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2021 DIGILAW 1636 (ALL)

Gomti Devi v. Addl. District Judge, Unnao

2021-12-24

J.J.MUNIR

body2021
JUDGMENT : J.J. MUNIR, J. 1. This petition under Article 227 of the Constitution is directed against an order passed by the learned Additional District Judge, Court No. 1, Unnao dated 30.11.2021, allowing SCC Revision No. 6 of 2015 preferred by the landlord-respondents, setting aside an order of the Judge, Small Cause Court dated 30.07.2015 with a remand to the Trial Judge to decide Applications Nos. 315Ga and 319 Ga, afresh. 2. SCC Suit No. 7 of 2003 was instituted by the defendant-respondents against the plaintiff-petitioner, seeking a decree of eviction, recovery of arrears of rent and damages for use and occupation. The Suit was instituted on 19/20.10.2003. The plaintiffs' evidence was over by 17.09.2004 and, thereafter the suit was posted for the defendant to lead her evidence, besides disposal of the remainder of applications, pending. 3. At this stage, the plaintiff-respondents moved an application under Order XV Rule 5 CPC, bearing Paper No. 315 Ga, seeking to strike off the defendant-petitioner's defence. It was said by the plaintiff-respondents that the defendants-petitioner had made an application bearing Paper No. 24 Ga on 29.04.2004 seeking to deposit arrears of rent and damages in the sum of Rs.1,27,039/-and that up to the month of March 2005, rent was also deposited. But, ever since the month of April 2005, until time of making the application seeking to strike off defence, the defendant-petitioner has not deposited the due rent at all, let alone regularly, in accordance with the provisions of Order XV Rule 5 CPC. It was prayed that for the defendant-petitioner's failure to deposit monthly rent in Court, her defence was liable to be struck off. 4. The defendant-petitioner objected to the aforesaid application and made another application bearing Paper No. 319Ga, whereby arrears of rent for the period March 2005 to December, 2015, at the rate of Rs.1200, per mensem, together with simple interest at the rate of 9% per annum taxable annually and working out to a figure of Rs.1,68,192/-was moved along with a deposit challan for the said sum. 5. A prayer was made in the said application to condone the delay in making good the deposit of rent under Order XV Rule 5 CPC. It was asserted that in the event the plaintiff-respondents' application to strike off the tenant's defence were allowed, irreparable injury would be caused to her. 5. A prayer was made in the said application to condone the delay in making good the deposit of rent under Order XV Rule 5 CPC. It was asserted that in the event the plaintiff-respondents' application to strike off the tenant's defence were allowed, irreparable injury would be caused to her. It was also asserted that the plaintiff had partitioned the demised premises into two parts. It was also asserted by the defendant, through her application/representation seeking condonation of delay in depositing the outstanding rent, that the suit after the year 2005 was up for consideration of an issue about its maintainability. That issue had arisen in the context that the plaintiff had included relief regarding some vacant agricultural land that was later on deleted through an amendment. During the period 2005 to 2015, the issue about maintainability had engaged the attention of the High Court. The defendant-petitioner in the best defence of her interest, had engaged another Counsel. The defendant Smt. Gomti Devi, who made this application also pleaded that she was suffering from extreme ill health and had received treatment from doctors at Lucknow and Kanpur. For the said reason as well, she could not comply with the requirement of monthly deposit of rent under Order XV Rule 5 CPC for the period April 2005 to December 2015. The delay was occasioned on account of the aforesaid reasons. It was prayed that she wants to deposit the entire outstanding rent etc. 6. The plaintiff-respondents objected to the defendant-petitioner's application 319 Ga and said that all facts asserted seeking to represent the tenants case justifying delay in deposit of monthly rent, were incorrect. The defendant Smt. Gomti Devi, had neither changed her counsel nor was she ill. It was pointed out that Smt. Gomti Devi was regularly appearing in Original Suit No. 193 of 2006, through her Counsel. It was also said that application Paper No. 319 Ga had now been made in order to save her defence from being struck off. 7. The Trial Court, after hearing parties, found the tenant's representation against the delay in deposit of rent in compliance with Order XV Rule 5 CPC to be sufficient. The application 315 Ga was allowed and the petitioner's deposit of rent for the period April 2005 to December, 2015 was accepted. Her defence was saved. 8. 7. The Trial Court, after hearing parties, found the tenant's representation against the delay in deposit of rent in compliance with Order XV Rule 5 CPC to be sufficient. The application 315 Ga was allowed and the petitioner's deposit of rent for the period April 2005 to December, 2015 was accepted. Her defence was saved. 8. This order was assailed in Revision under Section 25 of the Small Cause Courts Act carried to the District Judge of Unnao. The Revision came up before the Additional District Judge, Court No. 1, Unnao for hearing on 30.11.2021, when it was allowed with a remand to the learned Judge, Small Cause Court asking the Trial Court to hear and decide the plaintiff-respondents' application 315 Ga seeking to strike off the tenants defence and the defendant-petitioner's application 319 Ga seeking condonation of delay and leave to deposit rent in compliance with Order XV Rule 5 CPC, afresh. 9. It is against the orders of remand aforesaid made by the learned Additional District Judge in Revision that the defendant-petitioner has come up through this petition under Article 227 of the Constitution. 10. A perusal of the order passed by the learned Additional District Judge, Unnao shows that the learned Judge has opined that under the provisions of Order XV Rule 5 CPC, in its second part, it is required that rent has to be deposited by the 7th of each succeeding month and that in the event of default, a representation has to be made with reasons within a period of ten days explaining the default. It has further been opined that in case the defendant does not comply with the aforesaid Rule, the defence is liable to be struck off. 11. In our opinion, the position of the law enunciated by the learned Judge is slightly inaccurate, though broadly correct. Under Order XV Rule 5 CPC, in any suit by a lessor for the eviction of a lessee after the termination of his tenancy, recovery of rent and damages for use and occupation, the defendant is allowed to deposit on or before the first hearing of the suit, the entire amount admitted by him to be due towards arrears of rent and damages for use and occupation with simple interest thereon at the rate of 9% per annum. By the second part of sub-rule (1) of Rule 5 of Order XV CPC, the provision obliges the defendant to deposit rent with the Court throughout the pendency of the suit regularly, month by month, within a week of the rent falling due. In the event of default in complying with either of the two requirements, that is to say, deposit of rent at the first date of hearing, or the regular monthly deposit within one week of accrual of rent, the tenant's defence is liable to be struck off. There is only one provision under which the Court can save the tenant's defence, and that is, the sub-rule (2) of Rule 5 of Order XV CPC. 12. Under sub-rule (2) aforesaid, it is provided that the Court before making an order striking off defence may consider any representation made by the tenant, if it is made within ten days of the first hearing or within expiry of one week of the date of accrual of the monthly rent. 13. It has been judicially opined now with much consistency that discretion with the Court to condone the delay in the case of deposit of rent etc. required to be made on the first date of hearing is a time period of ten days reckoned from the date of first hearing, and in case of monthly deposit of rent, a period of seven days from the date on which the rent falls due or accrues. 14. Thus, in case of deposit of rent during the course of the suit, the Court has a period of seven days alone, during which it may exercise its discretion to condone the tenant's delay in depositing the rent. After passage of a period of seven days from the date on which the monthly rent accrues, the Court would have no discretion in the matter. 15. In this connection, reference may be made to the decision of this Court in Pushpa Gupta vs. Subhash Chandra and Another, 2020 (2) All L.J. 68, where it has been held: “50. The provisions contained under Order XV Rule 5 C.P.C. have been consistently held to be mandatory, and it has been held that the benefits conferred on tenants under the rent control legislation can be enjoyed only on the basis of strict compliance of the statutory provisions. The provisions contained under Order XV Rule 5 C.P.C. have been consistently held to be mandatory, and it has been held that the benefits conferred on tenants under the rent control legislation can be enjoyed only on the basis of strict compliance of the statutory provisions. There is no provision to claim exemption from complying with the conditions under Order XV Rule 5 C.P.C. apart from consideration of a representation made by the defendant as per Order 15 Rule 5 (2) C.P.C. 53. It has been consistently held that the tenant is required to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein, and any deposit not made in consonance with the said rule cannot enure the benefit of the tenant. Also, the amount to be deposited by the tenant during the continuation of the suit is required to be deposited in the court where the suit is filed failing which the court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 after the first hearing of the suit cannot be taken into consideration. 54. The provisions under Order XV Rule 5(2) provides a locus poenitentiae to the defaulting tenant to make a representation, which must be made within ten days of the first hearing or within a week from the date of accrual of rent as the case may be, and if the representation is not made within the specified time the court has no jurisdiction to consider a time barred representation or condone the delay or extend time. Apart from the aforementioned provision of filing a representation there is no provision wherein exemption can be claimed from complying the conditions under Order XV Rule 5.” 16. In this view of the matter, the order of remand that has been passed by the Revisional Court can hardly be faulted. 17. In the result, this petition fails and is dismissed. 18. There shall be no order as to costs.