Heard learned counsel for the parties and perused the record.
The petitioners are the tenants of the shop situated in mid western portion of house no.96/85, Nakhas Khona, Allahabad.
SCC Suit No. 49 of 2004 was filed by the landlord respondent nos. 3 and 4 in the Court of Judge Small Causes, Allahahad for ejectment of the petitioners from the shop in dispute and for payment of arrears of rent and damages. The suit was contested by the petitioners by filing written statements denying the plaint allegations. Since, according to the landlords the erstwhile tenant Sri Raja Ram and after his death his legal heirs i.e. the petitioners had not deposited the arrears of rent with effect from June,1990 on the first date of hearing, an application paper no.29-C was moved for striking off the defence under Order 15 Rule 5 C.P.C. The application was objected upon by filing objection paper no. 32-C interalia, that respondent no.5 namely, Smt. Madhuri Jaiswal wife of Sri Shiv Bala and daughter of late Raja Ram Jaiswal resident of 1022 Malviya Nagar, Satti Chaura, Allahabad was no longer tenant as the petitioners had succeeded to the tenancy of their real uncle Raja Ram Jaiswal who after the marriage of respondent no.5 lived with them till his death. It was stated in the objection that the petitioners being nephews of their uncle Raja Ram Jaiswal are true successors to his tenancy but the rent offered by them to the landlords was not accepted.
Application paper no.29-C was allowed by the Judge Small Causes Court, Allahabad vide his order dated 19.9.2007 striking off the defence of the petitioners on the ground that their objection paper no.32-C against the aforesaid application 29-C was not accompanied by proper court fee stamp as such the tender annexed by the alleged tenants petitioner with the objection was not passed for depositing the due rent. The petitioners then filed an application paper no.52-C dated 8.10.2007 along with tender of Rs.7,000/- before the court below for depositing the admitted due rent and interest which was allowed by the court below to be deposited on the risk of the applicants. Subsequent deposit was made by the tenants in SBI main Branch, Allahabad in pursuance of order passed on paper no.52-C in Suit No. 49 of 2004 pending in the court of Judge Small Causes Court, Allahabad.
It appears that the petitioners preferred Civil Revision No. 407 of 2007 challenging the validity and correctness of the order dated 19.9.2007 by which the application paper no.29-C was allowed by the Court below striking off the defence of the petitioners, on the ground that their objection paper no.32-C has not been considered on merit and has been rejected on technical ground. The aforesaid revision of the petitioners has also been dismissed by the Additional District Judge, Court No. 14, Allahabad vide order dated 13.7.2010. The petitioners have challenged the aforesaid order and have prayed for quashing of the orders dated 13.7.2010 and 19.9.2007 passed by the courts below.
Before adverting to the judgments of the courts below, certain definitions in U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act, 1972 may be noted.
' Tenant' is defined in section 3(a) of the Act whereas 'family' and 'landlord' are defined in sections 3(g) and 3(f) of the Act respectively. For ready reference these definitions are quoted below.
" 3(a) " tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;
(2) in the case of a non-residential building,his heirs;
Explanation- An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant. 3(g) "family" in relation to a landlord or tenant of a building, means, his or her-
(i) spouse,
(ii) male lineal descendants,
(iii) such parents, grand-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building.
3(f) "landlord", in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in clause (g), the agent or attorney, of such person."
The judgments given by the courts below may be looked into along with the definitions aforesaid.
Admittedly, the real uncle of the petitioners late Raja Ram Jaiswal was tenant in the building in dispute. He was living with the petitioners at the time of his death but the petitioners are neither legal heirs of erstwhile tenant late Raja Ram Jaiswal nor they fall within the definition of 'family' of the tenant. Admittedly also the landlords did not accept them as tenants nor accepted rent from them as rent was not payable from them. The petitioners wanted to deposit the rent in Court of J.S.C.C. Allahabad in Misc. Case but when the rent was not deposited on the first date of hearing they on their own risk deposited the same in SBI main Branch, Allahabad and admittedly the rent was not deposited on the first date of hearing.
Learned counsel for the petitioners has placed reliance upon paragraph 6 of the judgment rendered in Bimal Chand Jain versus Sri Gopal Agarwal, ARC, 1981 page-463 wherein the Court has considered as to how the provision of Rule 5 of Order XV of C.P.C. should be construed and has held thus:-
" 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 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 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 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 nor 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 (surpa). 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."
In so far as the case of Payare Lal versus District Judge, Lucknow and others, (2010 (2) ARC-260 cited by the learned counsel for the petitioners is concerned, it appears that the Court in its discretion under Article 226 of the Constitution had allowed the tenant of the building in that case to deposit the rent within a week. The aforesaid judgment itself lays down that neither the rent had been paid nor had been deposited on the first date of hearing by the tenant for use and occupation of the premises in dispute, hence no illegality or infirmity was noticed in the impugned orders which were challenged before the High Court.
It appears that late Raja Ram Jaiswal was the tenant in the shop in dispute @ Rs.30/- per month and the petitioners wanted to capture that shop claiming that he was living with them. Admittedly, according to their own case of the petitioners, their uncle late Raja Ram Jaiswal were living with them in their accommodation which was not the tenanted shop. Since the petitioners are not male lineal descendants of the tenant, the tenancy could not devolve upon them. There is no illegality or infirmity in the orders of the courts below.
The answer to the question as to whether the Court below could have struck off the defence of the petitioners in the circumstances under Order 15 Rule 5 C.P.C., is in the affirmative for the reason that if law provides that certain things are to be done in a particular manner then it has to be done strictly in that manner. Law provides that admitted amount of rent due from a tenant is to be deposited by him on the first date of hearing. Admittedly, it has not been done in the instant case. Tender of rent without payment of court fee is no tender in the eye of law. Furthermore, the tenant, according to the definition, means a person by whom rent is payable and on death of tenant in case of a residential building only such of his heirs as normally resided with him in the building at the time of his death. The "landlord" means a person to whom the rent of a building is payable if it is let out and includes except in clause (g), the agent or attorney, of such person.
The case laws cited by the learned counsel for the petitioners are not applicable in the facts and circumstances of the present case as the petitioners are not tenants of the shop in dispute.
As observed earlier, if the law provides that rent due has to be deposited on the first date of hearing. Discretion by the High Court does not mean that it has to be exercised in every case or a ratio of law has been laid down, hence in view of Pyare Lal's case (supra) that there is no illegality in orders of the courts below if relief has not been granted for not permitting the tenants to deposit rent after first date of hearing I am not therefore, inclined to interfere in the matter merely because the Court in that case under Article 226 of the Constitution had exercised its discretion in favour of the tenants.
For the reasons stated above, there is no illegality committed by the courts below. The writ petition is accordingly, dismissed. No order as to cost.
Dated 15.9.2010 CPP/-