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2023 DIGILAW 467 (ALL)

Anoop Mehrishi v. Ashok Kumar Mishra

2023-02-16

J.J.MUNIR

body2023
JUDGMENT : 1. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887 is directed against an order of Mr. Devashish, Additional District Judge, Court No.10, Varanasi, sitting as the Judge, Small Cause Court dated 05.04.2022, striking off the tenants’ defence under Order XV Rule 5 of the Civil Procedure Code, 1908 (for short, ‘the Code’). 2. The plaintiff-respondent, Ashok Kumar Mishra, who shall hereinafter be referred to as ‘the landlord’, instituted S.C.C. Suit No. 5 of 2022 in the Court of the District Judge, Varanasi (sitting as the Judge, Small Cause Court) against the defendant-revisionists (for short, ‘the tenants’), seeking a decree for eviction of the tenants from the shop detailed at the foot of the plaint. In addition, a decree for recovery of arrears of rent to the tune of Rs.2,69,237/-for the period 02.04.2017 to 12.03.2020 was sought. A further sum of Rs. 32,013/-was claimed as mesne profits for the period 13.03.2020 to 08.07.2020. These claims apart mesne profits at the rate of Rs.8545/-per month were claimed pendente lite and future till delivery of actual physical possession to the landlord. The aforesaid suit was instituted by the landlord, seeking the tenants’ eviction from a shop admeasuring 350 square feet, situate in premises No. B-30/2A-3, Prafull Nagar Colony, Lanka, District Varanasi. 3. The tenants have put in their written statement dated 23.03.2021, denying the plaint allegations. In substance, the defence taken by the tenants is that though they entered the premises as tenants on a rent of Rs.5000/-per month and paid a sum of Rs.3,00,000/-as security in terms of a rent agreement dated 23.12.2008, but during the currency of the tenancy, parties have entered into a registered agreement to sell dated 22.06.2011, where the landlord has covenanted to sell the demised shop to the tenants for a total sale consideration of Rs.17,50,000/-. It is also the tenants’ defence that a sum of Rs.7,50,000/-has been accepted as earnest. It is also pleaded that the tenants have been delivered possession in part performance of the registered agreement to sell. The landlord has of his own given up his right to receive rent after the month of January, 2011, when he received it last. 4. It is also the tenants’ defence that a sum of Rs.7,50,000/-has been accepted as earnest. It is also pleaded that the tenants have been delivered possession in part performance of the registered agreement to sell. The landlord has of his own given up his right to receive rent after the month of January, 2011, when he received it last. 4. Pending the suit for eviction, the landlord moved an application under Order XV Rule 5 of the Code with a prayer that the tenants’ defence be struck off for non-compliance of the aforesaid mandatory provision of the law. The application was answered by the tenants through objections saying that there was an earlier unregistered agreement dated 22.02.2011, under which the landlord agreed to transfer the demised shop on the contracted price of Rs.17,50,000/-. It was also said by the tenants that a suit for specific performance being O.S. No. 1174 of 2014, Sarita Mehrishi vs. Ashok Kumar has been instituted, which is pending before the Court of competent jurisdiction. It was also raised as a defence to the plea for striking off the tenants’ defence that the tenants were in possession of the demised shop in part performance of the agreement to sell and not as tenants qua the said premises. 5. The Trial Court did not accept any of the contentions put forth by the tenants and struck off their defence. The Trial Court was of opinion that even if some advance was paid towards part price of a contracted sale, no adjustment could be made with regard to any advance so far as rent required to be deposited month by month during the pendency of the suit was concerned. 6. Heard Mr. Rahul Mishra, learned Counsel for the tenants in support of the motion to admit this revision to hearing and Mr. Atul Dayal, learned Senior Advocate assisted by Ms. Vaishali Sahu, learned Counsel appearing on behalf of the landlord. 7. It is not in dispute that the tenants entered the demised shop as such on an eleven month lease paying a security in the sum of Rs.3,00,000/-. No doubt, there appears to be first an unregistered agreement to sell dated 22.02.2011 and then a registered agreement dated 22.06.2011 executed by the landlord in favour of the tenants, relating to the demised shop. No doubt, there appears to be first an unregistered agreement to sell dated 22.02.2011 and then a registered agreement dated 22.06.2011 executed by the landlord in favour of the tenants, relating to the demised shop. The registered agreement dated 22.06.2011 mentions the various sums of money received by the landlord through bank instruments and in cash for receipts executed. 8. The registered agreement to sell settles the transaction for sale of the demised shop for a sale consideration of Rs.17,50,000/-. The agreement records the fact that a sum of Rs.7,50,000/-out of the agreed sale consideration has been received by the landlord from the tenants from time to time as per details mentioned in the document. There is, however, nothing in the registered agreement to sell that may show delivery of possession to the tenants in part performance, so as to alter character of the tenants' possession from tenancy possession into one held in part performance of the registered agreement to sell. Rather, in Paragraph No. 5 of the registered agreement, there is a recital to the following effect: ^^5- ;g fd ge ÁFke i{k us dqy etewy lV~Vk bdjkj&ukek fcyk dCTk gktk dks [kqc vPNh rjg ls iढ+ o iढ+okdj lqu o le> dj mlds vljkrks ls o[kwch okfdQ gksdj ;g pUnk dyek crjhd lV~Vk bdjkjukek fcyk dCtk eksvkfgnk c; cgd f}rh; i{k rgjhj dj fn;k fd lun jgs o oDr t#jr ij dke vkosA** (emphasis by Court) 9. The aforesaid recital shows that the agreement to sell expressly made it one which did not deliver possession to the tenants in part performance. Now, in the present suit, it is not for this Court to go into the rights of parties to seek specific performance of the registered agreement. The purpose of looking into this agreement is to find out as to what was the nature of the tenants' possession in the demised shop. The terms of the registered agreement unmistakably point to the fact that the tenants continue to occupy the demised shop in their character as tenants and do not hold possession in part performance of the registered agreement, delivered to them by the landlord, as they claim. The provisions of Order XV Rule 5 CPC as amended in their application to the State of Uttar Pradesh vide U.P. Act No. 57 of 1976 and Notification dated 10th February, 1981, read: “5. The provisions of Order XV Rule 5 CPC as amended in their application to the State of Uttar Pradesh vide U.P. Act No. 57 of 1976 and Notification dated 10th February, 1981, read: “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, 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 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 the security for such sum before he is allowed to withdraw the same.” 10. A bare reading of the provisions of Rule 5 of Order XV make it clear that there are two parts of the tenant’s obligation to deposit rent in Court in a case where the landlord sues the tenant for eviction, after determination of his lease, as also for recovery of rent and damages for use and occupation. The first part requires the tenant to deposit at or before the first hearing of the suit, the entire amount on account of rent, damage etc. admitted by him to be due together with interest thereon @ 9% per annum. The second part requires the tenant to deposit throughout the pendency of the suit, the monthly amount of rent within a week of its accrual, whether he admits it to be due or not. The Rule further provides that non-compliance of either of the two parts of sub-Rule (1) of Rule 5 of Order XV of the Code entitles the Court to strike off the tenant's defence. There is a distinction between the expression 'entire amount admitted by him to be due' in the first part of sub-Rule (1) of Rule 5 of Order XV of the Code and the expression 'monthly amount due', occurring in the second part of sub-Rule (1) of Rule 5 of Order XV. 11. There is a distinction between the expression 'entire amount admitted by him to be due' in the first part of sub-Rule (1) of Rule 5 of Order XV of the Code and the expression 'monthly amount due', occurring in the second part of sub-Rule (1) of Rule 5 of Order XV. 11. So far as deposit to be made on the first date of hearing is concerned, there are three kinds of adjustments that could be made. The first is of any sum of money paid by the tenant in taxes to a local authority in respect of the building on the lessor's account. The second is any amount paid to the lessor and acknowledged by him in writing and signed by him. The third class of money that can be adjusted is that deposited by the tenant in Court under Section 30 of U.P. Act No. 13 of 1972 (for short, 'the Act of 1972'). By contrast, in case of monthly deposits to be made, the only allowance that the Rule permits is with regard to taxes payable to the local authority in respect of the building on the landlord's account. No other sum of money can be adjusted against the tenant's obligation to deposit the monthly rent or damage for use and occupation during the course of the suit. 12. A Division Bench of this Court in Haider Abbas v. Additional District Judge and others, 2006 (1) ARC 341 considered the obligation of the tenant under the two parts of sub-Rule (1) of Rule 5 of Order XV of the Code and the issue whether adjustment of rent deposited under Section 30 of the Act of 1972 could be sought by the tenant. It has been held in Haider Abbas (supra), thus: “13. On a careful analysis of the provisions of order XV, Rule 5, C.P.C. we find that it is divided in two parts. 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. 14. 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. 14. Explanation 2 to Order XV, Rule 5(1), C.P.C. stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the 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 Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5(1) of Order XV, Rule 5, C.P.C. to mean 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. 15. What has to be noticed in Order XV, Rule 5, C.P.C. is that the Legislature while defining "monthly amount due" which has to be deposited during the continuation of the suit has deliberately excluded the deduction of any amount deposited under section 30 of the Act. We are, therefore, faced with a situation where the same Rule defines "entire amount admitted by him to be due" and "monthly income due" occurring in the first part and second part respectively of the Rules and while the former phrase stipulates the deduction of the amount deposited under section 30 of the Act, the second part omits to mention such a deduction. It has, therefore, to be inferred that the Legislature has, in its wisdom, deliberately made a provision for deduction of the deposit of the amount under section 30 of the Act only in respect of the amount to be deposited at or before the first date of hearing and not in respect of the monthly amount to be deposited throughout the continuation of the suit. This, coupled with the fact that both Explanation 2 and Explanation 3, referred to above provide "after making no other deduction except........." clearly leads us to no other conclusion except that only such deductions are to be made which have been specifically provided. The "monthly amount due" has to be construed in the manner provided for in Explanation 3 to Rule 5(1) of Order XV, C.P.C. and in no other manner. 37. We, therefore, upon an analysis of the provisions of Rule 5(1) of Order XV, C.P.C., 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.” 13. The question was examined again by this Court more recently in Krishna Kumar Gupta v. Manoj Kumar Sahu, (2017) 4 All LJ 127, a decision to which the Revisional Court has also alluded to. In Krishna Kumar Gupta (supra), it has been held: “11. 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 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 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 UP 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 and Explanation 3. 12. 12. One of the common features in the two categories, which is reflected by the use of words “admitted rate of rent” in both Explanation and Explanation of Order XV, Rule 5, C.P.C., is that there has to be an admitted jural relationship of lessor and lessee (landlord and tenant) between the plaintiff and defendant fortiori, if the relationship of landlord and tenant or lessor and lessee is not admitted by the defendant between the plaintiff and him, the provisions of Order XV, Rule 5, C.P.C. would not be applicable. In the case of Chandan Singh v. Shyam Sunder Agrawal, (2006) 64 ALR 673, this Court while dealing with the object of enacting the provisions of Order XV, Rule 5, C.P.C., observed as follows: “The idea of enactment of Order XV, Rule 5, C.P.C. is to compel the tenant to pay the rentat least at the rate he was paying earlier to the landlord notwithstanding the pendency of the litigation. Order XV, Rule 5, C.P.C. was enacted with view that the landlord may not have to wait till the final decision of the case to recover his rent. He should at least get the rent at the rate he was getting before the start of litigation and tenant may not enjoy the tenanted property without paying rent. The purport and object of Order XV, Rule 5, C.P.C. is to see that tenant does not get undue advantage by withholding the payment of rent or pay it at lesser rate than the one at which he was paying earlier on some lame excuse. Looking to the object which Order XV, Rule 5, C.P.C. seeks to achieve, literal interpretation to the word “admitted” would not serve the purpose and this Court is of the view that purposive approach of interpretation should be resorted to.” 14. Here, this Court finds that whatever sum of money was paid by the tenants to the landlord, was in respect of a completely different transaction relating to sale of the demised shop. It had nothing to do with the contract of tenancy. Even if it be assumed that the earnest of Rs. Here, this Court finds that whatever sum of money was paid by the tenants to the landlord, was in respect of a completely different transaction relating to sale of the demised shop. It had nothing to do with the contract of tenancy. Even if it be assumed that the earnest of Rs. 7.50 lacs recorded in the agreement to sell was to be adjusted against the arrears of rent, it could be adjusted against the tenants' obligation to deposit the outstandings on the first date of hearing only, if the tenants produced an acknowledgment in writing from the landlord accepting appropriation of the money received in respect of a different transaction towards the entire amount admitted by the tenants to be due, which the tenants were obliged to deposit on the first date of hearing. 15. So far as monthly deposit of rent within seven days of accrual is concerned, there could be no adjustment of any advance. Quite apart, it has figured in the order impugned that the tenants are pursuing their suit for specific performance against the landlord being Suit No. 1174 of 2014, which would hardly make allowance for any kind of adjustment, even against the entire amount admitted by the tenants to be due on account of rent etc. that had to be deposited on or before the first date of hearing. The Trial Court has opined that since there is no deposit made during the pendency of the suit on a monthly basis, there could be no escape from the consequences or the rigour of the Rule carried in sub-Rule (1) of Rule 5 of Order XV. 16. So far as the Court's discretion in accepting the tenants' representation, if made within ten days of the first date of hearing or the expiry of the week, as regard the monthly deposit of rent, the period of time would long be gone under both heads of liability for the Court to condone. Therefore, the action of the Court in holding the tenants' defence liable to be struck off, if not under the first part, decidedly under the second part, cannot be faulted. 17. Therefore, the action of the Court in holding the tenants' defence liable to be struck off, if not under the first part, decidedly under the second part, cannot be faulted. 17. Here, this Court must add that the much emphasized transformation of the character of the tenants' possession from that of a tenant into one of a man holding it in part performance of the registered agreement, has been noticed and rejected hereinbefore, with reference to the recitals carried in the registered agreement to sell. Any explanation, therefore, based upon ceasure of the tenants' liability to pay rent or to comply with the terms of Order XV Rule 5 of the Code cannot be accepted. 18. In the considered opinion of this Court, there is no force in this revision. It fails and is, accordingly, dismissed.