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2022 DIGILAW 441 (ALL)

Satya Narayan Bhagat v. Pitambar Dutt Pandey

2022-03-25

NEERAJ TIWARI

body2022
JUDGMENT : Neeraj Tiwari, J. 1. Heard Sri N.K. Chaturvedi, learned counsel for revisionist and Sri Hausihla Prasad Mishra, learned counsel for respondents. 2. Learned counsel for revisionist submitted at the bar that he does want to press the revision against order dated 4.12.2021 passed by Additional District and Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 3, Gorakhpur and he may be given liberty to file fresh revision against order dated 4.12.2021, for which Sri Hausihla Prasad Mishra, learned counsel for respondents has no objection. 3. Accordingly, present revision stands dismissed against order dated 4.12.2021 with the aforesaid liberty. 4. Learned counsel for the revisionist submitted that plaintiff/respondents have filed SCC Suit No. 10/2017 for eviction, arrear of rent and damages on 24.8.2017 in which defendant/revisionist has filed written statement on 28.3.2003 and taken specific plea that he had already deposited the entire due amount prior to filing of suit through different mode. Later on, after refusal of receiving of rent, he had also instituted a case under Section 30(1) of U.P. Act No. 13 of 1972 and continuously depositing the rent amount there. He next submitted that plaintiff/respondents have filed application dated 3.3.2020 under Order XV Rule 5 CPC, which was numbered as Paper No. 33C to struck off defence, upon which, defendant/revisionist has filed objection dated 11.2.2021, which was numbered as Paper No. 36C. He next submitted that application of plaintiff/respondents was allowed and objection of defendant/revisionist rejected on the ground that in all eventuality, after institution of suit, he has required to deposit monthly rent before the Court, where the suit is pending and any deposit made under Section 30(1) of U.P. Act No. 13 of 1972 cannot be adjusted. He next submitted that impugned order is bad on two grounds; first of all, Order XV Rule 5 CPC is discretionary and secondly, the provisions should not be interpreted in a way that tenant should be trapped to be evicted. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Kedar Nath vs. Waqf Shekikh Abdullah Charitable Madursa and Others, 2016 (6) ADJ 24 . 5. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Kedar Nath vs. Waqf Shekikh Abdullah Charitable Madursa and Others, 2016 (6) ADJ 24 . 5. Learned counsel for the plaintiff/respondents submitted that from the perusal of Order XV Rule-5 CPC, it is apparent that it is not discretionary, but mandatory in nature, therefore, it is required on the part of defendant/revisionist to deposit entire monthly rent before the Court, where the suit is pending and any deposit made under Section 30(1) of U.P. Act No. 13 of 1972 cannot be adjusted to meet the requirement of Order XV Rule 5 of CPC. Court has rightly struck off the defence of the defendant/revisionist in lack of deposit of monthly rent before the Court, where the suit is pending. In support of his contention, he has placed reliance upon the judgments of this Court in the matter of Haider Abbas vs. Additional District Judge (Court No. 3), Allahabad and Others, 2006 (1) ADJ 197 (All) (DB), More Singh vs. Chandrika Prasad, 2016 (130) RD 90 , Krishna Kumar Gupta vs. Manoj Kumar Sahu, 2017 (7) ADJ 152 and Om Prakash Gupta vs. District Judge and Another, 2019 (2) JCLR 529 (All). He also submitted that judgment of Kedar Nath (supra) has not considered the earlier judgment of this Court in the matter of Haider Abbas (supra) and More Singh (supra). 6. I have considered the rival submissions made by learned counsel for the parties. Facts of the case are undisputed. Before proceeding to decide the issue, it would be useful to see the provisions of Order XV Rule 5 of CPC, U.P. Amendment, the same is being quoted below: ''5. Striking of defence for failure to deposit admitted rent, etc. 6. I have considered the rival submissions made by learned counsel for the parties. Facts of the case are undisputed. Before proceeding to decide the issue, it would be useful to see the provisions of Order XV Rule 5 of CPC, U.P. Amendment, the same is being quoted below: ''5. Striking of defence for failure to deposit admitted rent, etc. 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 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 any 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.'' 7. It is admitted position that defendant-revisionist has deposited the amount not before the Court, where the suit was instituted, but before another Court under the proceeding of Section 30(1) of U.P. Act No. 13 of 1972. Issue before this Court is as to whether any amount deposited under Section 30(1) of U.P. Act No. 13 of 1972 can be adjusted against the amount to be deposited before the Court in compliance of Order XV Rule 5 CPC during pendency of suit. In support of his contention, learned counsel for the defendant-revisionist has placed reliance upon judgment of this Court in the matter of Kedar Nath (supra), which was rendered after relying upon different judgments of Apex Court as well as this Court. Relevant paragraph of the said judgment is being quoted below: ''The provisions of Order XV Rule 5 is discretionary, the Court is not bound to strike off the defence in every case of mere technical or bona fide default. The provision should not be interpreted in such a way that the tenant should be trapped to be evicted. (Refer Vinod Chandra Kala vs. Premier Precisions Tools Manufacturing (P). Ltd. 1996 (1) ARC 62 and Bhawani Vastrya Bhandan vs. Smt. Sahodra Devi, 1996 (2) ARC 406).'' 8. The provision should not be interpreted in such a way that the tenant should be trapped to be evicted. (Refer Vinod Chandra Kala vs. Premier Precisions Tools Manufacturing (P). Ltd. 1996 (1) ARC 62 and Bhawani Vastrya Bhandan vs. Smt. Sahodra Devi, 1996 (2) ARC 406).'' 8. Earlier, there was conflict of view in judgments of Court on this point and matter was referred to Division Bench of this Court in the matter of Haider Abbas (supra) by framing the following questions: ''Whether the deposit made under Section 30(1) of U.P. Act No. 13 of 1972 after the date of service of summons of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Order XV Rule 5 CPC?'' 9. Division Bench, after considering in detail the provisions of Order XV Rule 5 of CPC and different judgments of Apex Court and this Court, has answered the same, which is as follows: ''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. 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 CPC and make the deposits strictly in accordance with the procedure contained therein. 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 CPC 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 CPC. ........................ We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the Act cannot be deducted.'' 10. Again, this issue came up before this Court in the matter of More Singh (supra) and this Court after considering the judgment of Division Bench of this Court in the matter of Haider Abbas (supra) and other judgments of Apex Court held as follows: ''It thus follows that while deposits made under Section 30, before the date of first hearing are to be adjusted but any rent deposited thereafter in proceeding under Section 30 would not enure to the benefit of the tenant for adjudging compliance of the provisions of Order XV, Rule 5 CPC.'' 11. This Court considered this issue in the matter of Krishna Kumar Gupta (supra) also and has taken very same view. This Court considered this issue in the matter of Krishna Kumar Gupta (supra) also and has taken very same view. Relevant paragraph of the said judgment is being quoted below: ''The difference between the two categories discussed herein above, apart from the stage at which they apply, is two fold: (a) in the first category the defendant is required to make a deposit of the admitted dues whereas in the second category, which relates to monthly deposits, whether he admits it to be due or not, the deposit has to be made on a monthly basis, at the admitted rate of rent, throughout the continuance of the suit and (b) in the first category the tenant can seek adjustment of the amount deposited under Section 30 of U.P. Act No. 13 of 1972 as well as the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him, whereas in the second category, which relates to monthly deposits, no such adjustment is permissible as would be clear from the difference between Explanation 2 and Explanation 3.'' 12. Once again this issue came up before this Court in the matter of Om Prakash Gupta (supra) and this Court after considering the different judgments including judgment of Division Bench of this Court in the matter of Haider Abbas (supra) as well as judgment of Single Bench of this Court in the matter of More Singh (supra), has held as follows: ''In the instant case, concededly, even after receipt of summons, monthly rent upto December 2012 was deposited by the tenant in proceedings under Section 30 (1) of the Act. It was only since January 2013 that he started depositing monthly rent in the instant suit. Consequently, the benefit of monthly rent deposited under Section 30 (1) after receipt of summons/filing of written statement i.e. 3.12.2010 upto December 2012 could not be extended to the defendant tenant while reckoning compliance of Order 15 Rule 5 CPC. There is no escape from the mischief of Order 15 Rule 5 CPC. The trial Court was justified in striking off the defence. The revisional Court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra). There is no escape from the mischief of Order 15 Rule 5 CPC. The trial Court was justified in striking off the defence. The revisional Court has committed a grave error of law in extending benefit of these deposits without considering the legal position laid down in Larger Bench judgment in Haidar Abbas (supra). In consequence and as a result of above discussion, the impugned order dated 13.5.2015 is quashed and the order passed by the trial Court dated 8.8.2014 is restored.'' 13. In light of different judgments discussed herein above, it is apparently clear that judgments of Haider Abbas (supra) and More Singh (supra) were delivered prior to judgment of Kedar Nath (supra), but while giving the judgment in the matter of Kedar Nath (supra), Court has not considered those judgments. Therefore, the said judgment is per incuriam and cannot be treated as precedent. 14. From perusal of Order XV Rule 5 of CPC, it is apparently clear that before first hearing of the suit proceeding, amount which is to be deposited is having two parts; first part is to deposit the entire amount admitted by the defendant together with interest thereon at the rate of nine per centum per annum as provided in Order XV Rule 5 of CPC and second part is, the amount either admitted or not to be deposited throughout the continuation of suit proceeding from month to month basis. About the first part, any amount deposited by any mode in accordance with law or deposited in proceeding under Section 30(1) of U.P. Act No. 13 of 1972 can be adjusted, but so far as second part is concerned, any such amount deposited under Section 30(1) of U.P. Act No. 13 of 1972, cannot be adjusted. It is always required on the part of defendant to deposit the same before the Court, where the suit is instituted. 15. So far as present case is concerned, there is no dispute of fact and it is admitted position that the revisionist-defendant has never deposited the amount, so due on month to month basis before the Court where the suit was instituted after first date of hearing. Therefore, in light of provisions of Order XV Rule 5 of CPC, ratio of law laid down by the Courts as well as discussion made herein above, no relief can be granted to the revisionist. 16. Therefore, in light of provisions of Order XV Rule 5 of CPC, ratio of law laid down by the Courts as well as discussion made herein above, no relief can be granted to the revisionist. 16. Accordingly, revision lacks merit and is dismissed. No order as to costs.