Matter is taken in the revised cause list.
None present on behalf of the respondents.
Heard Sri U.S. Sahai, counsel for the petitioner.
Facts in brief are that landlord/respondents filed a suit under the provisions of Provincial Small Causes Courts Act, 1884, registered as SCC Suit No. 7 of 1989 for arrear of rent, ejectment in respect to the residential premises situated at Mohalla Ayodhya Nagar, Shahar Nawabganj, District Barabanki under the tenancy of the petitioner.
On 10.11.1993, an application under Order 15 Rule 5 has been moved on behalf of the respondents/landlord, (application No. Ga-49) allowed vide order dated 21.01.1994 (Annexure-6), therefore a revision ( SCC Revision No. 6 of 1994 Ram Chandra Srivastava Vs. Rameshwar and others), has been filed dismissed by order dated 04.9.1998.
Further while dismissing the revision a categorical finding was recorded that petitioner is a tenant in the premises. So, the provisions of Order 15 Rule 5 CPC are applicable and he did not deposit the entire amount on the first date of hearing. On the basis of the said fact recorded the revisional court on the basis of material on record held that order passed by trial court is perfectly valid, directed to decide the matter.
Aggrieved by the orders dated 21.01.1994 and 04.09.1998, the present writ petition has been filed.
Sri U.S. Saha, learned counsel for the petitioner while assailing the impugned orders under under challenge in the present writ petition submits that the orders passed by the courts below are per se illegal and arbitrary as the provisions of order 15 Rule 5 CPC are not applicable in the present case, further the petitioner has already given Rs. 1,00,000/- (Rs. One Lakh) in another matter keeping in view the said fact, defence of the petitioner/tenant has been wrongly struck off. So the impunged orders are liable to be set aside.
I have heard Sri U.S. Sahai, learned counsel for the petitioner and gone through the record.
In the present case, admittedly, during the pendency of the SCC suit, the plaintiffs/respondents filed an application under Order XV Rule 5 CPC for striking off the defence since the deposit as contemplated under Order XV Rule 5 CPC had not been made by the defendant at or before the first date of hearing or during the continuation of the suit. In view of the said fact, the Judge, Small Cause Courts allowed the application filed by the plaintiffs under Order XV Rule 5 CPC and the Revision filed by the defendant for setting aside the said order was also dismissed.
On a careful analysis of the provisions of Order XV Rule 5 CPC it is seen that it is divided in two parts; (a) 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. (b) The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit.
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.
The Hon'ble Supreme Court in the case of Atma Ram V. Shakuntala Rani (2005) 7 SCC 211 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.
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. , 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."
In the case of Bal Krishna v. Rama Nand Dixit and Anr. 2001 (1) ACJ 565 this Court has 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. 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."
Further, Hon'ble the Supreme Court after considering a number of its earlier decisions in Kuldeep Singh v. Ganpat Lal 1996 (1) SCC 243 : 1996 SCFBRC 339; Jagat Prasad v. Distt. Judge Kanpur, 1995 Supp. (1) SCC 318: 1995 SCFBRC 434: 1995 (2) ARC 360; M. Bhaskar v. J. Vendatarama Naidu, (1996) 6 SCC 228: Ram Bagas Taparia v. Ram Chandra Pal (1989) 1 SCC 257: 1989 SCFBRC 217, and E. Palanisamy v. Palanisamy (2003) 1 SCC 123: 2003 SCFBRC 5, 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."
Thus, 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, further 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.
Accordingly, in view of the abovesaid facts, the submission made by Sri U.S. Sahai, learned counsel for the petitioner that the petitioner has deposited Rs. 1,00,000/- (Rs. One Lakh) in another matter cannot give any benefit in the present case to the petitioner.
For the foregoing reasons, I do not find illegality or infirmity in the impugned orders which are under challenge in the present case, so the present writ petition lacks merit and is liable to be dismissed.
Accordingly, the same is dismissed.
No order as to costs.
Order Date :- 9.2.2011 Ravi/