List has been revised.
Heard learned counsel for the petitioner, however, learned counsel for the respondent is not present.
The petitioner has filed SCC Suit No.72/2016 in the Court of Judge Small Causes. After issuance of notice to the respondents, written statement was filed. The suit was in respect of recovery of arrears of rent and eviction from the shop in dispute. In the suit filed for recovery of rent, before first hearing of the suit, the tenant has to deposit the entire claimed arrears of rent before the trial Court. Due to non deposit of the rent in accordance with the provisions, the petitioner moved an application under Order 15 Rule 5 CPC for struck of the defense of the respondents. The trial Court has passed an order on the application on 27.08.2018 noticing that the tenant has deposited the rent in Miscellaneous Case No.36/2011 and the receipt in this regard is placed on record. Therefore, rejected the application moved by the petitioner to struck of the defense of the respondents.
The order passed by the Additional District Judge, Lucknow in SCC Suit No.72/2016 has been assailed in the present writ petition on the ground that the deposit of rent in proceeding under Section 30(1) of the Act is not permissible in law. The tenant has to deposit the rent in the proceeding initiated under the Rent Control Act by filing the small causes suit.
Therefore, submission of learned counsel for the petitioner is that due to non consideration of this aspect of the matter that the tenant has not deposited the amount on the first date of hearing, the order passed by the respondent vitiates in law. He placed reliance upon a judgment of this Court in the case of Haider Abbas Vs. Additional District Judge, Allahabad and others; 2006 ACJ 108, paragraph No.36. He further placed reliance upon a judgment of Hon'ble Supreme Court in the case of Atma Ram Vs. Shakuntala Rani; 2005 (7) SCC 211, paragraph No.19.
Having heard the contentions advanced by learned counsel for the petitioner, I perused the material on record.
For consideration of the claim of the petitioner, the relevant paragraph of the judgments relied upon by learned counsel for the petitioner is being quoted below:
1) Haider Abbas Vs. Additional District Judge, Allahabad and others (Supra):
"36. We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act 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 for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the Act cannot be deducted."
2) Atma Ram Vs. Shakuntala Rani; 2005 (7) SCC 211 (Supra):
"19. It will thus appear that this Court has consistently taken the views that in 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."
On perusal of the aforesaid two judgments, it is apparent that in 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 the condition laid down in the Act . In case, he fails to do so, he cannot take advantage of the benefit conferred by such a provision contained under the Act No.13 of 1972.
It is consistent view that the deposit of rent, if deposited under Section 30 in the proceeding other than initiated under Rent Control Act, then the tenant would have deposited subsequent rent under the proceeding of U.P. Act No.13 of 1972.
On perusal of the impugned order, it is well established that there is no finding returned that whether the rent was deposited prior to initiation of the commencement of proceeding of the suit or on the date of commencement of the proceeding of the suit in the same court or in a separate proceeding initiated by the tenant for deposit of rent.
In view of the settled proposition of law, as laid down in the aforesaid two judgments, in absence of any finding returned in the order impugned, the same cannot be sustained.
Accordingly, the impugned order dated 27.08.2018 is hereby set aside.
The writ petition succeeds and is allowed.
The matter is remanded to the respondent No.2-Additional District and Sessions Judge, Court No.3, Lucknow to pass appropriate order on the application filed by the petitioner under Order 15 Rule 5 CPC and to pass appropriate order in accordance with the observation made herein above within a period of three months from the date of production of a certified copy of this order.
Order Date :- 26.7.2019 Adarsh K Singh