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2022 DIGILAW 465 (ALL)

Radhe Shyam Chaurasiya v. Babita

2022-03-30

NEERAJ TIWARI

body2022
JUDGMENT : Neeraj Tiwari, J. Heard learned counsel for the revisionists and Sri Harsh Narayan Singh, learned counsel for the opposite party. 2. Present revision has been filed challenging the impugned order dated 3.11.2021 passed by the Additional Session Judge, Court No. 1, Banda in SCC No. 3 of 2019 (Smt. Babita v. Radhe Shyam Chaurasiya). 3. Learned counsel for the revisionist submitted that revisionist No. 1 is never the tenant of opposite party, whereas tenancy is with the revisionist No. 2 through her husband since 1989. After institution of Suit No. 3 of 2019, opposite party has filed written statement denying the tenancy of revisionist No. 1, but accepted the tenancy of revisionist No. 2. During the pendency of suit proceedings, opposite party has filed an application under Order XV Rule 5 of Code of Civil Procedure (in short C.P.C.) on 5.1.2021 to struck off the defence, which was replied by the revisionists-defendants on 2.2.2021. In its reply, it is stated that revisionist No. 1 is never the tenant and revisionist No. 2 is shown to be sub-tenant, against whom, no rent is claimed, therefore, both are not liable to pay rent as required under Order XV Rule 5 of C.P.C.. Further, revisionist No. 2 is continuously tried to pay rent, but the same was not accepted by the opposite party, therefore, revisionist No. 2 sent the rent of shop in question through post office on 30.4.2019. He also stated that revisionist No. 2 paid the rent of 32 months from 13.2.2015 to 13.10.2017. Lastly, he submitted that under such facts and circumstances, application has wrongly been allowed and order is bad in law and liable to be set aside. 4. Per contra, Sri Harsh Narayan Singh, learned counsel for the opposite party submitted that both the defendants-revisionists are tenant of shop in question and taking contrary view. On one hand, they are saying that they are not tenant and on the other hand, it is accepted by revisionist No. 2 that she has deposited rent from time to time. He next submitted that in case, revisionist No. 1 is not the tenant, he must file an affidavit to this effect before the Court below with the specific averment that his name may be deleted from the array of the parties and he is only visitor at the shop of revisionist No. 2, who is original tenant. He next submitted that in case, revisionist No. 1 is not the tenant, he must file an affidavit to this effect before the Court below with the specific averment that his name may be deleted from the array of the parties and he is only visitor at the shop of revisionist No. 2, who is original tenant. He further submitted that now it is admitted by the revisionist No. 2 that she is tenant. Further, from the pleadings of this revision as well as objection filed to the application under Order XV Rule 5 of C.P.C., it is admitted by the revisionist No. 1 that he was not the tenant, therefore, he has not paid rent and revisionist No. 2 is tenant, but never deposited the rent as required under provision of Order XV Rule 5 of C.P.C. Therefore, there is no illegality or irregularity in allowing the application filed under Order XV Rule 5 C.P.C. 5. In support of this contention, he placed reliance upon the judgments of this Court in the cases of Maya Devi another v. Vipin Kumar Kushwaha and another passed in S.C.C. Revision No. 489 of 2014 decided on 26.8.2016, State Bank of India, City Branch Pandey Hata, Thru. its Branch Manager and another v. Ram Niwas Verma and others, 2018 (127) ALR 362 and Gaya Prasad v. Thakur Krishna Chandra Ji Maharaj Virajman Mandir Bag Beniram and another, 2018 (127) ALR 104. 6. I have considered the rival submissions advanced by the learned counsel for the parties and perused the provision of Order XV Rule 5 of C.P.C. as well as judgments of this Court. Order XV Rule 5 of C.P.C. Provides as follows : ''5. Striking of defence for failure to deposit admitted rent, etc. 6. I have considered the rival submissions advanced by the learned counsel for the parties and perused the provision of Order XV Rule 5 of C.P.C. as well as judgments of this Court. Order XV Rule 5 of C.P.C. Provides as follows : ''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. The first part deals with the deposit of the 'entire amount admitted by him to be due' together with interest at or before the first hearing of the suit. The second part deals with the deposit of 'monthly amount due' which has to be made throughout the continuation of the suit. So far as any amount deposited prior to institution of the suit, may be adjusted against the arrears, if any such application is filed. Whereas second part is concerned, it is mandatory requirement to deposit the rent before the Court concerned, where the suit is instituted. In the objection dated 2.2.2021 filed to the application under Order XV Rule 5 of C.P.C as well as affidavit filed before the Court, it is accepted by the revisionist No. 2 that no rent has been paid by her before the Court concerned after first hearing of the suit. 8. This Court in the matter of Maya Devi (Supra) has taken specific view that in case of denial of tenancy, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week. 8. This Court in the matter of Maya Devi (Supra) has taken specific view that in case of denial of tenancy, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week. Relevant paragraph of the said judgment is being quoted hereinbelow : ''In the aforesaid case it was held that where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made in spite of the fact he admits any amount to be due or not.'' 9. In the matter of Gaya Prasad (Supra), Court has taken the view that rent is required to be deposited in compliance of provisions of Order XV Rule 5 of C.P.C. Relevant paragraph of the said judgment is being quoted hereinbelow : ''Default in payment of rent is admitted and stands proved on record inasmuch as according to own case of the defendant-petitioner he has not paid rent after 4.8.1999. It is also not disputed that the rent has not been deposited in compliance to the provisions of Order XV Rule 5 C.P.C. Consequently, his defense was also struck off. The order striking off the defense, therefore, also does not suffer from any manifest error of law.'' 10. In the matter of State Bank of India, City Branch Pandey Hata (Supra), Court has again taken the same view that rent is not deposited by the tenant, therefore, there is no illegality in striking off the defence. Relevant paragraph of the said judgment is being quoted hereinbelow : ''Considering the admitted facts of the case that the defendants-petitioners have neither disputed the arrears of rent on the first date of hearing nor paid monthly rent and as such protection of order XV Rule 5 C.P.C. was not available to him. Consequently, the Court below has not committed any error of law in allowing the application 37Ga and striking off the defence of the defendants-petitioners/tenants. Consequently, the Court below has not committed any error of law in allowing the application 37Ga and striking off the defence of the defendants-petitioners/tenants. So far as the rejection of application 50Ga is concerned, I find that as per statement made by learned counsel for the plaintiffs-respondents before this Court and not disputed by learned counsel for the defendants-petitioners, the date 8.2.2018 is fixed before the Court below for arguments. Therefore, I find it appropriate to request the Court below to decide the aforesaid SCC Suit No. 05 of 2016 (Ram Niwas Verma and others v. State Bank of India and another) in accordance with law, expeditiously, preferably within eight weeks from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties.'' 11. From perusal of Order XV Rule 5 of C.P.C., it is apparently clear that any deposit made prior to first appearance in SCC suit may be adjusted for arrears of rent due upon filing an application, but after institution of suit, it is mandatory requirement to deposit rent before the Court, where the suit is instituted. Once it is not disputed that rent has not been deposited before the Court concerned, where the suit is instituted, there is no option before the Court to struck off the defence as provided under the provisions of Order XV Rule 5 of C.P.C. 12. So far as present case is concerned, there is admission on the part of revisionist No. 2 that she has paid rent from time to time and she is tenant. She also admitted that she has never paid rent before the Court concerned after first hearing of the suit as required under Order 5 Rule 15 of C.P.C. 13. Therefore, in light of facts of the case as well as law laid down by this Court from time to time, there is no illegality or irregularity and Court has rightly struck off the defence of revisionists. Revision lacks merit and is, accordingly, dismissed. No order as to costs.