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2015 DIGILAW 465 (UTT)

ABDUL HAFIZ v. RAM CHANDRA

2015-09-22

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J.(Oral) By means of present civil revision, the defendant-revisionist seeks to set aside the order dated 03.09.2015, passed by II Addl. District Judge / Judge, Small Causes Court, Roorkee, in SCC suit no. 22 of 2014, titled as Ram Chandra vs Hafiz, and to permit the revisionist to deposit the rent before the court below, after condoning the delay, at the rate of Rs. 800/- per month since the institution of suit by the plaintiff / respondent. 2. Heard learned counsel for the revisionist and perused the impugned order. 3. The main grounds taken up by the revisionist, in his civil revision, are being reproduced here-in-below, in his own words, as follows: i) The learned court below failed to appreciate that in the written statement of the revisionist he has accepted himself to be the tenant of the plaintiff / respondent but at the rate of Rs. 800/- per month and the said amount revisionist was prepared to deposit as per his application 27C which has been rejected by the court below. ii) Learned court below failed to appreciate that due to mere inadvertence the amount as agreed to the revisionist, i.e., at the rate of Rs. 800/- per month was agreeable to the revisionist and the same could not be deposited purely due to lack of legal advise at the appropriate stage and as soon as the said fact came to the knowledge of the revisionist when the application under Order 15 Rule 5 CPC was moved by plaintiff / respondent the revisionist after seeking legal advise and remedy moved an application himself that he was prepared to deposit the rent as agreed to him. iii) Learned court below failed to appreciate that the revisionist was prepared to deposit the rent as was admitted to him, i.e., at the rate of Rs. 800/- per month since the institution of the suit vide his application 27C and even before the points of determination were settled by the court below but still the court rejected the application 27C of the revisionist against the settled position of law. iv) Learned court below failed to appreciate that as per the Uttarakhand Amendment in Order 15 Rule 5 CPC, the same is now divided in two parts. iv) Learned court below failed to appreciate that as per the Uttarakhand Amendment in Order 15 Rule 5 CPC, the same is now divided in two parts. The first part being very strict in nature and the repercussion of the same in default of payment of rent on the first day result in the striking off the defence, but the second part of Order 15 Rule 5 CPC clearly envisages that the rent as agreed to the tenant can be deposited on monthly basis during the pendency of the SCC suit and the same will have not effect on the merits of the case. v) Learned court below failed to appreciate that the revisionist was prepared to deposit the said agreed rent to him at the rate of Rs. 800/- since the institution of the suit, i.e., 03.05.2014 at his own risk and it is settled principle that the tenant should be permitted to deposit the rent at his own risk. vi) Learned court below failed to appreciate that as per the written statement of the revisionist provisions of U.P. Act no. 13 of 1972 were applicable on the said case and the case itself as SCC case was not maintainable. vii) Learned court below failed to appreciate that in the absence of any receipt the only mode before the revisionist so as to affirm his claim that he has been continuously depositing rent is supported by the fact that when the respondent instituted a suit prior to the present case as a case before the Prescribed Authority as PA case no. 16 of 2013, it was nowhere alleged by the respondent / plaintiff that the revisionist has been given a notice for claiming the rent and in the present case the notice was never served upon the revisionist. 4. An application (paper no. 25C) was presented by the plaintiff / respondent under Order 15 Rule 5 CPC before the trial court, mentioning therein that the plaintiff, by way of notice dated 18.02.2014, has determined the tenancy of the defendant. In the written statement, the defendant nowhere denied that there was no landlord-tenant relationship between the plaintiff and defendant. The plaintiff averred in his plaint that a sum of Rs. 72,000/-, as rent, was due against the defendant. A sum of Rs. 6,000/- as interest etc. was also due against the defendant. In the written statement, the defendant nowhere denied that there was no landlord-tenant relationship between the plaintiff and defendant. The plaintiff averred in his plaint that a sum of Rs. 72,000/-, as rent, was due against the defendant. A sum of Rs. 6,000/- as interest etc. was also due against the defendant. Defendant did not offer plaintiff any rent or any money on the first date of hearing. He also did not deposit the rent through tender in the court. The defendant also filed the written statement after 164 days. Plaintiff, therefore, made a request to strike off the defence of the defendant. 5. Defendant-revisionist admitted default in payment of rent. He put all the blame on his lawyer. He made a request to the trial court to permit him to deposit the rent now, which the learned court below refused vide order dated 03.09.2015. Aggrieved against the same, the defendant-revisionist has filed present civil revision. 6. It is an admitted fact that the defendant did not pay rent etc. before the court below on the first date of hearing. The plaintiff instituted the suit on 03.05.2014. Summons were issued to the defendant to file his replies by 05.07.2014. On 05.07.2014, both the parties appeared before the court below. 23.08.2014 was fixed for settlement of issues / points for determination. The defendant moved an application for adjournment on 23.08.2014. The next date was 22.09.2014. Again, SCC suit was adjourned. 18.10.2014 was fixed. On that day, defendant filed his written statement. Thereafter, the SCC suit was listed on 22.11.2014 and 17.01.2015. The written statement of the defendant was admitted on record on 17.01.2015. The next date fixed was 21.02.2015 for the settlement of issues / points for determination. The defendant moved an application for adjournment on 21.02.2015. Plaintiff, in the meanwhile, moved an application (paper no. 25C) under Order 15 Rule 5 CPC. The defendant moved an application (paper no. 27C) for permitting him to deposit the rent, which was rightly dismissed by learned court below in view of Order 15 Rule 5 CPC (as amended), which is being reproduced here-in-below for facility:. “Striking off defence for failure to deposit admitted rent . 25C) under Order 15 Rule 5 CPC. The defendant moved an application (paper no. 27C) for permitting him to deposit the rent, which was rightly dismissed by learned court below in view of Order 15 Rule 5 CPC (as amended), which is being reproduced here-in-below for facility:. “Striking off defence for failure to deposit admitted rent . –(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence.” 7. Thus, when the relationship of landlord-tenant was not denied by the defendant (revisionist herein) in his written statement, it was incumbent upon him to deposit the entire amount admitted by him to be due together with interest thereon at the rate of 9 per cent per annum at or before the first hearing of the suit. Defendant was also obliged to regularly deposit the monthly amount due within a week from the date of its accrual throughout the continuation of the suit. Admittedly, defendant did not do so. As per the Scheme of Order 15 Rule 5 CPC, in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2) strike off his defence. 8. In the instant case, the defence of the revisionist was struck off after considering all the facts of the case. There is no infirmity or illegality in the order under challenge. This Court has no occasion to take a view different from what was taken by learned court below. 9. 8. In the instant case, the defence of the revisionist was struck off after considering all the facts of the case. There is no infirmity or illegality in the order under challenge. This Court has no occasion to take a view different from what was taken by learned court below. 9. Civil revision fails and is, accordingly, dismissed at the admission stage itself.