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2024 DIGILAW 2383 (ALL)

Mahmood Hasan v. Zakir Hussain

2024-11-21

AJIT KUMAR

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JUDGMENT : Ajit Kumar,J. 1. Heard Shri Mahboob Ahmad Siddiqui, learned Advocate appearing for petitioners and Shri Bhanu Bhushan Jauhari, learned Advocate appearing for respondents. 2. By means of this petition filed under Article 227 of the Constitution, petitioners have questioned the judgment and decree passed by Trial Judge dismissing the suit on the score of sufficient deposits made under Section 20 (4) as prescribed for under Act No. 13 of 1972. The said judgment has come to be affirmed in the court sitting in revision. 3. The main submission advanced by learned counsel appearing for petitioners is that since petitioners failed to make deposit under Order 15 Rule 5 CPC, therefore, they would not be permitted to avail the benefit under Section 20 (4) of the Act No. 13 of 1972. In support of his submissions, learned Advocate appearing for petitioners has relied upon two authorities of this Court one in the case of Ram Prakash Jaiswal Vs. Rajwati and others decided on 28.08.2012 in Civil Revision No. 48 of 2012; 2012 3 ARC 528 and the other in the case of Mohd. Sayeed and others Vs. Shahanshah Alam and another 2007 68 AllLR 860 4. Per contra it is argued by Shri Bhanu Bhushan Jauhari, learned Advocate appearing for respondents that not only the proper deposit was made under Section 20 (4) of the Act No. 13 of 1972 through tender on the first date of hearing but even subsequently on account of certain default in payment of rent when defence was likely to be struck off, the entire arrears were cleared and court by its order passed in that regard entertained the defence of the tenant. He submits that findings qua factum of deposits under Section 20 (4) could not be assailed for the reason that deposit of tender was admitted to petitioners, in as much as the subsequent deposits were also accepted by the petitioners. 5. Having heard learned counsel for respective parties and having perused the record, the sole point for consideration arises in this case for the Court is as to whether default if any made for the second part of order 15 Rule 5 CPC and later making the deficiency good, would amount in any manner violation of Order 20 Rule 4 CPC so as to deny statutory benefit to the tenant. From the findings as it has come to be returned vide issue No. 4 by the Trial Judge, I find that order 15 Rule 5 CPC compliance has subsequently been made and the defence was entertained. This finding part has not been assailed as such except for the fact that there was certain default in deposits of regular rent. In my considered view, if second part deposit under Order 15 rule 5 is made then it cannot be said to be a lacuna hitting at the root of the deposit made under Section 20 (4). Coming to the question of deposit made under Section 20 (4), it is admitted to the petitioners, so also it has been decided, that deposit was made vide proper tender which detailed out not only arrears of rent between the period of 01.07.2008 and 30.09.2011 but also 9% interest, house tax, water tax, Advocate fee, clerk fee, and miscellaneous fee and this has been brought on record by the petitioner himself. 6. So far the authority relied by learned counsel for petitioner are concerned, in none of the authorities, I find that the issue qua deficit in deposit made under Section 20 (4) has been considered. In one case in the matter of Ram Prakash Jaiswal (supra) the Court went to consider issue of Order 15 Rule 5 which was germane in that case but not in the present case and hence, the authority is distinguishable on facts. Insofar as the second authority in the case of Mohd. Sayeed and others (supra) is concerned, I find that in this case the Court has held that reading down Section 20 (4) with Order 15 Rule 5, the tenant was liable to be evicted. However, in paragraph-18 which is relevant paragraph it is not deliberated/ discussed as to whether the deposits of Rs. 1900 on the relevant date, was on the date of first hearing or prior to that or as to whether the deposit did not count for various heads prescribed under Section 20 (4) of the Act No. 13 of 1972. His Lordship, with utmost respect, I find, to have referred to another authority of this Court in the case of Shree Ram Agarwal Vs. His Lordship, with utmost respect, I find, to have referred to another authority of this Court in the case of Shree Ram Agarwal Vs. Sheela Devi but how that authority has attracted to the facts of that case has not been discussed except holding that reading down Section 20 (4) with order 15 Rule 5, the suit for eviction deserved to be decreed. 7. The principle of judicial precedent is firstly to see that the relevant issue is considered and decided in a case reliance upon which has been placed. It is well said that a judgment is what it decides and, therefore, it is repeatedly held by this Court as well as by Supreme Court that the judgments are not theories of law to be made applicable to every case. It depends upon facts to facts and setting of fact of a particular case. In none of the authorities cited before me the issue qua sufficiency of deposits made under Section 20 (4) has been discussed, nor decided and hence, on the principles of law of precedents even if it is cited for the reason that it reads down two provisions together and orders eviction of tenant, it cannot be said to be binding upon me in view of principle of law of precedent as discussed above. 8. Further I find that in the case of Pt. Rishikesh v. Salma Begum , (1995) 4 SCC 718 , the Court has held that the two provisions operate into different fields and distant and separate provisions. Vide paragraph 23 it has been held thus: "23. The contention that Section 20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provides procedure for payment of the arrears "on the first date of hearing of the suit" and if the tenant deposited the arrears, the court has been given power to relieve the tenant against the liability for eviction on that ground and Order 15, Rule 5 provides discriminatory procedure offending Article 14 needs no close scrutiny. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his conduct of default and to avail the benefit of avoiding decree for eviction under the Rent Control Act. the jurisdiction of the Small Cause Court in that behalf was expressly taken out. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his conduct of default and to avail the benefit of avoiding decree for eviction under the Rent Control Act. the jurisdiction of the Small Cause Court in that behalf was expressly taken out. The further contention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in not depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to contest suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is untenable.Exercising the discretionary relief and considering the previous conduct of the tenant and the mitigating circumstances, if any, the Court may, on given facts, findings that the tenant committed bona fide mistake in depositing the rent, direct him to deposit the same. Therefore, they are treated as a closs. The dispute of tenancy and right to adjudication thereon also stands as a class. The tenant in default at a suit in the Court of Small Causes is given right to contest the suit subject to his paying the admitted rent. it is a condition precedent. All those alike. There exists discernible differentia between two classes. The only class of tenants who commit default in payment of admitted rent after an order has been passed by the court, alone are disabled to contest the suit by striking off defence due to his recalcitrant attitude in committing further default in payment of the rent. The nexus is pregnant with legislative wisdom to protect the landlord from hardship. Order 15, Rule 5 gives a right to the plaintiff to make an application to this Court. The Court after considering the respective contentions and circumstances would pass an order directing the tenant to continue to pay the admitted rent as a condition to contest the suit. On his committing default, the defence will be struck off. The classification is based on intelligible differentia. The procedure, therefore, is consisted with the just and fair procedure to mitigate the hardship to the landlord and to prevent unfair advantage of delaying the disposal of the suit by the tenant. On his committing default, the defence will be struck off. The classification is based on intelligible differentia. The procedure, therefore, is consisted with the just and fair procedure to mitigate the hardship to the landlord and to prevent unfair advantage of delaying the disposal of the suit by the tenant. The procedure, therefore, is neither discriminatory nor arbitrary nor capricious but one which is judicious." (emphasis added) 9. Again in the case of Ashok Kumar v. Rishi Ram , (2002) 5 SCC 641, the Court vide paragraph 8 has held thus: "Rule 1 of Order 5 speaks of issue of summons. When a suit has been duly instituted, a summons may be issued to the defendnat to appear and answer the claim on a day specified therein. Rule 2 thereof enjoins that the summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Rule 5 of Order 5 says that the court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issued only, or for the final disposal of the suit which shall be noted in the summons. However, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit. It may be apt to notice here that sub-section (3) of Section 20 of the Act was deleted and in U.P. Civil Laws (Amendment) Act, 1972 with effect from 20-9-1972 and Rule 5 was inserted in Order 15 of the CIVIL PROCEDURE CODE which deals with disposal of the suit at the first hearing. Explanation 1 to Rule 5 of Order 15 defines the expression " first hearing" to mean 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. But the said expression, as noticed above, is defined in clause (a) of the Explanation to sub-section (4) of Section 20. But the said expression, as noticed above, is defined in clause (a) of the Explanation to sub-section (4) of Section 20. Section 38 of the U.P. Act says that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act or in the Code of Civil Procedure, therefore the definition contained in clause (a) of the Explanation to sub-section (4) of Section 20 of the Act will prevail over the definition contained in Rule 5 of Order 15 of the Code of Civil Procedure as applicable to the State of U.P. It is too evident to miss that in contradistinction to the "filing of written statement" mentioned in the definition of the said expression contained in Rule 5 of Order 15, the language employed in clause (a) of the Explanation of Section 20(4) of the U.P. Act, refers to " the first date for any step or proceeding mentioned in the summons served on the defendant". In our view those words mean the first date when the court proposes to apply its mind to identify the contoversy in the suit and that stage arises after the defendant is afforded an opportunity to file his written statement. The controversy is no longer res integra. The aforementioned provisions fell for consideration of a three-Judge Bench of this Court in Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993) 4 SCC 406 . The Bench laid down as follows: ( SCC . 412 para 13). (emphasis added) 10. Thus, for the discussions made above, I do not find the findings returned by the Trial Judge affirmed in revision to be, in any manner, perverse or that judgment of the Court sitting in revision in any manner vitiated for any manifest error which may warrant interference in exercise of its superintendence /supervisory jurisdiction under Article 227 of the Constitution. 11. Petition fails and is accordingly dismissed. 12. However, it is clarified that the judgment will not come in the way of the petitioners availing remedy under the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021, available if any.