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2020 DIGILAW 684 (ALL)

Ranjana Mishra v. Kamal Kumar

2020-03-04

SARAL SRIVASTAVA

body2020
JUDGMENT : 1. Heard learned counsel for the revision-applicant. 2. By means of present revision, the revision-applicant has assailed the order dated 03.01.2019 passed by III Additional District Judge/Special Judge (D.A.A.), Agra in SCC Case No.66 of 2015 (Kamal Kumar and others Vs. Smt. Ranjana Mishra) whereby the application of the respondents-landlord under Order XV Rule 5 CPC has been allowed and the defence of the revision-applicant has been struck off. 3. The respondents-landlord has filed SCC Case No.66 of 2015 (Kamal Kumar and others Vs. Smt. Ranjana Mishra) against the revision-applicant for eviction and arrears of rent on the ground that the revision-applicant is a tenant of a residential building at the rate of Rs.2200/-per month. The revision-applicant has not paid rent from 01.01.2010 and has committed default in payment of rent. It is further stated that notice terminating the tenancy was given on 20.08.2015 which was replied by the revision-applicant on 17.09.2015. The suit has been instituted on 29.09.2015 for decree of eviction and arrears of rent. 4. In the aforesaid suit, written statement has been filed by the revision-applicant denying the averments of the plaint. It was stated that the revision-applicant has not defaulted in payment of rent. 5. It appears that subsequent to filing of the written statement, the revision-applicant filed amendment application on 05.12.2017 to incorporate the fact that the revision-applicant is not in use and occupation of the residential building as the respondents-landlord has put a lock on the staircase of the building due to which the revision-applicant is not able to use and occupy the building. The said amendment application was allowed by the trial court. 6. The respondents-landlord filed application under Order XV Rule 5 CPC on 26.10.2017 praying that the defence of revision-applicant be struck off as she has not complied with the mandatory requirement of Order XV Rule 5 CPC in not depositing the admitted amount due with interest. 7. The aforesaid application was contested by the revision-applicant contending inter-alia that since she is not in use and occupation of the aforesaid building, therefore, she is not liable to deposit any amount as contemplated under Order XV Rule 5 CPC. 8. 7. The aforesaid application was contested by the revision-applicant contending inter-alia that since she is not in use and occupation of the aforesaid building, therefore, she is not liable to deposit any amount as contemplated under Order XV Rule 5 CPC. 8. The trial court by order dated 03.01.2019 allowed the application by recording a finding that the issue as to whether the revision-applicant is in use and occupation of the building in question is the subject matter of evidence which can be adjudicated on the basis of evidence led by the parties and thus, the revision-applicant is required to comply with the requirement of Order XV Rule 5 CPC and as the revision-applicant has not complied with the same, her defence is liable to be struck off. 9. Challenging the aforesaid order, learned counsel for the revision-applicant has contended that the court below has committed jurisdictional error in allowing the application inasmuch as it is specific case of the revision-applicant that she is not in use and occupation of the property in question, therefore, the requirement of deposit of admitted amount due with interest contemplated in Order XV Rule 5 CPC is not attracted in the present case. 10. He submits that a bare reading of Order XV Rule 5 of CPC shows that admitted due amount as contemplated under Order XV Rule 5 CPC is to be deposited by the lessee only when he is in use and occupation of the property in question. Thus, the submission is that as the revision- applicant was not in use and occupation of building in question, therefore, he is not liable to comply with the requirement of Order XV Rule 5 of CPC. He further submits that the revision-applicant has also laid set-off claim against the respondents in written statement as contemplated under Order VIII (1) of CPC, and the amount claimed by the revision-applicant is more than the admitted rent and thus, for the said reason also revision- applicant is not liable to comply with the requirement of Order XV Rule 5 of CPC. 11. I have considered the submissions of learned counsel for the revision-applicant and perused the record. 12. 11. I have considered the submissions of learned counsel for the revision-applicant and perused the record. 12. The Order XV Rule 5 of CPC provides that 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/lessee 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. 13. Explanation-1 defines the expression 'first hearing' which means that 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 is the date of first hearing. 14. In the instant case, according to the revision-applicant, she is not liable to comply with the requirement of Order XV Rule 5 of CPC as she is not in use and occupation of the premises. The said submission is not sustainable for the reason that the issue as to whether the revision-applicant is in use and occupation of the property can be decided only upon the evidence of the parties and not on the basis of ex-parte version of revision-applicant that she is not in use and occupation of the property in question. The requirement of Order XV Rule 5 of CPC to deposit entire admitted amount due alongwith interest is statutory requirement which the revision-applicant has to comply with as Order XV Rule 5 of CPC does not contemplate or envisage any situation that in case tenant is not in occupation and use of the property in question or has laid set-off claims against the lessor, the requirement of deposit of admitted amount due alongwith interest as provided in Order XV Rule 5 of CPC is not to be complied with. 15. In view of the aforesaid fact, this Court is of the opinion that the court below has not committed any illegality or jurisdictional error in allowing the application under Order XV Rule 5 of CPC of respondents-landlord. Consequently, the revision lacks merit and is dismissed.