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2024 DIGILAW 1780 (ALL)

Deepak Kumar Gupta v. Ramakant Dixit

2024-07-31

SARAL SRIVASTAVA

body2024
JUDGMENT : Hon'ble Saral Srivastava, J.-Heard Sri Manish Tandon, learned counsel for the petitioners, and Sri Himanshu Raghav Pandey, learned counsel for the respondent. 2. The petitioners are tenants and have filed the present petition under Article 227 of the Constitution of India assailing the order dated 20.2.2019 passed by the Judge Small Causes Court, Kanpur Nagar in S.C.C. Case No. 225 of 2009 by which he has allowed the application 30-Ga of the respondent/landlord and struck off the defence of the petitioners and order dated 15.2.2021 passed by the Additional District Judge/F.T.C. (created by 14th Finance Commission), Kanpur Nagar dismissing the S.C.C. Revision No. 24 of 2019 preferred by the petitioners against the order dated 20.2.2019. 3. The facts in brief are that respondent/landlord instituted S.C.C. Case No. 225 of 2009 for eviction of the petitioners from house No. 15/280 Civil Lines, Kanpur Nagar (hereinafter referred to as 'suit property') on the ground of default of payment in rent. In the said case, respondent/landlord filed an application 30-Ga under Order XV Rule V of C.P.C. contending inter alia that petitioners have defaulted in payment of rent due in each month, therefore, the defence of the petitioners be struck off. 4. The petitioners filed a reply to the application 30-Ga contending inter alia that petitioners have not defaulted in payment of rent and in fact, they have made excess payment of rent, therefore, the amount paid alongwith 9% interest in excess is liable to be adjusted towards monthly payment. It is pertinent to note that petitioners have deposited Rs. 8675/- by tender 35-Ga on 27.7.2010 and had filed a written statement on 28.7.2010. 5. The Trial Court by order dated 24.11.2012 rejected the application 30-Ga of the respondent by recording a finding that petitioners had deposited the excess amount under Order XV Rule V of C.P.C., therefore, the amount which has been deposited in excess is liable to be adjusted towards monthly rent. 6. Against the order dated 24.11.2012, the respondent/landlord preferred S.C.C. Revision No. 1 of 2013 which was allowed by the Revisional Court by order dated 28.11.2013 by recording a finding that the Trial Court has failed to consider the Explanation-3 to Order XV Rule V of C.P.C. and accordingly, remanded the matter to the Trial Court to decide the application 30-Ga afresh. 7. 7. After remand, the Trial Court by order 20.2.2019 allowed the application 30-Ga of the respondent holding that since petitioners have defaulted in payment of monthly rent and did not file any application seeking leave of the Court to deposit the rent, therefore, petitioners have defaulted in payment of rent. Consequently, the Trial Court found that the petitioners had failed to comply with the requirement of Order XV Rule V of C.P.C. The Trial Court struck off the defence of the petitioners and allowed the application 30-Ga of the respondent. 8. The petitioners, thereafter, preferred S.C.C. Revision No. 24 of 2019 which was also dismissed by the Revisional Court by order dated 15.2.2021 by upholding the order of the Trial Court dated 20.2.2019. 9. Challenging the aforesaid order, learned counsel for the petitioners has contended that the admitted rent of the suit property is Rs. 16/- per month, and as per the plaint case, the monthly rent was due for the period from 1.1.1980 to 30.4.2009 i.e. about 340 months rent, and the total rent for the said period comes to Rs. 5,440/-. It is contended that the petitioners have already deposited Rs. 8675/- on 27.7.2010, therefore, the rent deposited by the petitioners is more than the actual rent/amount that they were supposed to deposit on the first date of hearing as contemplated under Order XV Rule V of C.P.C. 10. It is further submitted that the excess amount is to be adjusted towards monthly rent and if that is adjusted, there is no delay or default in payment of monthly rent. Accordingly, it is submitted that the subordinate Courts have committed a manifest error of law and have misinterpreted Order XV Rule V of C.P.C. in allowing the application 30-Ga of the respondent, and thus, have committed jurisdictional error and manifest illegality in passing the order on application 30-Ga of the respondent. 11. It is further submitted that the consequence of striking off the defence of the petitioners is penal, therefore, the power under Order XV Rule V of C.P.C. is to be exercised judicially and not capriciously, and it is not a case where subordinate Court ought to have exercised the power under Order XV Rule V of C.P.C. to strike off the defence of the petitioners. In support of the aforesaid submission, learned counsel for the petitioners has placed reliance upon the following judgments : (i) Bimal Chand Jain v. Gopal Agarwal, 1981 ARC 463; (ii) Kedar Nath v. Waqf Sheikh Abdullah Charitable Madursa and others, 2016(6) ADJ 24 ; (iii) Dina Nath (D) by LRs. and another v. Subhash Chand Saini and others, 2019 (3) ARC 854; (iv) Shailendra Sharma and another v. Dr. Amit Bansal, 2017(5) ADJ 239 . 12. Per contra, learned counsel for the respondent would contend that perusal of Explanation 3 to Order XV Rule (1) of C.P.C. discloses that it mandates the tenant to deposit rent every month, therefore, even if the tenant has deposited the rent in excess, the excess amount would not be liable to be adjusted in payment of rent which he is liable to pay month to month. It is submitted that it is admitted that the petitioner/tenant has not deposited monthly rent as contemplated in Explanation 3 to Order XV Rule V (1) of C.P.C., therefore, there is non-compliance with the statutory requirement of Order XV Rule V(1) of C.P.C. and thus, subordinate Courts have not committed any illegality or jurisdictional error in striking off the defence of the petitioners. 13. It is further submitted that in the present case, petitioners did not file any representation as contemplated under Order XV Rule V(2), and in such view of the fact, the subordinate Courts have not committed any illegality in striking off the defence of the petitioners. 14. In support of the aforesaid submission, learned counsel for the respondent has placed reliance upon the following judgments : (i) Satya Kumari Kamthan v. Noor Ahmad and others, 1990 (0) SC 239; (ii) Haider Abbas v. Additional District Judge and others, 2006(1) ADJ 197 (DB) (LB). 15. I have considered the rival submissions of learned counsel for the parties and perused the record. 16. The facts as emanate from the record are that the respondent has instituted S.C.C. Case No. 225 of 2009 for eviction against the petitioner/tenant on the ground of default in payment of rent. As per the plaint case, the admitted rent of the suit property was Rs. 16/- per month and the respondent has claimed arrears of rent of the suit property for the period from 1.1.1980 to 30.4.2009 i.e. the arrears of rent of about 340 months which comes to Rs. 5440/-. 17. As per the plaint case, the admitted rent of the suit property was Rs. 16/- per month and the respondent has claimed arrears of rent of the suit property for the period from 1.1.1980 to 30.4.2009 i.e. the arrears of rent of about 340 months which comes to Rs. 5440/-. 17. The petitioner in this case admittedly deposited Rs. 8675/- on 27.7.2010 by tender 35-Ga, therefore, it is manifest that the petitioners have deposited excess amount than what had been demanded by the respondent. It is also not disputed that the petitioners, thereafter, did not deposit the month-to-month rent. 18. Now, the question that crops up before the Court is whether the excess amount deposited by the petitioners is liable to be adjusted towards month-to-month rent which they are liable to pay to save them from the rigour of Order XV Rule V of C.P.C. In this respect, it will be relevant to refer to the judgment of the Apex Court in the case of Bimal Chand Jain (supra) where the Apex Court has considered the object and the scope of Order XV Rule V of C.P.C. Paragraph 6 of the said judgment is reproduced herein below : ''6. It seems to us on a comprehensive understanding of Rule 5 of Order XV that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine percent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, ''the Court may subject to the provisions of sub-rule (2) strike off his defence''. We shall presently come to what this means. Sub-rule (2) obliges the Court, before making an order for striking off the defence to consider any representation made by the defendant on that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the Court against his defence being struck off. We shall presently come to what this means. Sub-rule (2) obliges the Court, before making an order for striking off the defence to consider any representation made by the defendant on that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the Court against his defence being struck off. If a representation is made the Court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred, there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the Court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the Court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the Court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the Court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word ''may'' in sub-rule (1) merely vests power in the Court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order XV.'' 19. This Court in the case of Kedar Nath (supra) also held that the power under Order XV Rule V of C.P.C. is discretionary and the Court is not bound to strike off the defence in every case. This Court in the case of Kedar Nath (supra) also held that the power under Order XV Rule V of C.P.C. is discretionary and the Court is not bound to strike off the defence in every case. Paragraph 16 of the said judgment relevant in the facts of the present case is reproduced herein below : ''16. 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 v. Premier Precisions Tools Manufacturing (P). Ltd., 1996 (1) ARC 62; Bhawani Vastrya Bhandan v. Smt. Sahodra Devi, 1996 (2) ARC 406.'' 20. In the case of Dina Nath (supra), the Apex Court was considering the question whether the power vested with the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 is discretionary and has been judicially exercised in the facts of the present case in striking off the defence of the appellant (tenant) in the eviction proceeding. 21. The Apex Court held that the power under Section 15(7) of the Delhi Rent Control Act, 1958 is to be exercised judicially and with circumspection depending upon the facts of each case, and the Court is not bound to strike out the defence in cases of default in payment of rent in every case. Placing reliance upon the said proposition of law, the Court held that since the appellant/tenant had made excess payment of rent which is liable to be adjusted in monthly rent, therefore, there was no default in making payment. 22. In the case of Shailendra Sharma (supra), this Court in paragraph 29 has formulated the legal proposition that the Court should apply while examining the question of striking off the defence of the respondent/tenant for the default in making deposits. Paragraph 29 of the said judgment is reproduced herein below : ''29. 22. In the case of Shailendra Sharma (supra), this Court in paragraph 29 has formulated the legal proposition that the Court should apply while examining the question of striking off the defence of the respondent/tenant for the default in making deposits. Paragraph 29 of the said judgment is reproduced herein below : ''29. From the decisions noticed herein above as also on a careful perusal of the provisions of Order 15 Rule 5 CPC, the legal principles which emerge, and ought to be applied while examining as to whether the defence of a tenant ought to be struck off or not on account of default in making deposit, are as follows: (a) The power to strike off defence vests in a Court on default of the defendant either in depositing the admitted amount due with prescribed interest on the first date of hearing of the suit or in making timely monthly deposit throughout the continuance of the suit. The power to strike off defence can be exercised at any stage of the suit, upon failure to make timely monthly deposit, irrespective of whether the parties have led their evidence or not. Though the stage at which the suit stands may be a relevant consideration whether to exercise the discretionary power to strike off defence or not. (b) The power to strike off defence is not to be exercised by treating it to be a statutory mandate. Since the exercise of power inflicts severe penal consequences, the Court has discretion not to strike off the defence if on the facts it finds good reason for not doing so. Therefore, the power should be exercised after consideration of the facts and circumstances appearing on the record and, in the event of there being a representation, after considering the representation. (c) The representation must not necessarily be a separate representation seeking condonation of the delay in making deposit, but it may be by way of a reply to an application moved by the plaintiff for striking off defence. (d) Before striking off defence, the Court has to examine the record to find out whether any excess amount has already been deposited or not and if so, then whether upon adjustment of the said amount there would still be a shortfall in deposit of the amount required to be deposited under the said provision.'' 23. (d) Before striking off defence, the Court has to examine the record to find out whether any excess amount has already been deposited or not and if so, then whether upon adjustment of the said amount there would still be a shortfall in deposit of the amount required to be deposited under the said provision.'' 23. From the judgments, referred to above, it is clear that the Courts have postulated that the power under Order XV Rule V of C.P.C. is discretionary and the Court is not bound to exercise power in every case. The power conferred under Order XV Rule V of C.P.C. is penal and bears serious consequences against the tenant by striking out the defence of the tenant in case of default in payment of rent. Therefore, the power under Order XV Rule V of C.P.C. is to be exercised with judicious approach and with circumspection to subserve the interest of justice. In the light of aforesaid judgments, this Court now proceeds to consider the facts of the present case. 24. In the present case, admittedly the rent of the suit property is Rs. 16/- per month. The respondent/landlord has claimed arrears of rent for the period from 1.1.1980 to 30.4.2009 which comes to Rs. 5440/-. The petitioner/tenant has deposited Rs. 8675/- by tender 35-Ga on 27.7.2010. The application under Order XV Rule V was filed on 5.5.2012. Thus, on the date of filing of the application by the respondent under Order XV Rule V of C.P.C., there was excess payment of rent since according to the petitioners, the actual amount claimed by the respondent/landlord was Rs. 5440/- whereas the petitioner had deposited Rs. 8675/-, therefore, petitioner had deposited Rs. 3235/- in excess. 25. Thus, on the date of filing of the application under Order XV Rule V by the respondent, there was no default in payment of rent inasmuch as if the excess amount paid by the petitioner is adjusted towards monthly rent, the petitioner has not defaulted in payment of rent. 26. So far as the judgments relied upon by the learned counsel for the respondent are concerned, they do not apply to the facts of the present case. 27. 26. So far as the judgments relied upon by the learned counsel for the respondent are concerned, they do not apply to the facts of the present case. 27. In the case of Haider Abbas (supra), the Court was called upon to consider the question ''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 XV, Rule 5 C.P.C.'' and the Court was not considering the issue whether any amount deposited by the tenant on the first date of hearing is liable to be adjusted towards monthly rent which he is liable to pay. Therefore, this judgment is of no help to the respondent. 28. So far as the judgment of Apex Court in the case of Satya Kumari Kamthan (supra) is concerned, the said judgment is also of no help to the respondent inasmuch as the petitioner had filed an objection to the application of the respondent under Order XV Rule V of C.P.C., and said objection is treated to be a representation as contemplated under sub-rule (2) of Rule V Order XV of C.P.C. In such a view of the fact, this judgment is also of no help to the respondent. 29. Thus, for the reasons given above, this Court is of the view that the Subordinate Courts have committed illegality in concluding that the petitioners have defaulted in payment of rent because they did not pay monthly rent as and when it was due nor they filed any application of time extension seeking permission to deposit the rent. Accordingly, the impugned orders passed by the subordinate Courts cannot be sustained in law and are hereby set aside. The writ petition is allowed without any order as to costs. The matter is remanded to the Judge Small Causes Court, Kanpur Nagar to decide the S.C.C. Suit No. 225 of 2009 pending before him expeditiously, preferably within a period of eight months from the date of production of certified copy of this order without granting any unnecessary adjournments to either of the parties, if there is no legal impediment in deciding the aforesaid case. 30. 30. In case any adjournment is inevitable, the Court concerned may grant the same by imposing a heavy cost which may not be less than Rs. 1,000/-.