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ishwari Prasad Vs. Smt. Rajni Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1034 of 1975
Judge
Reported inAIR1979All336
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5
Appellantishwari Prasad
RespondentSmt. Rajni Devi and ors.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateBharatjit Agarwal, Adv.
DispositionRevision allowed
Excerpt:
.....1908 - plaintiff filed suit for arrears of rent, damages and ejectment - suit transferred to judge small cause court - application moved by plaintiff that defense ought to be struck off as arrears and damages have not been deposited in court - objection filed stating arrears had been paid under section 7 of u.p. (temporary) control of rent and eviction act, 1947 - judge stated that deposit should have been made in present suit - held, order 15 rule 5 does not require depositing security for making representation - security required for availing time extension - it need not be given simultaneously with application - revision allowed as there was no wilful default or negligence. - - this discretion, like other judicial discretion, must be exercised with vigilance, circumspection,..........u.p. act no. 37 of 1972, the deposit should have been made in the present suit and, as such, the rent deposited in the proceedings under section 7-c could not save the consequence of order xv, rule 5, c.p.c. in the revision the order of the judge, small cause court, was maintained. hence this revision.3. before dealing with the points urged, it will be helpful to bifurcate the various periods for which the rent and damages had to be paid by the defendants. it may be noted here that under o. xv, r, 5, c.p.c. a defendant is liable to deposit the entire amount due. the periods can be divided as follows:--from 1967 to 30-9-1972-deposited u/s. 7-c1st oct. 72 to april, 1974-deposited u/s. 7-c1st may, 74 to july, 1974-deposited in the presentsuit on 1-8-1974.aug. & sept, 1974-deposited on.....
Judgment:
ORDER

K.C. Agrawal, J.

1. Shrimati Rajni Devi, the plaintiff filed Suit No. 739 of 1968 for ejectment, recovery of arrears of rent and damages for use and occupation against Ishwari Prasad and Ghanshyam defendants 1 and 2. On the enforcement of U.P. Act No. 13 of 1972 the suit was transferred to the Judge Small Cause Court side on 25-1-1973. It, however, appears that as Ghanshyam Das was dead a substitution application had been filed by the plaintiff for bringing his heirs on record. On 9th April, 1974 the substitution application was allowed and 1-8-1974 was fixed for final hearing. No date for hearing of the suit was fixed between 15-7-1972 and 1-8-1974. On 1-8-1974 the suit was adjourned to 19-9-1974. On 19-9-1974 an application was moved by the plaintiff praying that since the defendants had not deposited admitted rent and damages as required under O. XV R. 5 Civil P.C., the defence was liable to be struck out. The defendants filed their objection stating that the arrears had already been paid under Section 7-C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 under the orders of Court up-to-date and, therefore, the defence could not be struck off.

2. The Judge, Small Cause Court held that the deposit made under Section 7-C for the period till 30th Sept., 1972 was justified but found that after the enforcement of U.P. Act No. 37 of 1972, the deposit should have been made in the present suit and, as such, the rent deposited in the proceedings under Section 7-C could not save the consequence of Order XV, Rule 5, C.P.C. In the revision the order of the Judge, Small Cause Court, was maintained. Hence this revision.

3. Before dealing with the points urged, it will be helpful to bifurcate the various periods for which the rent and damages had to be paid by the defendants. It may be noted here that under O. XV, R, 5, C.P.C. a defendant is liable to deposit the entire amount due. The periods can be divided as follows:--

From 1967 to 30-9-1972-deposited u/s. 7-C1st Oct. 72 to April, 1974-deposited u/s. 7-C1st May, 74 to July, 1974-deposited in the presentsuit on 1-8-1974.Aug. & Sept, 1974-deposited on 5-9-74 and on1-10-1974 respectively in the present suit.

4. It may be recapitulated here that the defence had been struck off on the ground of non-deposit of damages from 1st Oct., 1972 to April, 1974. For the period before 30th Sept., 1972, the finding of the Judge Small Causes Court was that the defendants were justified in depositing the rent under Section 7-C and, as such, they could not be called upon to deposit the same in the present suit. The period from 1st Oct., 1972 to April, 1974, if excluded for the time being, the period left is from May, 1974 to Sept., 1974. The rent for the months of Aug. and Sept., 1974 had been deposited in time. So far as the rent for the months May to July, 1974 is concerned, the deposit was made on 1-10-1974. While making the deposit on 1-10-1974 the defendants had made a representation for condonation of default or delay on the ground that since they had made the deposits in the proceedings under Section 7-C under a legal advice, the bona fide mistake could be condoned. This had been accepted by the Judge Small Causes. He held that the defendants had reasonable cause for not having deposited the rent/damages for the months May, 1974 to July, 1974. To this extent the representation was accepted.

5. The Judge, Small Causes, however, did not accept the representation for the period from 30th Sept., 1972 to April, 1974. The ground given was that as the rent for this period had not been deposited in the present suit despite moving of an application by the plaintiff for striking off the defence, the delay could not be condoned.

6. The question, therefore, is only whether the court committed an error in not accepting the representation of the defendants also for the period for 30th Sept., 1972, to April, 1974. Negativing the arguments of the defendant's learned counsel the Additional District Judge found that as the representation had not accompanied the security, the representation could not be accepted. The point, therefore, that remains to be examined is whether the representation could be dismissed because the security was not furnished simultaneously with or was not accompanying the application filed for representation.

7. For the said purpose it may be useful to notice here the relevant provision. The same is:--

'......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 or, as the case may be strike of his defence.'

This empowers a court to give further time on security being furnished for the amount. The word relevant for interpretation is 'on'. This word 'on' has several meanings. Amongst others, meanings are 'upon', 'as soon as', 'near to', 'along', 'contiguous to.'

8. The submission of the learned counsel for the plaintiff was that time could be granted by the court only when the security had been given simultaneously with the filing of the representation and as this had not been done, the representation was liable to be dismissed. I am unable to accept the submission. The security is given for complying with the order of the Court to deposit the rent. Order XV, Rule 5 does not require the depositing of security for making a representation. The security is a condition precedent for availing of the time extended by the Court for depositing the amount. It is not a condition precedent or pre-requisite for filing the application or representation. It cannot thus here mean simultaneous. If that was accepted inconvenient consequences will follow. It may be true that one of the meanings of the word 'on' is 'upon' or adjacent, to, but it is settled law that in order to construe a word it is necessary to have a reference to the context of the subject-matter of the enactment Taking these two matters into account, it appears to me that the proper consideration to be placed would be that a court has power to extend time. The extension of time should, however, be dependent on the deposit of security. The requirement, however, is not that the security must be deposited simultaneously with the filing of the application for condonation. The purpose of demanding the security is that since a tenant has already defaulted no further time should be given to him unless he demonstrates his sincerity by giving security. The security furnished would secure the interest of the landlord.

9. In the instant case, the defenants were prepared to furnish security. The Judge Small Causes, however, did not accept the prayer of the defendants on the ground that since an application for striking off the defence had been made earlier, there was no justification for the extension of time. While making this order, the Judge forgot that the defendant had deposited the rent/damages in proceedings under Section 7-C. They were not withholding the amount. Hence, if under a wrong legal advice tendered to them, instead of depositing the rent in the present proceedings, they deposited the same in the proceedings under Sec. 7-C, the Judge, Small Causes, should have held that the defendants were entitled for extension of time for depositing the amount of this period in the court. It was not a case of wilful default or negligence. In Bal Mukund v. District Judge (1977 All WC 225) Hon'ble M. N. Shukla J. held that even this concession of extension of time was hedged in by a condition, namely that he must furnish a security to the Court. La this case, however, brother Shukla did not lay down that the deposit of the security should be simultaneous with the filing of the representation.

10. The Judge Small Causes has a discretion to condone the default in not complying with the condition mentioned in Order XV, Rule 5, C. P: C. provided sufficient cause for the entire delay was shown to its satisfaction. This discretion, like other judicial discretion, must be exercised with vigilance, circumspection, according to justice, common sense and sound Judgment. The discretion is to know through law what is just (See: Keighley's case (1609) 10 Co Rep 139). In the instant case I am fully satisfied that neither negligence nor inaction nor want of bona fide is imputable to the defendants. As such, the refusal to exercise the discretion in favour of the defendants resulted in the refusal to exercise the jurisdiction vested in the Judge Small Causes. In similar circumstances this Court interfered in a revision filed under Sec. 115, Civil P.C. The said case is reported in Vichitra Singh v. Jagdish Singh (1977 (U.P.) RCC 437). It may be true that while enacting Rule 5 of Order XV, the intention of the Legislature is to secure the interest of the plaintiff and to discourage a frivolous litigation, but at the same time this provision is not in terrorem. The Court must always bear in mind that to strike off the defence is an extreme action. The Court should strike off the defence when there is a ground for doing so but not where, as here, a case for condonation had been made out.

11. The decision reported in Kaluram Onkarmal v. Baidyanath Gorain (AIR 1965 SC 1909) relied upon by Sri Raja Ram Agarwal, is distinguishable. In that case the controversy was different than that arises for decision in the present case. The said case is of no assistance to him for the proposition that the security should have been furnished along with the filing of the representation for extension of time.

12. For what I have said above, it leads me to hold that the representation was wrongly rejected by the Judge, Small Causes, and that he should, have accepted the representation of the defendants and should have granted them time for furnishing security.

13. In the result, the revision succeeds and is allowed. The judgments and orders of the 2nd Additional District Judge, Mathura dated 9-5-1975 and that of the Judge, Small Causes dated 7-10-1974 ace set aside. The Judge, Small Causes is directed to- accept the representation of the defendants and to give them one month's time from the date of the receipt of a copy of this judgment for furnishing security, and further to grant them time for depositing the rent as he may think proper. There shall be no order as to costs. The suit may be decided within three months.


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