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Ladly Prasad Vs. Ram Shah Billa and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 99 of 1975
Judge
Reported inAIR1976All261
ActsConstitution of India - Article 226
AppellantLadly Prasad
RespondentRam Shah Billa and ors.
Advocates:A.K. Banerji, Adv.
DispositionAppeal allowed
Excerpt:
.....to deposit the arrears of rent and damages as required under order xv, rule 5, civil procedure code. if the suit is of the nature mentioned in the rule, the provisions relating to deposit and the consequences on failure to do so are attracted. the nature of the suit and the stage at which rule 5 comes into play appear to be fully satisfied when the court was invited to exercise the power conferred by that rule. the court cannot under this rule order or compel the defendant be deposit the amount claimed by the plaintiff and on the failure of the defendant to make the deposit as claimed by the plaintiff refuse to entertain any defence or strike off his defence. in the present case the learned munsif rightly came to the conclusion that looking to the nature of the case rule 5 was..........in law and no rent was due. necessary issues were framed in the suit.2. during the pendency of the suit rule 5 was added to order xv of the code of civil procedure by the uttar pradesh civil laws amendment act, 1972 (u. p. act no. 37 of 1972). the plaintiff made an application praying that the defence be struck off and an ex parte decree be passed against the defendants as they had failed to deposit the arrears of rent and damages as required under order xv, rule 5, civil procedure code. the application was contested on the ground that rule 5 was not attracted as the lease had not been validly determined and no arrears of rent were due. it was further pleaded that in case rule 5 was held applicable, 15 days time be granted for making the requisite deposit.3. the learned munsif held that.....
Judgment:

K.N. Seth, J.

1. The appellantLadly Prasad filed a suit in the court of the Munsif, Ghaziabad, for eviction of the defendants from the premises in dispute and for recovery of arrears of rent and damages for use and occupation alleging that the defendants were tenants at a monthly rent of Rs. 150/- and their tenancy had been terminated by a notice under Section 106 of the Transfer of Property Act. The suit was contested by the defendants, inter alia, on the grounds that the notice terminating the tenancy was illegal and the tenancy had not been terminated in law and no rent was due. Necessary issues were framed in the suit.

2. During the pendency of the suit Rule 5 was added to Order XV of the Code of Civil Procedure by the Uttar Pradesh Civil Laws Amendment Act, 1972 (U. P. Act No. 37 of 1972). The plaintiff made an application praying that the defence be struck off and an ex parte decree be passed against the defendants as they had failed to deposit the arrears of rent and damages as required under Order XV, Rule 5, Civil Procedure Code. The application was contested on the ground that Rule 5 was not attracted as the lease had not been validly determined and no arrears of rent were due. It was further pleaded that in case Rule 5 was held applicable, 15 days time be granted for making the requisite deposit.

3. The learned Munsif held that Order XV, Rule 5, Civil Procedure Code was attracted to the case. Fifteen days' time was allowed to deposit the entire dues. The learned Additional District Judge dismissed the revision filed by the defendants and upheld the order of the trial court. The defendants filed a petition in this Court under Article 226 of the Constitution. The learned single Judge, without entering into the merits of the controversy, issued a direction tothe effect that in case the petitioners pay the entire amount of rent which according to them was due upto February 28, 1975, within one month or before the first day of hearing that may be fixed in the case by the trial court, the trial court will not strike off the defence. The defendants have also been directed to continue to deposit every month the amount as required by Rule 5. The legality of the order of the learned single Judge has been assailed in this appeal by the plaintiff. It was contended that the decision of the courts below that Rule 5 was attracted to the case was legally sound and that the petition under Article 226 was not maintainable and the learned single Judge had no jurisdiction to grant time to the petitioners to make the requisite deposit. Rule 5 added to Order XV of the Code of Civil Procedure by Act No. 37 of 1972 provides:--

'(5) Striking off defence on non-deposit of admitted rent, etc. In any suit by a lessor for the eviction of a lessee from any immovable property after the determination of his lease, and for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for the use or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1972, the defendant shall, at or before the first hearing of the suit, (or in the case of a suit instituted before the commencement of the said Act, the first hearing after such commencement) deposit the entire amount of rent, or compensation for use and occupation, admitted by him to be due, and thereafter throughout the continuance of the suit, deposit regularly the amount of monthly rent, or compensation for use and occupation, due at the rate admitted by him, and in the event of any default in this regard, the court may unless after considering any representation made by him in that behalf it allows him further time on security being furnished for the amount, refuse to entertain any defence on, as the case may be, strike off his defence.

(2) The provisions of this Rule are in addition to and not in derogation of anything contained in Rule 10 of Order XXXIX.'

The earlier part of the rule describes the nature of the suit as one between a lessor and a lessee instituted after the determination of the lease for the eviction of the lessee and for recovery from himof rent or of compensation. The latter part of the rule provides for deposit by the lessee of the entire amount of rent or compensation for use and occupation admitted by him to be due at the first hearing of the suit. The rule empowers the court to refuse to entertain any defence or strike off the defence in case the lessee commits any default in making the requisite deposit unless the court, after considering any representation made by the defendant, allows him further time to make the requisite deposits on security being furnished for the amount. If the suit is of the nature mentioned in the rule, the provisions relating to deposit and the consequences on failure to do so are attracted.

4. We find no merit in the contention of the respondents that Rule 5 is not attracted unless the court first decides the questions whether the tenancy has been validly terminated and any amount of rent is due from the defendants. Order XV relates to disposal of suit at the first hearing. This stage is arrived after the defendant has filed his written statement, the parties have been examined under Order X, if considered necessary, to clarify the points in controversy, documents on which parties rely have been produced and admission and dental obtained, and necessary issues framed as provided under Order XIV-After the framing of the issues the case is ready for hearing. This is the stage when Rule 5 of Order XV comes into play. This is anterior to the stage when the parties examine their witnesses. At the stage of Rule 5 of Order XV the court is not required to record finding on disputed questions of fact which can be done only after the parties have led evidence in support of their conflicting claims.

5. In the suit in question there is no dispute about the rate of rent. It was pleaded in the written statement that the plaintiff illegally refused to accept the rent tendered personally and then remitted by a money order. The nature of the suit and the stage at which Rule 5 comes into play appear to be fully satisfied when the court was invited to exercise the power conferred by that rule.

6. Under Rule 5 the defendant is required to deposit the entire amount of rent or damages for use and occupation which is admitted by him to be due. If the whole or a part of the amount claimed by the plaintiff is admitted by thedefendant in his written statement or during the examination under Order X, the law requires that be shall deposit the amount admitted to be due and thereafter throughout the continuance of the suit continue to deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him. If, however, the defendant does not admit that any amount is due to the plaintiff as rent or damages for use and occupation, he need not make any deposit. At this stage the court is not required to decide the questions whether any amount is really due and whether the lease has been validly terminated. The court cannot under this rule order or compel the defendant be deposit the amount claimed by the plaintiff and on the failure of the defendant to make the deposit as claimed by the plaintiff refuse to entertain any defence or strike off his defence. It is only when the defendant commits default in depositing the amount admitted by him to be due or in continuing to deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by Mm that the court would be competent to refuse to entertain any defence or to strike off his defence. In case the court after considering the representation made by the defendant comes to the conclusion that the circumstances justify grant of further time on security being furnished for the amount, the court will be competent to do so. It is not obligatory on the court to refuse to entertain any defence or to strike off the defence in a case default is committed by the defendant in making the requisite deposits. In the present case the learned Munsif rightly came to the conclusion that looking to the nature of the case Rule 5 was attracted but on being satisfied that circumstances justified it, granted time to the defendants to make the deposit.

7. The contention that the writ petition was not competent and should not have been entertained appears to be sound. The extraordinary jurisdiction of the Court under the Constitution is not meant to correct error of law or fact committed by the subordinate courts during the proceedings of a suit For that purpose adequate machinery has been provided by the Code by way of appeal, revision or review. When the appropriate remedy under the Code has been utilized the controversy must come to an end. If the Code provides no further remedy toan aggrieved party, finality must attach to the order deciding the controversy one way or the other. Even if the order could be demonstrated to be erroneous it should normally be not interfered with. It is only in exceptional cases of grave injustice that the extra-ordinary jurisdiction under the Constitution can be invoked. In the present case the order of the learned Additional District Judge finally disposed of the matter in dispute as the Code does not provide for a further revision to this Court. Article 226 is not meant to be invoked as a substitute for Section 115 of the Code.

8. Assuming that the petition was competent the learned single Judge while disposing of the petition had no jurisdiction to grant further time to the petitioners to make the deposit. He could either quash the impugned orders or affirm them. Article 226 could not be pressed into service solely for the purpose of extending the time granted by the courts below or for granting a fresh opportunity to the petitioners to comply with the order of the courts below.

9. In the result the appeal is allowed, the order of the learned single Judge is set aside and the writ petition is dismissed. The appellant is entitled to his costs of this appeal as well as the writ petition.


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