JUDGMENT Dilip Gupta, J.
1. The defendant No. 1 of SCC Suit No. 16 of 2005 has filed this petition for setting aside the judgment and order dated 27th October, 2006 passed by the learned Judge, Small Cause Courts, whereby the application filed by the plaintiff under Order XV Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') was allowed. The petitioner has also sought the quashing of the judgment and order dated 20th February, 2008 by which the Revision filed for setting aside the aforesaid judgment and order was dismissed.
2. The records of the writ petition indicate that the aforesaid SCC Suit No. 16 of 2005 had been filed by the plaintiff for eviction and recovery of arrears of rent. It was alleged that the rent for the period commencing from 1st November, 2003 was not paid as a result of which the plaintiff sent a notice under Section 106 of the Transfer of Property Act for determining the tenancy as well as for demanding the arrears of rent but as neither the possession of the premises was given to the plaintiff and nor the defendant paid the arrears of rent, the suit was filed claiming possession of the suit premises as also arrears of rent for the period commencing from 1st November, 2003. The suit was instituted on 11th May, 2005. The defendant put in appearance on 28th May, 2005 and the written statement was filed on 3rd September, 2005. The plaintiff moved an application under Order XV Rule 5 CPC on 18th January, 2006 for striking off the defence as the requirement of Order XV Rule 5 CPC had not been complied with. Defendant No. 1 filed a reply to the aforesaid application on 18th May, 2006 but did not comply with the requirements of Order XV Rule 5 CPC. The case taken by the defendant was that he was ready to pay the balance amount, if any, after adjusting the loan amount of Rs. 20,000/-. According to the defendant, the plaintiff took a loan of Rs. 20,000/- from him which loan was to be returned in the month of January, 2005 after adjusting the rent payable upto that period. There is no written agreement between the parties to the said effect and nor any rent receipts were filed for the said period. It is only on 18th October, 2006 that the defendant deposited a sum of Rs. 29,336/-. The learned Judge, Small Cause Courts allowed the application filed by the plaintiff who has been arrayed as respondent No. 1 in the present petition and the Revision filed for setting aside the aforesaid order was dismissed.
3. I have heard learned Counsel for the petitioner and have examined the materials available on record.
4. Learned Counsel for the petitioner submitted that defendant No. 1 did not admit that any amount was due as according to the said defendant the plaintiff had taken a loan of Rs. 20,000/- which was to be adjusted towards rent and the balance amount was to be paid only in the month of January, 2005. He, therefore, states that in such circumstances, the plaintiff was not required to make any deposits under Order XV Rule 5 CPC on the first date of hearing and in support of his contention he has placed reliance upon a Division Bench judgment of this Court in Kunwar Baldevji v. XIth Additional District Judge, Bulandshahr and Ors. 2003(3) AWC 2504.
5. In the present case it is not in dispute that on the first date of hearing the tenant did not deposit the entire amount admitted by him to be due together with the interest. It is also not in dispute that the monthly amount due was also not deposited within a week from the date of its accrual during the continuation of the suit and it is only on 18th October, 2006 that the defendant deposited a sum of Rs. 29,336/-.
6. In order to appreciate the controversy involved in this petition it would be necessary to place the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:
Order XV Rule 5 CPC Striking off defence for 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 cent 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 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.
(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.
7. On a careful analysis of the provisions of Order XV Rule 5 CPC it is seen 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.
8. It is, therefore, clear that Order XV Rule 5 CPC is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case 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 whether or not he admits any amount to be due.
9. In the present case the defendant took a plea that the loan amount of Rs. 20,000/- should have been adjusted towards the rent due from 1st November, 2003. This amount was adjusted towards the rent due. The balance amount was to be paid by the landlord in the month of January, 2005. It is for this reason that the defendant asserts that he does not admit that any amount is due and so Order XV Rule 5 CPC is not attracted since under this provision the amount has to be deposited only when he admits that amount is due.
10. The Supreme Court in the case of Atma Ram v. Shakuntala Rani had the occasion to examine whether the tenant defaulted in payment of rent if he had not paid or tendered or deposited the rent in the manner required by law and whether the deposit of rent under some other Act could be construed to be a valid deposit. The tenant had sent a money-order remitting the rent but the landlord refused to accept it and, therefore, the tenant deposited the rent for the period from 1st February, 1992 to 31st January, 1995 in January, 1995 under the provisions of the Punjab Relief Indebtedness Act, 1934 (called the ''Punjab Act'). The landlord, however, sent a notice dated 16th May, 1996 to the tenant to pay arrears of rent. The tenant on 20th July, 1996 deposited the rent for the period February, 1995 to 12th July, 1996 under Section 27 of the Delhi Rent Control Act, 1961 (called the ''Delhi Act'). The arrears of rent from 1st February, 1992 to 31st January, 1995 was not included since the tenant had deposited the same under the Punjab Act. Section 27 of the Delhi Act provides that where the landlord does not accept any rent tendered by the tenant, the tenant may deposit such rent with the Rent Controller in the manner provided for in that section. The landlord then filed an application for eviction of the tenant under Section 14 (1) (a) of the Delhi Act. The Supreme Court after considering a number of its earlier decisions in Kuldeep Singh v. Ganpat Lal , Jagat Prasad v. Distt. Judge, Kanpur 1995 Supp (1) SCC 318, M. Bhaskar v. J. Venkatarama Naidu , Ram Bagas Taparia v. Ram Chandra Pal and E. Palanisamy v. Palanisamy observed:
It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
...
The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by Sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.
We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the Punjab Act was of no avail in view of the express provision of Section 27 of the Act.
11. The aforesaid decision of the Supreme Court in the case of Atma Ram 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.
12. In the present case, as noticed hereinabove, even though the written statement was filed on 3rd September, 2005 the defendant did not deposit the amount under Order XV Rule 5 CPC and even in response to the application filed by the plaintiff under Order XV Rule 5 CPC on 18th January, 2006 he did not deposit the amount and took a plea in his reply dated 18th May, 2006 that he was not required to deposit the amount. It was only on 18th October, 2006 that the defendant deposited the sum of Rs. 29,336/-. The said amount was not deposited on the first date of hearing.
13. Learned Counsel for the petitioner has placed reliance upon the decision of this Court in Kunwar Baldevji (supra) in support of his contention that once the petitioner did not admit that any amount was due, he was not required to comply with the provisions of Order XV Rule 5 CPC. In the present case, the defendant has not denied the relationship of landlord and tenant between the parties. He has also not specifically denied that any amount was due as all that he states is that the so-called loan of Rs. 20,000/- that had been advanced by him to the plaintiff should be first adjusted. Realizing his mistake, he did subsequently deposit some amount on 18th October, 2006 but that was after a considerable delay of more than one year from the first date of hearing. The decision in the case in Kunwar Baldevji (supra), therefore, does not help the petitioner. Thus, the application filed by the landlord under Order XV Rule 5 CPC was liable to be allowed as the defendant had not made the deposit as contemplated under the first part of Order XV Rule 5 CPC.
14. Even otherwise, the defendant was required to deposit the "monthly amount due" throughout the continuation of the suit as contemplated under the second part of Order XV Rule 5 CPC though he may have denied the relationship of landlord and tenant between the parties because under the second part of Order XV Rule 5 CPC the deposit has to be made whether the defendant admits or does not admit any amount to be due.
15. This is what was observed by this Court in Smt. Kailash Devi v. IVth Addl. District Judge, Allahabad and Ors. 1994(2) ARC 542 wherein it was observed:
The provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh consists of two parts. In the first part the tenant is liable to deposit the entire arrears of rent admittedly due on the date of first hearing alongwith 9% interest thereon. The second part lays down that the deposit has to be made of monthly amount due within a week from the date of accrual through out the continuation of the suit whether or not the defendant admits the amount due. In Umesh Industries and Anr. v. IXth Addl. District Judge, Ghaziabad and Ors. 1994 (2) ARC 157, it was held that the tenant was liable to make deposit of monthly rent in time. He cannot take the plea that he was not liable to deposit the amount as the landlord/plaintiff owed money to him. The legislative intent was clear that the monthly amount has to be deposited month to month whether or not the defendant admit any amount to be due. He may not be liable to pay the rent claimed on the date of first hearing, but as regards monthly rent, he has to deposit whether he admits or not within the time prescribed, under Order XV, Rule 5 of the CPC.
16. This Court in Bal Krishna v. Rama Nand Dixit and Anr. 2001(1) ACJ 565 also observed:
In the instant case, obligation with regard to the deposit of the entire amount admitted to be due together with interest thereon at the rate of nine per centum, at or before the first hearing of the suit, does not arise inasmuch as the applicant has not admitted any amount to be due. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance of the mandate with regard to deposit of the monthly amount due within a week from the date of its accrual regularly during the continuation of the suit.
...
The provisions of Sub-rule (1) of Rule 5 of Order XV of the Code, unmistakably, enjoin upon the defendant in a suit by a lessor for his eviction to regularly deposit the monthly amount due within a week from the date of its accrual throughout continuation of the suit. In the event of default, the Court may, subject to the provisions of Sub-rule (2) of Rule 5 of Order XV of the Code, strike off his defence. The opinion expressed by the learned Single Judge in the case of Anil Kumar Mahajan v. Ashok Kumar and Anr. 1990 (2) ARC 189 is not in consonance with the provisions of Rule 5 of Order XV of the Code inasmuch as the Explanation (3) to Sub-rule (1) of Rule 5 of Order XV of the Code clearly forbids any deduction from "the monthly amount due", except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. It is rather per incuriam, and cannot lend support to the contention of the learned Counsel for the applicant.
17. In Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad and Ors. 2003 (1) ARC 214 this Court also observed:
I have considered the submission made by the learned Counsel for the petitioner, and I find myself unable to accept the same. As noted above, the second part of Order XV, Rule 5 (1) of the Code of Civil Procedure provides that whether or not the defendant admits any amount to be due, he must regularly deposit throughout the continuance of the suit the monthly amount due within a period of one week from the date of its accrual. Therefore, this provisions shows that the defendant must deposit the monthly amount due regularly throughout the continuance of the suit. Such monthly deposit is required to be made within a week from the date of its accrual. It is, thus, evident that the defendant is bound to ensure compliance of the provisions of Order XV, Rule 5(1) of the Code of Civil Procedure throughout the continuance of the suit. In the event of any default by the defendant in compliance with the provisions of Order XV, Rule5(1) of the Code of Civil Procedure, the defence of the defendant may be struck off by the Court as the monthly deposit is required to be made throughout the continuance of the suit.
...
Thus, the petitioner, in any case, did not make any monthly deposit after May, 1993 as per the requirements of Order XV, Rule 5 of the Code of Civil Procedure. Hence, the defence of the petitioner was rightly struck off by the said order dated 13.7.2001.
18. This decision was subsequently followed by this Court in Kailash Shukla v. Additional District Judge and Ors. 2004(1) ARC 615. In the present case it is an admitted fact that even the second part of Order XV Rule 5 CPC was not complied with by the defendant.
19. As noticed hereinabove, the tenant has to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. The mandatory requirements of Order XV Rule 5 CPC were not complied with by the tenant and, therefore, the application filed by the plaintiff-landlord under Order XV Rule 5 CPC was liable to be allowed. The Revisional Court fell in error in rejecting the said application.
20. The Courts below, therefore, did not commit any illegality in allowing the application. There is, therefore, no infirmity in the impugned orders.
21. The petition is, accordingly, dismissed.