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2018 DIGILAW 273 (ALL)

ASHOK KUMAR AGARWAL v. MOOL CHAND GARG

2018-02-01

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Hon'ble Surya Prakash Kesarwani, J. Heard Sri Raj Kumar, learned counsel for defendant-petitioner/tenant. This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 18.01.2018 whereby the Application 25C filed by the plaintiff-respondent/ landlord has been allowed and the objection of the defendant-petitioner/tenant being Paper No.29C has been disposed of. In paragraph-3 of the writ petition, the defendant-petitioner has stated that the plaintiff-respondent had given a legal notice on 30.10.2015 to the defendant-petitioner demanding rent w.e.f. 01.06.2015 which was replied by the defendant-petitioner stating that he has paid rent upto the October, 2015. Thus, the defendant-petitioner has admitted that he is a tenant and the plaintiff-respondent is the landlord. Since the notice was not complied with and as such plaintiff respondent filed S.C.C. Suit No.04 of 2016 (Sri Mool Chand Garg vs. Ashok Kumar Agarwal) in the court of Distirct Judge, Hapur on 15.02.2016 seeking eviction of the petitioner from the disputed accommodation and for recovery of arrears of rent etc. The defendant-petitioner has filed a written statement on 02.11.2017. Since on or before the first hearing of the suit, the entire amount admitted by the defendant to be due together with interest thereon @ 9% per annum was not deposited and as such the plaintiff-respondent/ landlord filed an Application being Paper No.25-ga dated 20.03.2017 under Order XV Rule 5 C.P.C. for striking off defence of the defendant-petitioner. In his objection being paper No.29-ga, dated 16.01.2018, the defendant-petitioner admitted in paragraphs-7 and 8 that there are arrears of rent which he may be permitted to deposit in easy instalments. The aforesaid Application 25C and the objection 29C were heard together and both were disposed of by the impugned order dated 18.01.2018. Learned counsel for the defendant-petitioner/ tenant on a query made by the court; stated that about Rs.4,50,000/- is due towards arrears of rent payable by the defendant-petitioner to the plaintiff-respondent/ landlord. However, he submits that the impugned order providing for "deemed striking off" of defence on non-deposit of the amount before 03.02.2018, is arbitrary and takes away the right of the defendant petitioner to make a representation. Order XV Rule 5, C.P.C. reads as under: "5. However, he submits that the impugned order providing for "deemed striking off" of defence on non-deposit of the amount before 03.02.2018, is arbitrary and takes away the right of the defendant petitioner to make a representation. Order XV Rule 5, C.P.C. reads as under: "5. Striking off defence for failure to deposit admitted rent, etc.-(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. Explanation 1.- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2.- The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in Sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same." Sub-Rule (1) of Order XV Rule 5 is in three parts. The first part provides that 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. Second part provides that apart from the above whether or not the defendant 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. The third part provides that in the event of any default in making, the deposit of the entire amount admitted by him to be due (first part) or the monthly amount due as aforesaid (second part), the Court may, subject to the provisions of Sub-rule (2), strike off his defence. The third part provides that in the event of any default in making, the deposit of the entire amount admitted by him to be due (first part) or the monthly amount due as aforesaid (second part), the Court may, subject to the provisions of Sub-rule (2), strike off his defence. Sub-Rule (2) of Rule 5 of Order XV provides that an opportunity may be given to a defendant to make a representation within ten days of the first hearing for not depositing the entire amount admitted by him to be due together with interest thereon @ 9% per annum. The second limb of Sub-Rule (2) of Rule 5 of Order XV is relatable to the second part of Sub-Rule (1) which provides that a representation may be made within ten days of the expiry of one week of the accrual of monthly amount due. In the present set of facts, it is undisputed that the first date of hearing was 02.11.2017 for the purposes of Sub-Rule (1) of Rule 5 of Order XV but the defendant petitioner has not deposited the entire amount admitted by him to be due together with interest @ 9% per annum. The application 25C for striking off defence was filed on 23.11.2017. However, he had not made any representation within time under Sub-Rule (2). Belatedly, he made a representation/ objection being paper No.29C dated 16.01.2018. Thus, the impugned order dated 18.01.2018 striking off the defence of the defendant petitioner in the event of non-deposit of the entire amount admitted by him to be due together with interest @ 9% per annum and non-deposit of monthly rent, cannot not be said to suffer from any manifest error of law. As per his own admission before this court as noted above, a sum of about Rs.4,50,000/- is still payable by him to the plaintiff-respondent. In view of the aforesaid, I do not find any manifest error of law in the impugned order dated 18.01.2018. The petition completely lacks merit. Consequently, it is dismissed.