JUDGMENT Dilip Gupta, J.
1. The defendant of SCC Suit No. 6 of 2002 has filed this petition for setting aside the order dated 17th December, 2003 passed by the 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 the ''CPC') for striking off the defence was allowed. The petitioner has also sought the quashing of the order dated 21st January, 2008 by which the Revision filed by him under Section 25 of the Provincial Small Cause Courts Act, 1887 for setting aside the aforesaid order was dismissed.
2. The records of the writ petition indicate that the aforesaid SCC Suit No. 6 of 2002 had been filed by the plaintiff-respondent for ejectment and recovery of arrears of rent with the assertion that the defendant was a tenant at the rate of Rs. 360/- per month plus house tax and water tax in all amounting to Rs. 430/- per month; that the defendant had not paid rent with effect from 31st December, 1997 and that by the notice dated 16th April, 2002 received by the defendant on 19th April, 2002 the tenancy was terminated and arrears of rent was demanded but the defendant did not pay the arrears of rent and nor did he vacate the premises.
3. The summons were served upon the defendant and the Written Statement was ultimately filed on 26th October, 2002. The plaintiff moved an application 30-C on 26th April, 2003 under Order XV Rule 5 CPC with a prayer that the defence be struck off as the defendant had failed to comply with the provisions of Order XV Rule 5 CPC. The defendant filed his objections to the aforesaid application and asserted that the rate of rent was Rs. 100/- per month only; that the rent at the rate of Rs. 100/- per month had been paid to the plaintiff up to 31st March, 2002 though no receipts were issued; that the entire arrears of rent at the rate of Rs. 100/- per month up to 31st July, 2003 had been deposited under Section 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the ''Act') pursuant to the application filed by the defendant on 23rd August, 2002 and the receipts were filed. It was, therefore, prayed that the application filed by the plaintiff under Order XV Rule 5 CPC be rejected.
4. The Judge, Small Cause Courts as well as the Revisional Court have observed that the defendant had not deposited the amount as contemplated under Order XV Rule 5 CPC and so the application filed by the plaintiff has been allowed.
5. I have heard learned Counsel for the petitioner and perused the material available on record.
6. Learned Counsel for the petitioner does not dispute that on the first date of hearing the amount was not deposited and nor was the monthly amount regularly deposited within a week from the date of its accrual and that it was only on 19th November, 2003 that the defendant deposited the rent in the suit for the period from 1st April, 2002 to 31st December, 2003. The contention of the learned Counsel for the petitioner is that the amount deposited under Section 30(1) of the Act should have been taken into consideration and in any case, even if the amount was deposited in the suit on 19th November, 2003, the Court should have condoned the delay in making the deposits but the application filed by the plaintiff under Order XV Rule 5 CPC should not have been allowed and in support of his contention he has placed reliance upon the decision of the Supreme Court in Mangat Singh (M/s.) Trilochan Singh Thr. Mangat Singh (dead) LRs. and Ors. v. Satpal 2003 (2) ARC 768 and of this Court in Bhawani Vastrya Bhandar, Ballia & Anr. v. Smt. Sahodra Devi (since deceased) and Ors. 1996 (2) ARC 406 and Mahendra Nath Tandon v. VIth Addl. District Judge, Kanpur Nagar and Ors. 1997 (1) ARC 139.
7. 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 other amount therein. It is also not in dispute that the monthly amount due was also not deposited within a week from the date of its accrual each month during the continuation of the suit. In fact as the records indicate that the application under Section 30(1) of the Act was filed by the defendant only on 23rd August, 2002 and the defendant continued to deposit the rent under Section 30(1) of the Act up to 31st July, 2003. Thus, though the Written Statement was filed by the defendant in SCC Suit No. 6 of 2002 on 26th October, 2002 but even thereafter the monthly amount due was not deposited by the defendant in the suit and the deposit was continued to be made under Section 30(1) of the Act. As noticed hereinabove, it was only on 19th November, 2003 that the defendant deposited the amount in the suit for the period from 1st April, 2002 to 31st December, 2003.
8. In order to appreciate the controversy involved in this petition it would be necessary to place the relevant provisions of Section 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:
Section 30. Deposit of rent in court in certain circumstances.- If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building.
(3) The deposit referred to in Sub-section (1), or Sub-section (2), shall be made in the Court of the Munsif having jurisdiction.
(4) On any deposit being made under Sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf.
(5) On a deposit being made under Sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person.
(6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in Sub-section (1) or to the landlord in the case referred to in Sub-section (2).
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.
9. 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.
10. Explanation 2 to Order XV Rule 5 (1) CPC 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 CPC 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.
11. What has to be noticed in Order XV Rule 5 CPC 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. Thus, 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 to the conclusion 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 CPC and in no other manner.
12. 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.
13. 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. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
14. A Division Bench of this Court in Haider Abbas v. Additional District Judge (Court No. 3) Allahabad and Ors. 2006 (62) ALR 552 while considering the provisions of Order XV Rule 5 CPC and the aforesaid decision of the Supreme Court in Atma Ram observed as follows:
The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) 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. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC.
...
It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration.
15. In Basant Kumar Chauhan v. VIIth A.D.J. 1994 (1) ARC 107, after analyzing the provisions of Order XV Rule 5 CPC, this Court observed:
It is, therefore, obvious that the provisions contained in Order XV, Rule 5, read with Explanation II clearly stipulate that any amount deposited in any Court under Section 30 of the U.P. Act No. 13 of 1972 could be taken notice of by the Court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual.... Considering the Explanation III to Order XV, Rule 5 of the Civil Procedure Code it is clear that for finding out the ''monthly amount due' the deposits made in any Court under Section 30 of the U.P. Act No. 13 of 1972 are not to be taken into account.... Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under Explanation III to Order XV, Rule 5(1) of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck-off.
16. In Ram Kumar Singh v. IIIrd Additional District Judge, Ghaziabad 2003 (1) ARC 294, after placing reliance on the decisions rendered in Basant Kumar Chauhan and Sayeed Hasan Jafar alias Shakil Ahmad v. Rurabal Haq and Ors. 1995 (2) ARC 341, this Court observed as follows:
In view of the aforesaid decisions of this Court, it is evident that the deposit of the monthly rent/compensation by the petitioner (defendant) under Section 30 of the U.P. Act No. XIII of 1972 during the continuance of the said S.C.C. Suit No. 26 of 1977 were illegal, and the same could not be said to be made in compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure. Once the "first hearing" in the said S.C.C. Suit No. 26 of 1977 arrived, it was no longer open to the petitioner to continue to deposit the monthly rent/compensation under Section 30 of the U.P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad. The said monthly deposits should have been made in the said S.C.C. Suit No. 26 of 1977 before the respondent No. 2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure namely, head (B) above.
17. In view of the aforesaid decisions, the amount deposited under Section 30 of the Act can be taken into consideration while depositing the amount at or before the first date of hearing of the suit 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 and the amount, if any, deposited under Section 30 of the Act cannot be deducted. Thus, the first contention of learned Counsel for the petitioner cannot be accepted.
18. The next contention of the learned Counsel for the petitioner is that the delay in making the deposit should be condoned.
19. The Supreme Court comprehensively analysed the provisions of Order XV Rule 5 CPC in the case of Bimal Chand Jain v. Sri Gopal Agarwal AIR 1981 SC 1657 and the relevant paragraph in this context is quoted below:
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 interests thereon at the rate of nine per cent 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 in 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 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 reserve of discretion vested in the court entilling 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.
20. The Supreme Court in Smt. Satya Kumari Kamthan v. Noor Ahmed and Ors. 1992 (2) ARC 82 examined the provisions of Order XV Rule 5 CPC as amended in Uttar Pradesh. The landlord had moved an application for striking off the defence of the tenant. The Civil Judge noticed that there was a default in depositing the admitted rent for the months of August, September, October, November and December, 1980 and the tenant had not made any 'representation' under Order XV, Rule 5(2) CPC and, accordingly, struck off the defence. The Revision was also rejected in view of the judgment of this Court in Puran Chand v. Praveen Gupta 1980 AWC 712. The writ petition filed in this Court was allowed and the matter was remanded to the Revisional Authority with a direction to dispose of the Revision on merits in the light of the observatjons made by the Supreme Court in Bimal Chand Jain. The Supreme Court in Satya Kumari Kamthan while interpreting the provisions of Order XV Rule 5 CPC as amended in the State of Uttar Pradesh and after considering the decision of this Court in Puran Chand Jain and the decision of the Supreme Court in Bimal Chand Jain observed as follows:
Can the ground that the decision of this Court overruled the decision of the Allahabad High Court above referred, be sufficient to set aside the Distt. Judge's order and remand it for fresh disposal? We may point out that in the case on hand when the appellant filed an application for striking off, the tenant filed a written statement objecting to the striking off on the ground that there was no default in payment of the monthly rent as provided under Rule 5 (1) of Order XV. The courts below did not accept this contention and found as a fact that there was a default in payment of the admitted rent. The Courts below further held that though there was a default there is no "representation" by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons and that, therefore, the plaintiff was entitled to get the defence struck off. The work "representation" may cover a "representation" in answer to an application for striking off or a "representation" praying for an extension of time for making the deposit on sufficient grounds shown. The tenant in this case only made representation that he had deposited the correct money rent but he had not filed any application for extension of time. In the circumstances, therefore, the Courts below were right in holding that there was a default in payment of the monthly rent and since there was also no application for extension of time under Sub-rule (2) of Rule 5 of Order XV the defence was liable to be struck off. The order of the High Court in the writ petition, is, therefore, not sustainable. The appeal is accordingly allowed. The Judgment dated 24th February, 1982 in Civil Writ petition No. 13392 of 1987 is set aside and the Order of the Civil Judge as confirmed by the Additional District Judge striking off the defence is upheld.
21. A perusal of the judgment clearly indicates that the Supreme Court observed that the tenant had merely made a representation that he had deposited the correct amount but he did not file any application for extension of time and, therefore, in such circumstances the Trial Court and the Revisional Court were correct in holding that there was a default in payment of the monthly rent. The defence, therefore, was liable to be struck off. The aforesaid decision of the Supreme Court in Smt. Satya Kumari Kamthan was followed by a learned Judge of this Court in Devendra Kumar Jain v. Ram Prakash 2004 (2) ARC 317.
22. In the present case all that has been stated in the objections filed by the defendant is that the amount had been deposited under Section 30(1) of the Act. In fact at the time of filing the objections in May, 2003, even the amount had not been deposited in SCC Suit No. 6 of 2002 as it was only on 19th November, 2003 that the amount was deposited. There is nothing on the record to indicate whether any prayer was made by the defendant for extension of time. In the decisions relied upon the learned Counsel for the petitioner, it has been held that the Courts have a discretion in the matter and the power to strike off the defence is to be exercised having regard to the facts and circumstances of each case and the application filed by the plaintiff should not be allowed on mere technicalities. These decisions do not help the petitioner as in the present case it has been found that no satisfactory explanation has been give as to why the amount was not deposited on the first date of hearing and why the monthly amount due was also not deposited during the continuation of the suit.
23. The Courts below have, therefore, correctly come to the conclusion that the application filed by the plaintiff under Order XV Rule 5 CPC for striking off the defence as the defendant failed to comply with the requirements of Order XV Rule 5 CPC was liable to be allowed. There is, therefore, no error in the impugned orders.
24. The writ petition is, accordingly, dismissed.