide that issue before passing an order under Order 15, Rule 5 CPC. The implied effect of this denial of relationship is that according to the defendant the provisions of Order 15 Rule 5 CPC do not apply and the Court has no jurisdiction to pass a decree for eviction against him. In such a case, it is incumbent upon the Court to first of all decide the issue as to the existence of the relationship of the landlord and the tenant and if after deciding the said issue the Court comes to the finding that the relationship existed, an order striking off the defence could be made under Order 15, Rule 5 CPC. (iii) Under Order 15, Rule 5 CPC the defendant is liable to pay the admitted rent. If, therefore, a defendant does not admit the liability, the written statement cannot be struck out. The proper course, therefore, in such a case always would be to decide that controversy first and determine whether the denial of relationship of landlord and the tenant raised by him with regard to the title of the plaintiff was bonafide or a mere pretence and without any merit. If the Court finds that the denial is unjustified and there was no substance in that denial, the Court could proceed to make an order for deposit of rent or compensation for use and occupation if other conditions laid down in Order 15, Rule 5 CPC. (vi) As already stated above, since no finding has given by the Court below at the time of the striking off the defence the orders dated 28.07.1975 and 29.04.1975 passed by the Courts below are liable to be set aside. (vi) As already stated above, since no finding has given by the Court below at the time of the striking off the defence the orders dated 28.07.1975 and 29.04.1975 passed by the Courts below are liable to be set aside. As the suit had been decreed without considering the defence, the judgment of the District Judge dated 27.07.1975 and that of the Judge Small Cause Court dated 29.04.1975 are set aside and the Judge Small Cause Court is directed to proceed with the suit in accordance with law. It will be open to it to decide the question of striking off the defence again if it finds that the denial of title by the defendant was unjustified”. 4. It was therefore incumbent upon the learned Court below to have adjudicated upon the matter, instead of dismissing the application under Order 15, Rule 5 CPC merely on the basis of denial of landlord-tenant relationship by the defendant. 5. In the result, the revision succeeds and is allowed. The judgment and order of the court below dated 05.08.2014 is set aside and the judge, Small Cause Court is directed to decide the application afresh in accordance with law and in the light of the observations made above. The parties shall bear their own costs.