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2019 DIGILAW 2268 (ALL)

Maseehamasi Farookhi v. Jainul Islaam @ Gop

2019-09-26

MANISH MATHUR

body2019
JUDGMENT : Manish Mathur, J. Heard Sri Ravi Nath Tilhari, learned counsel for the petitioner and Sri S.K.Mehrotra, learned counsel assisted by Ms.Priyam Mehrotra, learned counsel appearing on behalf of opposite party no.1. Opposite party no.2, Additional District Judge being merely a proforma opposite party is not represented. 2. Under challenge is the order dated 30.08.2018 passed by III Additional Sessions Judge, Unnao in SCC Revision No.04/2018 (Jainul Islaam @ Gop v. Maseehamasi Farookhi) whereby revision filed against order dated 17.05.2018 striking off defence of tenant-opposite party on application of petitioner-landlord has been allowed. 3. As per averments made in this petition filed under Article 227 of the Constitution of India, petitioner-landlord filed SCC Suit No.8/2009 for arrears of rent, damages and ejectment of tenant-opposite party with respect to three shops numbered 369, 370, 371 situate in Mohalla Taki Nagar, opposite Central Bank, Pargana, Tahsil and District Unnnao. It has been stated that tenancy of the shops in question was at the rate of Rs.700/- per month for each shop apart from water tax. The landlord was compelled to file suit when monthly rent with effect from June 2008 till April 2009 was not paid by tenant. The tenancy was determined by registered notice dated 27.04.2009 in which arrears of rent and water tax was also demanded along with vacation of the shops in question. However, despite aforesaid notice when arrears of rent were not paid, petitioner-landlord was compelled to file the suit. 4. Tenant-Opposite party having put in appearance in suit proceedings, filed his written statement on 07.05.2010 admitting tenancy but denying the rate of rent at the rate of Rs.700/- per shop for any period prior to April 2007 although admitting aforesaid rate of rent with effect from April 2007. Liability for payment of water tax was also denied. 5. Subsequently, the SCC Suit was dismissed in default of appearance on 30.08.2011 and was restored to its original number only on 25.09.2014 whereafter tenant-opposite party filed application dated 23.01.2015 (Paper No.56-Ga) to deposit rent with effect from August 2011 till January 2015 amounting to Rs.88,200/-. Another application (Paper No.61-Ga) was filed to deposit rent for the months of February 2015 till April, 2015 including water tax and interest at the rate of 9% per annum amounting to Rs.5040/-. 6. Another application (Paper No.61-Ga) was filed to deposit rent for the months of February 2015 till April, 2015 including water tax and interest at the rate of 9% per annum amounting to Rs.5040/-. 6. Aforesaid applications were allowed by means of order dated 23.08.2017 permitting tenant to deposit rent/arrears of rent/water tax and interest at his own risk. 7. However, it has been stated that despite said order, tenant did not comply with the same and no such deposit as envisaged in the order was made by tenant. Owing to the said fact, petitioner-landlord filed application dated 1.5.2017(Paper No.C-70) under Order 15 Rule 5 CPC seeking the striking off defence of tenant-opposite party for failing to comply with the provisions. Petitioner-landlord filed another application on 30.10.2017 (Paper No.C-86) stating that tenant had not deposited rent with effect from April 2011 and that an amount of more than Rs.2,00,000/- towards rent and water tax was outstanding. A prayer for striking off defence as per the earlier application was also made. 8. Pursuant to aforesaid applications by petitioner-landlord, tenant opposite party filed another application dated 16.12.2017 (Paper No.91-Ga) stating that the due amount could not be deposited owing to ill-health of tenant and permission was sought to deposit Rs.50,000/- out of due amount, with assurance that rest amount would be deposited at the earliest. The application was thereafter allowed vide order dated 16.12.2017 permitting tenant-opposite party to deposit the amount at his own risk. It has been stated that even thereafter, deposit as permitted was not made. 9. Subsequently vide order dated 17.05.2018, application (no.C-70) was allowed striking off defence of tenant-opposite party against which SCC Revision No.4 of 2018 was filed and has been allowed vide impugned order dated 30.08.2018 resulting in the filing of the present petition under Article 227 of the Constitution of India. 10. 9. Subsequently vide order dated 17.05.2018, application (no.C-70) was allowed striking off defence of tenant-opposite party against which SCC Revision No.4 of 2018 was filed and has been allowed vide impugned order dated 30.08.2018 resulting in the filing of the present petition under Article 227 of the Constitution of India. 10. Learned counsel appearing on behalf of petitioner-landlord has submitted that a bare perusal of order dated 17.05.2018 will make it clear that the circumstances indicated in said order left the court with no other option but to strike off defence of tenant-opposite party particularly in view of the fact that twice applications for deposit of rent were allowed by the SCC Court, firstly on 23.08.2017 and subsequently on 16.12.2017 but despite said permission being granted by court, no deposit was made by tenant which would definitely come within the meaning of the term 'willful default'. It has been submitted that the learned revisional Court had no occasion to disturb the order dated 17.05.2018, particularly when no different opinion has been expressed by revisional court for differing with reasons indicated by the SCC Court. It has been submitted the finding recorded by revisional court that tenant/opposite party has deposited rent on various occasions is not based on any cogent evidence on record and is also completely against the finding recorded by the SCC Court to the effect that no deposit was made by tenant-opposite party despite orders thereto. 11. The learned counsel has relied upon the decision of Hon'ble the Supreme Court in Bal Gopal Maheshwari and others v. Sanjeev Kumar Gupta, (2013) 8 SCC 719 regarding the scope of powers of this Court under Article 227 of the Constitution of India. He has further relied on the judgment rendered by Hon'ble the Supreme Court in Trilok Singh Chauhan v. Ram Lal (Dead) through LRs and others, (2018) 2 SCC 566 . Reliance has also been placed on the judgment in Bimal Chand Jain v. Gopal Agarwal, (1981) 3 SCC 486 ; Haider Abbas v. Additional District Judge (Court No.3), Allahabad and ors, (2006) 1 ARC 341 as well as decision of this Court in Shailendra Sharma and another v. Amit Bansal (Dr.), (2017) 5 ADJ 239 with regard to striking off defence and the provisions of Order 15 Rule 5 C.P.C. as applicable in the State of U.P. 12. Learned counsel appearing on behalf of tenant-opposite party has rebutted arguments advanced by learned counsel for the petitioner with the submission that arrears of rent along with interest etc. had been deposited by tenant-opposite party on the first date of hearing which was prior to its dismissal in default of appearance in the year 2011. It has been submitted that the suit itself was dismissed in default of appearance on 30.08.2011 and was subsequently restored only after three years on 25.09.2014. As such, there was no occasion for tenant-opposite party to make any deposit within aforesaid three years. It has been submitted that subsequently as soon as the suit was restored, tenant-opposite party himself filed application dated 23.1.2015 seeking to deposit rent for the period August 2011 till January 2015. Another application for deposit of rent for the period of February 2015 till April 2015 was also made by tenant-opposite party at his own instance. The said applications were allowed vide orders dated 23.08.2017 but could not be complied with owing to illness of tenant-opposite party. It was in such extenuating circumstance that deposit of rent could not be made which has, rightly been condoned by the revisional court. Learned counsel for the opposite parties has relied upon the judgments rendered in Shailendra Sharma and another v. Dr. Amit Bansal, (2017) 35 LCD 1521; Rajendra Kumar Verma and another v. Padma Jindal and another, (2006) 1 ARC 764; Shiv Balak Singh v. Additional District Judge XI, Lucknow, (2014) 2 ARC 552 , Dina Nath (D) by LRs & another v. Subhash Chand Saini & others, rendered by Hon'ble the Supreme Court in Civil Appeal No.4563 of 2014 as well as Santosh Mehta v. Om Prakash, (1980) 3 SCC 610 regarding striking off defence. 13. Heard learned counsel for the parties and perused the record. 14. It is admitted between the parties that the dispute in question pertains only to the second part of Order 15 Rule 5 C.P.C. pertaining to continuous regular deposits being made during pendency of suit proceedings and that deposits made on first date of hearing as provided in the first part under Order 15 Rule 5 C.P.C. are not in question. 15. 15. Regarding the same, it is seen that the suit was filed in 2009 in which written statement was filed on 07.05.2010 but suit having been dismissed in default of appearance on 30.08.2011 was thereafter restored to its original number only on 25.09.2014 whereafter tenant-opposite party filed application dated 23.01.2015 for deposit of rent from August 2011 to January 2015 and by a separate application for deposit of rent from February 2015 till March 2015. Despite opposition by petitioner-landlord, said applications were allowed vide order dated 23.08.2017 permitting tenant-opposite party to make the deposit at his own risk. Subsequently another application for deposit of rent was filed after filing of application under Order 15 Rule 5 C.P.C. on 01.05.2017. The said application was also allowed vide order dated 16.12.2017. Thereafter defence had been struck off vide order dated 17.05.2018 specifically recording aforesaid facts and particularly indicating that despite permission granted for deposit of rent vide orders dated 23.08.2017 and 16.12.2017, no deposit as prayed for and directed was made by tenant-opposite party. The SCC Court on the basis of aforesaid facts came to the conclusion that default in deposit of rent by tenant-opposite party was willful, necessitating striking off defence under Order 15 Rule 5 of C.P.C. 16. The revisional court vide the impugned order has upset the order of SCC Court permitting tenant-opposite party to make deposits within a period of one month. It is to be seen that the order of revisional court is conditional and that in the event of tenant-opposite party not making deposit as indicated by the revisional court, the revision was directed to be considered dismissed. 17. It has been submitted by learned counsel for tenant-opposite party that in pursuance of directions of the revisional court, deposit was made as directed. 18. For proper appreciation of dispute in question, it would be necessary to refer to provisions of Order 15 Rule 5 C.P.C. as applicable in the State of Uttar Pradesh, which are quoted hereunder : Order XV : Disposal of the Suit at the first hearing : 1............. 2............. 3............. 4............. 5. 18. For proper appreciation of dispute in question, it would be necessary to refer to provisions of Order 15 Rule 5 C.P.C. as applicable in the State of Uttar Pradesh, which are quoted hereunder : Order XV : Disposal of the Suit at the first hearing : 1............. 2............. 3............. 4............. 5. Striking off defence on 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 centum 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 or 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, deposited in any court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972. Explanation 3.-- 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 deductions except the taxes, if any, paid to a local authority in respect of the building on lessor's account. 1972. Explanation 3.-- 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 deductions 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 security for such sum before he is allowed to withdraw the same." 19. A perusal of order dated 17.05.2018 striking off defence indicates that the trial court exercised its discretion to do the same in view of the fact that deposit of rent etc. had been permitted to be made by tenant twice vide orders dated 23.08.2017 and 16.12.2017 on the applications preferred by tenant himself but when compliance of neither of the orders was made, defence was struck off holding that such default is willful on the part of tenant. 20. Perusal of impugned order dated 30.08.2018 passed by the revisional court however indicates that findings recorded by trial court pertaining to willful default on the part of tenant has not been interfered with. The only ground on which tenant opposite party was granted indulgence was after appreciating his submission with regard to illness and the fact that there was no occasion for tenant-opposite party to have made any deposit towards rent from August 2011 till September 2014 due to the suit having been dismissed in default of appearance. It was in these circumstances that the order of trial court was interfered with and tenant-opposite party was granted an opportunity to deposit rent which admittedly has been done in pursuance of such directions. 21. It was in these circumstances that the order of trial court was interfered with and tenant-opposite party was granted an opportunity to deposit rent which admittedly has been done in pursuance of such directions. 21. The decision in Bal Gopal Maheshwari(supra) relied upon by learned counsel for the petitioner noticing the provisions of Order XV Rule 5 C.P.C. as applicable in the State of Uttar Pradesh and judgment of Hon'ble the Supreme Court in Bimal Chand Jain(supra) has held that the discretion exercisable by trial court with regard to striking off defence is not compulsory and is in the realm of discretion to be exercised by the trial court upon consideration of facts and circumstances of the case. It has been held that interference with regard to the power to strike off written statement can be exercised only in case it was perverse or the court below has exceeded or failed to exercise the jurisdiction. Shailendra Sharma(supra) also relies upon judgment of Hon'ble the Supreme Court rendered in Bimal Chand Jain(supra) which has held as follows:- "6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, "the court may subject to the provisions of sub-rule (2) strike off his defence". We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word "may" in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default." 22. Thus it can be seen that power to strike off defence is not to be exercised by treating it to be a statutory mandate. Since exercise of such power inflicts severe penal consequences, the court has discretion not to strike off defence if on facts it finds good reason for not doing so. Therefore, the power should be exercised after consideration of the facts and circumstances appearing on the record and, in the event of there being a representation, after considering the representation. 23. Since exercise of such power inflicts severe penal consequences, the court has discretion not to strike off defence if on facts it finds good reason for not doing so. Therefore, the power should be exercised after consideration of the facts and circumstances appearing on the record and, in the event of there being a representation, after considering the representation. 23. Once the court concerned has exercised its discretion regarding striking off defence, an aggrieved party has remedy of filing revision under Section 25 of the Provincial Small Cause Courts Act, 1887 but the revisional court has very limited power to interfere with the discretion so exercised by court concerned. Such limited grounds for interference have already been explained by Hon'ble the Supreme Court in Trilok Singh Chauhan(supra). In the said decision, it has been held that interference in exercise of jurisdiction under Section 25 of the said Act can be only when the findings are perverse, based on no material, upon taking into consideration the inadmissible evidences or without consideration of relevant evidence. The relevant paragraph of the said judgment is quoted as follows: 25. There are very limited grounds on which there can be interference in exercise of jurisdiction Under Section 25; they are, when (i) Findings are perverse or (ii) based on no material or (iii) Findings have been arrived at upon taking into consideration the inadmissible evidences or (iv) Findings have been arrived at without consideration of relevant evidences. 24. Upon application of aforesaid judgments, it is clear that the trial court has absolute discretion to pass appropriate orders regarding striking off defence upon an application so made by the landlord. The discretion once exercised can be interfered with by the revisional authority only on limited grounds. In the present case, it can be seen that the revisional court has not at all interfered with the findings of fact recorded by the trial court. None of the grounds indicated by Hon'ble the Supreme Court in Trilok Singh Chauhan(supra) has been followed by revisional court while passing the impugned order. As such it can be said that the impugned order has been passed against the principles enunciated by Hon'ble the Supreme Court. 25. Another aspect to be considered is whether the discretion exercised by the trial court in striking off defence has been exercised judicially upon consideration of material facts or not. As such it can be said that the impugned order has been passed against the principles enunciated by Hon'ble the Supreme Court. 25. Another aspect to be considered is whether the discretion exercised by the trial court in striking off defence has been exercised judicially upon consideration of material facts or not. The trial court judgment clearly indicates that tenant-opposite party has committed wilful default in adhering to the second part of Order 15 Rule 5 C.P.C. particularly since tenant-opposite party was twice given opportunity to make deposit of the admitted amount of dues but the said benefit was not availed of and deposit as required to be made in terms of the order of trial court was not made. It was in these circumstances that the trial court held default on part of tenant-opposite party to be wilful, thereby striking off defence. 26. Hon'ble the Supreme Court in Atma Ram v. Shakuntala Rani, (2005) 7 SCC 211 has held that in Rent Control legislation, if tenant wishes to take advantage of beneficial provisions of the Act, he must strictly comply with the requirements indicated therein. The relevant paragraph of the said decision is as follows: 19. It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision. 27. The aforementioned position was reiterated by a Division Bench of this Court in Haider Abbas(supra), which reads as follows:- 23. The aforesaid decision of the Supreme Court in the case of Atma Ram, (supra)emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default. 24. In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram, (supra), it has to be held that the tenant must comply with the requirements of Order XV, Rule 5, C.P.C. and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and,therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5(1) of Order XV, C.P.C. 25. It, therefore, follows that the amount due to be deposited by the tenant through out the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under section 30(1) of the Act after the first hearing of the suit cannot be taken into consideration. 28. The aforesaid view with regard to tenant being obliged to strictly comply with requirements of the Act in order to avail advantage of beneficial provisions has been reiterated by this Court in a number of judgments following the aforesaid judgments of Hon'ble the Supreme Court and this Court. 29. In the present case, it is quite clear that tenant opposite party failed to make compliance of provisions of Order 15 Rule 5 C.P.C. despite adequate opportunity being provided for the same by the trial court. 30. Upon application of the judgments indicated hereinabove, it is quite clear that tenant-opposite party was a wilful defaulter and deliberately failed to comply with the provisions of Order 15 Rule 5 C.P.C. due to which his defence was correctly struck off by the trial court and that the order passed by the revisional court, being against the judgments rendered by Hon'ble the Supreme Court regarding powers and jurisdiction of interference, is also vitiated. 31. 31. So far as judgments relied upon by learned counsel for tenant-opposite party are concerned, the case of Shailendra Sharma and another v. Dr. Amit Bansal(supra) has followed the dictum of Hon'ble the Supreme Court in Bimal Chand Jain(supra) in which it has been held that the power to strike off defence is not mandatory but discretionary at the instance of court concerned. To the same effect is another judgment relied upon by learned counsel for tenant-opposite party in Santosh Mehta v. Om Prakash(supra). 32. There is no dispute regarding proposition that power exercisable under Order 15 Rule 5 C.P.C. is not mandatory but discretionary at the instance of court concerned. In the instant case, the trial court has clearly recorded a finding that tenant-opposite party is a wilful defaulter since it failed to comply with provisions of Order 15 Rule 5 C.P.C. not once but twice upon applications filed by tenant opposite party itself. As such its discretion was exercised in the facts and circumstances of the case which would clearly be in accordance with the dictum of Hon'ble the Supreme Court. 33. Learned counsel appearing for tenant-opposite party has also relied upon the judgment of Hon'ble the Supreme Court in Dina Nath (D) by LRs & another v. Subhash Chand Saini & others, (supra) in which again it has been held that the power to strike off defence is discretionary at the instance of court concerned and that it is not mandatory for the court to automatically allow the application for striking off defence. It has also been held that mere failure to pay rent on part of tenant is not enough to justify an order striking off defence and it is only a wilful failure or deliberate default that can call for exercise of the extra ordinary power vested in court. 34. In the present case the trial court has clearly recorded a finding of fact that there was wilful and deliberate default on part of tenant-opposite party in complying with the provisions of Order 15 Rule 5 C.P.C. thereby requiring it to exercise its discretion of striking off defence. The aforesaid judgments also therefore would not be of any help to learned counsel for tenant-opposite party. 35. The aforesaid judgments also therefore would not be of any help to learned counsel for tenant-opposite party. 35. In the present case, it can be seen that tenant-opposite party was allowed to make deposit of admitted amount of rent firstly in August 2017 and thereafter in December 2017. The defence has been struck off subsequently in May, 2018. As such it can be seen that the default in deposit of admitted amount of rent as contemplated under second part of Order 15 Rule 5 C.P.C. was continuous and, therefore, the explanation of illness given by tenant-opposite party without adequate evidence to corroborate the same would definitely fall within the meaning of wilful default. The revisional court without interfering with the findings of fact recorded by the trial court erred in law in setting aside the order of trial court for striking off defence without adhering to the principles enunciated by Hon'ble the Supreme Court regarding exercise of revisional power. 36. In view of the aforesaid, the petition is allowed setting aside the judgment and order dated 30.08.2018 passed in SCC Revision No.04/2018 (Jainul Islaam @ Gop v. Maseehamasi Farookhi).