1. Heard Sri Vivek Kumar Rai, learned counsel for the revisionist and Sri Rakesh Pandey, learned counsel for the respondent.
2. The instant revision has been filed under Section 25 of the Provincial Small Causes Court Act, 1887 against the order dated 07.01.2020 passed by the Additional District Judge / Special Judge/ Prevention of Corruption Act, 5th, Lucknow in SCC Suit No.42 of 2019; Pramod Kumar Tiwari Vs. Sanjeev Kumar Sibbal by means of which the application no.C-22 of the revisionist/defendant (here-in-after referred as revisionist) for condonation of delay in filing written statement has been rejected and the application of the opposite party / plaintiff (here-in-after referred as opposite party) under Order-8, Rule-10 of Civil Procedure Code (here-in-after referred as C.P.C) and application under Order-15, Rule-5 of C.P.C. have been allowed and defence of revisionist has been struck off.
3. The brief facts of the case, for adjudication of instant revision, are that the opposite party and the revisionist had entered into an agreement for tenancy on 01.04.2018 in regard to shop No.B-80 situated at Sri Ram Tower, 13-Ashok Marg, Lucknow for a period w.e.f. 01.04.2018 to 28.02.2019 at a monthly rent of Rs.50,000/- per month. The opposite party has filed a suit for arrears of rent and ejectment. The suit was filed on 03.07.2019. The notices were issued fixing 08.08.2019 for written statement and disposal. The revisionist appeared on 08.08.219 and filed an application for permission to deposit the due rent. The revisionist was permitted to deposit the entire due rent till 31.08.2019 on his own risk. In pursuance thereof the revisionist deposited an amount of Rs.3,00,000/- towards the rent w.e.f. 01.03.2019 to 31.08.2019. Thereafter on application of the revisionist, with the permission of the trial court, the rent of September and October, 2019 was deposited on 24.12.2019. The revisionist again preferred an application on 03.01.2019 for permission to deposit the rent of November and December, 2019, which has not been disposed of till date.
4. In regard to filing of written statement it has been stated that the copy of the plaint alongwith documents was not served and after getting the copy of plaint, the written statement alongwith an application for condonation of delay was filed on 04.01.2020 marked as C-22. In the meantime, the opposite party had filed two applications; one application No.C-15 under Order-8, Rule-10 C.P.C. and another application No.C-16 under Order-15, Rule-5 C.P.C for striking of defence. The revisionist had filed the objections to the same thereafter the application nos.C-15, C-16 and C-22 have been considered and decided by means of the impugned order dated 07.01.2020. Being aggrieved the present revision has been filed.
5. Submission of learned counsel for the revisionist was that the revisionist had entered into a tenancy agreement with the opposite party for the shop in question. During the period of agreement, the opposite party had forcefully tried to evict the revisionist on 26.08.2018 therefore the revisionist has filed a suit for permanent injunction bearing Regular Suit No. 2001 of 2018. The revisionist had continuously paid the rent and the rent receipts were issued by the opposite party up to 01.02.2019 which have been annexed with the suit by the opposite party. The notice for termination of tenancy was not served on the revisionist. The suit was filed on 03.07.2019. On notice, the revisionist appeared on 08.08.2019 and on application of the revisionist and with the permission of the trial court revisionist had deposited Rs.3,00,000/- towards rent up 31.08.2019 on 01.09.2019. Thereafter he has again deposited the rent of September and October, 2019 on 24.12.2019 with the permission of court. The rent deposited by the revisionist has been withdrawn by the opposite party. He has also filed an application for depositing the rent of November and December, 2019 on 03.01.2020 but the same has not been disposed of till date. Therefore, the revisionist could not deposit the same. He has further submitted the applications for depositing the rent. He is ready to deposit the entire dues up to date but the trial court has not permitted therefore it could not be deposited. But without considering it and the objection filed by the revisionist and also without considering that the 'first date of hearing' would be the date of framing issues, which have not been framed till date, the application under Order-15, Rule-5 has been allowed.
6. He further submitted that the application for condonation of delay in filing written statement has also been rejected without considering that the written statement was filed after getting a copy of plaint because after filing of tender on 04.09.2019 the date was fixed for 23.09.2019 but subsequently it was mentioned on the order sheet that copy received of plaint but without any signature or date of the revisionist or his counsel. The impugned order has been passed in an arbitrary and illegal manner, which is not sustainable in the eyes of law and is liable to be set-aside. Learned counsel for the revisionist relied on M/S Mangat Singh Trilochan Singh through Mangat Singh (Dead) by L.Rs. and Others Vs. Satpal; AIR 2003 (SC) 4300, Bimal Chand Jain Vs. Gopal Agarwal; AIR 1981 SC 1657 and Anil Kumar Mayor Vs. IIIrd Additional District Judge, Saharanpur and Others; 2008 (3) ARC 580.
7. Per contra, learned counsel for the opposite party had submitted that as per tenancy agreement the rent of the shop in question was Rs.50000/- per month. But the same was not being paid regularly and the period of agreement had also expired therefore after issuing notice in accordance with law, which was avoided by the revisionist, the suit for arrears of rent and ejectment was filed. He further submitted that the copy of the plaint was served on the revisionist alongwith the notice and a copy of the same was also filed alongwith supplementary counter affidavit in the civil suit filed by the revisionist in the month of July, 2019 and again on 04.09.2019 before the trial court as the receipt of the plaint was denied. But the written statement was not filed within a period of 90 days and the written statement was filed with delay on 04.01.2020 alongwith an application for condonation of delay without any explanation for delay in filing the written statement. Therefore the application has rightly been rejected in accordance with law.
8. He further submitted that in the suit for arrears of rent and ejectment, the issues are not required to be framed and for the said purpose no date is fixed therefore the first date of appearance which was also for disposal is the first date of hearing by which date compliance of the Order-15, Rule-5 of C.P.C. should have been made, but it was not done because the interest was not deposited. Thereafter the due rent is required to be deposited regularly each and every month within the period provided but the same has been deposited with delay. Therefore the opposite party had filed the aforesaid applications which have been considered after inviting objections and the applications have been allowed in accordance with law after considering all facts and circumstances of the case. Hence there is no illegality or error in the impugned order. The revision has been filed on misconceived and baseless grounds which are not tenable in the eyes of law. Hence the revision is liable to be dismissed with cost. Learned counsel for the respondent has relied on Mrs. S. Abel Vs. The District Judge and Others; AIR 1980 Allahabad 300, Meena (Smt.) and Another Vs. Smt. Pramodani Awasthi; 2016 (2) ARC 379 and Om Prakash Gupta Vs. District Judge and Another; 2019 (1) ARC 826.
9. I have considered the submissions of learned counsel for the parties and perused the impugned order and the records.
10. The revisionist and the opposite party had entered into an agreement for tenancy on 01.04.2018, which was for a period w.e.f. 01.04.2018 to 28.02.2019. The opposite party, on completion of the period of agreement, after giving a notice to the revisionist, filed a SCC Suit for arrears of rent and ejectment. The opposite party had filed two applications; one under Order-8, Rule-10 C.P.C. and another under Order-15, Rule-5 C.P.C for striking off defence of the revisionist. Both the applications alongwith an application for condonation of delay in filing the written statement by the revisionist have been considered together and the applications filed by the opposite party have been allowed and the application filed by the revisionist has been rejected by means of the impugned order. Hence, the present revision has been filed.
11. The learned trial court has rejected the application for condonation of delay in filing written statement on the ground that the written statement has been filed with a delay of about one month but no explanation for delay has been filed and the application of the opposite party under Order-8, Rule-10 C.P.C has been allowed.
12. Order-8, Rule-1 of C.P.C. provides that the defendant shall, within 30 days from the date of service of summons on him, present a written-statement of defence. The said period may be extended up to 90 days for reasons to be recorded in writing. After service of summons the revisionist had appeared on 08.08.2019. It appears that the copy of the suit was not served and the same was served on 04.09.2019, however it has also been disputed. Therefore after receipt of the copy of the plaint by the revisionist on 04.09.2019, the written statement should have been filed within thirty days. But it was not filed and it was filed on 04.01.2020 which is also beyond ninety days, the maximum period provided for filing written-statement. Copy of the order sheet filed alongwith revision indicates that on 04.09.2019, the copy of the plaint was received by the revisionist and subsequently the dates were fixed for written statement and lastly 02.01.2019 was fixed for written statement but the written statement was filed on 04.01.2019 alongwith an application for condonation of delay.
13. The Hon'ble Apex Court, in the case of Salem Advocate Bar Association Vs. Union of India; (2005) 6 SCC 344, has held that the rules of procedure are made to advance the cause of justice and not to defeat it. After considering Order-8, Rule-1 and Order-8, Rule-10 of C.P.C it has been held that the provision of upper limit of 90 days for filling written statement is directory. However, the time can be extended only in exceptional cases.
14. The Hon'ble Apex Court, in the case of Kailash Vs. Nanhku and Others; (2005) 4 SCC 480, considered the provisions of Order-8, Rule-1 of C.P. C. and held that the provisions are directory in nature and the time may be extended in case sufficient reason is shown. The extension of time sought by the defendant should not be granted in routine manner and it should be by way of an exception and for the reasons assigned by the defendant and also recorded in writing by the Court with its satisfaction. However, no straitjacket formula can be laid down for it. The relevant paragraphs 42 to 45 are reproduced below:-
"42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.
43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist.
44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.
45. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."
15. In view of above, the provisions made in Order-8, Rule-1 of C.P.C. are directory in nature and the period may be extended by the Court in case sufficient cause / reason is shown in writing and on consideration the Court finds the same sufficient and if time is not extended grave injustice may be done.
16. Perusal of the application for condonation of delay alongwith written statement placed on record reveals that the condonation of delay has been sought in the application on the basis of averments made in the written statement but in the written statement no reason or explanation for delay has been given. Consequently, the application for condonation of delay in filing written statement has been rejected. However the copy of the order sheet dated 04.09.2019 indicates that 'copy received of plaint' is mentioned on margin but there is no signature or date. So far the plea of respondent that the plaint was served with the supplementary counter affidavit filed in R.S. No.2001 of 2018 is concerned, perusal of which annexed as Annexure no.C.A.2 to the counter affidavit indicates that there is no mention of SCC Suit No.42 of 2019 in it and only two annexures have been shown although copy of plaint has been annexed as SCA-3. Therefore it is required to be considered.
17. The application filed under Order-15, Rule-5 of C.P.C. has been rejected on the ground that the revisionist has not deposited the interest of 9% in accordance with Order-15, Rule-5 while depositing the rent w.e.f. 01.03.2019 to 31.08.2019 and the revisionist has not disclosed any reason for delay in depositing the monthly rent of September and October, 2019 and the representation as provided under rule has not been made. However the revisionist had preferred an application on 03.01.2020 to deposit the rent for two months up to December, 2019. Therefore the revisionist has deposited the rent up to October, 2019 and he had further given the applications for depositing the rent although the interest was not deposited and there is some delay in depositing the monthly rent. Therefore it can not be said that there was complete non compliance of provision made in Order-15, Rule-5 of C.P.C. Therefore, the question arises as to whether the defence could have been struck off in the facts and circumstances of the case and because the revisionist has not preferred any representation as provided under Rule-2 of Order-15 of C.P.C. However the revisionist has submitted further application for depositing the rent and is ready to deposit the entire dues. The revisionist has also pleaded in his objection against the application under Order-15, Rule-5 that security deposit of Rs.1,80,000/- is still in deposit with the opposite party and he is ready to deposit the remaining rent till date etc.
18. In order to appreciate the rival contentions, the provisions contained in Order 15 Rule 5 of C.P.C. may be referred to, which is extracted below:-
"5. 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."
19. Sub-rule (1) of Order-15, Rule-5 provides that in the event of any default in making, the deposit of the entire amount admitted by him to be due or the monthly amount as aforesaid, the court may, subject to the provisions of such-rule (2), strike off his defence. Sub-rule (2) provides that 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-sectio (1) as the case may. In both sub-rule (1) and (2) the word "may" has been used. Therefore the court may consider the representation, if made within the period provided in such-rule (2). But it does not mean that if the representation is not made then the court has to strike off defence in every case of default. Therefore in case the representation is made within the time provided under sub-rule (2) then the court may consider the same before taking any decision. However even in absence of representation it is for the court to decide as to whether on the basis material available on record and in the facts and circumstances of the case, the defence should or should not be struck off.
20. The Hon'ble Apex Court, in the case of Bimal Chand Jain Vs. Gopal Agarwal (Supra), considered the provisions of Order-15, Rule-5 of C.P.C and held that delay 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 but it does not oblige it to do so in every case of default. The relevant paragraph no.6 is extracted below:-
" 6. 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 interest 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 the 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 a reserve of discretion vested in the court entitling 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."
21. A coordinate bench of this Court, in the case of Mrs. S. Abel Vs. the District Judge and Other (Supra) relied by the respondent, has held that word 'may' provided in Order-15, Rule-5 confers the power on the court to condone subject to representation made within ten days. However as discussed above and in view of judgment of Hon'ble Supreme Court in the case of Bimal Chandra Jain Vs. Gopal Agrawal (Supra) it is to be decided by the court as to whether in absence of representation the defence should be struck off or not. The other judgments relied by the learned counsel for respondent are not applicable in facts and circumstance of this case and the discussion made above.
22. In view of above, the concerned court has to take a decision under Order-15, Rule-5, looking to the facts and circumstances of the case, in which the revisionist has made the compliance of Order-15, Rule-5 with some shortcoming and delay and he is ready to comply it up to date, as to whether the defence should be struck off or not on the basis of material on record in absence of representation.
23. One of the arguments of the learned counsel for the revisionist was that the first date of framing issues would be the first date of hearing, which have not been framed till date, therefore also the defence could not have been struck off because the revisionist was ready to deposit the remaining dues. It has been disputed by the learned counsel for the opposite party on the ground that issues are not framed in SCC Suit and the first date was for written-statement and hearing. According to the law of "Lexican" "the trial of a suit is called a "hearing" and technically considered, this includes not only the introduction of the 'evidence and arguments of the counsels, but the pronouncing of the decree by the presiding officer'. Therefore the "hearing" would be when the court applies its mind to the facts of the case and the first date of hearing, the first date on which the court applies its mind to the facts of the case.
24. The Hon'ble Apex Court, in the case of Kanwar Singh Saini Vs. High Court of Delhi; (2012) 4 SCC 307, has held that "first hearing of a suit "under C.P.C. is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions raised by the parties and it can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. It has further been held that on the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of case commences. The relevant paragraphs 12 and 13 are extracted below:-
"12. The suit was filed on 26.4.2003 and notice was issued returnable just after three days, i.e. 29.4.2003 and on that date the written statement was filed and the appellant appeared in person and his statement was recorded. Order X Rule 1 CPC provides for recording the statement of the parties to the suit at the "first hearing of the suit" which comes after the framing of the issues and then the suit is posted for trial, i.e. for production of evidence. Such an interpretation emerges from the conjoint reading of the provisions of Order X Rule 1; Order XIV Rule 1(5); and Order XV Rule 1, CPC. The cumulative effect of the above referred provisions of CPC comes to that the "first hearing of the suit" can never be earlier than the date fixed for the preliminary examination of the parties and the settlement of issues. On the date of appearance of the defendant, the court does not take up the case for hearing or apply its mind to the facts of the case, and it is only after filing of the written statement and framing of issues, the hearing of the case commences. The hearing presupposes the existence of an occasion which enables the parties to be heard by the Court in respect of the cause. Hearing, therefore, should be first in point of time after the issues have been framed.
13. The date of "first hearing of a suit" under CPC is ordinarily understood to be the date on which the Court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the "first hearing of the suit" prior to determining the points in controversy between the parties i.e. framing of issues does not arise. The words the "first day of hearing" does not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. (Vide: Ved Prakash Wadhwa v. Vishwa Mohan, AIR 1982 SC 816; Sham Lal (dead) by Lrs. v. Atma Nand Jain Sabha (Regd.) Dal Bazar, AIR 1987 SC 197; Siraj Ahmad Siddiqui v. Shri Prem Nath Kapoor, AIR 1993 SC 2525; and M/s Mangat Singh Trilochan Singh thr. Mangat Singh (dead) by Lrs. & Ors. v. Satpal, AIR 2003 SC 4300).
25. In view of above "first hearing of a suit" would be the day on which court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken. The Hon'ble Apex Court in the case of Sham Lal (Dead) By Lrs Vs. Atme Nand Jain Sabha (Regd.); (1987) 1 SCC 222, held that the words the 'first day of hearing' as meaning not the day for the return of the summons or the returnable day, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken. The relevant paragraph-11 is extracted below:-
"11. It appears that there is consensus in regard to the interpretation of the expression 'first day' in the context of the rent legislations of several other states, for instance, the Gujarat High Court in Shah Ambalal Chhotalal. v. Shah Babaldas Dayabhai, dealing with the identical question as to the meaning of the words "the first day of the hearing of the suit" as provided in sub-Seciion 3(b) of Section 12 of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 has observed after considering several decisions that "the words 'the first day of hearing' as meaning not the day for the return of the summons or the returnable day, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken."
26. In view of above and considering the overall facts and circumstances of the case and the interest of justice this court is of the view that the impugned order is liable to be set aside with an opportunity to the revisionist to submit explanation for delay in support of application for condonation of delay within a period of two weeks from the date of this order before the trial court and partly allow the revision with a cost to be paid by the appellant and direction to the trial court to decide the applications afresh in accordance with law.
27. With the aforesaid the impugned order dated 07.01.2020 is hereby set-aside and the revision is partly allowed with a cost of Rs.20,000/- to be deposited by the revisionist before the trial court within two weeks of this order. The trial court is directed to reconsider the applications afresh in accordance with law and the observations made here-in-above in this order. The cost deposited by the revisionist shall be released in favour of the opposite party and paid to the account in the name of opposite party.
Order Date :-08.02.2021 Haseen U./Banswar