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Rameshwar Dayal Vs. the District Judge, Allahabad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 8240 of 1979
Judge
Reported inAIR1981All147
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5; Uttar Pradesh Code of Civil Procedure (CPC) (Amendment) Act
AppellantRameshwar Dayal
RespondentThe District Judge, Allahabad and anr.
Appellant AdvocateS.P. Gupta, Adv.
Respondent AdvocateS.P. Srivastava, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
tenancy - rent recovery - order 15 rule 5 of code of civil procedure,1908 - arrears of rent recoverable - tenant denies liability - refuses to deposit amount at the first hearing of the suit - held, defence cannot be struck off. - - in view of the above the submissions made by the learned counsel for the petitioner, in my opinion, are not well founded......for striking out of the defence under order xv rule 5, c.p.c. the petitioner is the landlord. opposite party no. 2, is the tenant. the property in dispute is house no. 120, colonelganj, allahabad. the opposite party no. 2, was a tenant of the premises at the rate of rs. 35/- per mensem. suit no. 822 of 1975, was filed by the petitioner in the court of judge small causes, allahabad for arrears of rent and ejectment on the basis of default. in the suit the allegation was that the opposite party no. 2 fell in arrears of rent from 24th march, 1975 to 23rd august, 1975 and since he did not pay the amount in spite of notice of demand dated 25-8-1975, he was a defaulter and therefore, liable to ejectment. 2. during the pendency of the suit an application was moved by the petitioner that.....
Judgment:
ORDER

S.D. Agarwala, J.

1. This is a petition under Article 226 of the Constitution of India arising out of proceedings for striking out of the defence under Order XV Rule 5, C.P.C. The petitioner is the landlord. Opposite Party No. 2, is the tenant. The property in dispute is house No. 120, Colonelganj, Allahabad. The opposite party No. 2, was a tenant of the premises at the rate of Rs. 35/- per mensem. Suit No. 822 of 1975, was filed by the petitioner in the Court of Judge Small Causes, Allahabad for arrears of rent and ejectment on the basis of default. In the suit the allegation was that the opposite party No. 2 fell in arrears of rent from 24th March, 1975 to 23rd August, 1975 and since he did not pay the amount in spite of notice of demand dated 25-8-1975, he was a defaulter and therefore, liable to ejectment.

2. During the pendency of the suit an application was moved by the petitioner that since the opposite party No. 2 had not deposited the arrears of rent his defence be struck off. This application was moved on 15th December, 1976. On 8th January, 1977, objections were filed by the opposite party No. 2 that the defence cannot be struck off on the facts and circumstances of the case. The Court, however, struck off the defence and thereafter decided to proceed with the suit and ultimately on 17th November, 1977, the suit was decreed. The decree dated 17th November, 1977, was challenged by the opposite party No. 2 by means of a revision before the District Judge, Allahabad filed under Section 25 of the Provincial Small Cause Courts Act. The Revisional Court was of the view that the Judge Small Causes Court wrongly struck off the defence and as such the revision was allowed on 12th August, 1978 and the matter was remanded to the Court of Judge Small Causes for decision in accordance with law. The petitioner has, therefore, challenged the judgment of the revisional Court, dated 12th August, 1978 by means of the present petition.

3. I have heard Shri S. P. Gupta, senior Advocate appearing on behalf of the petitioner and Shri S. P. Srivastava on behalf of the opposite party No. 2.

4. Learned counsel for the petitioner has urged that even where there is a denial by the tenant in the written statement that there is no rent due and that the said amount has been deposited under Section 30 of the Act, then, too, it is incumbent upon the trial Court to first go into the question of merits as to whether the said amount has been validly deposited or not and thereafter determine the application under Order XV Rule 5 C.P.C., on merits. The view taken by the District Judge that since the tenant did not admit any amount to be due, the defence cannot be struck off is manifestly erroneous.

5. Order XV Rule 5 C.P.C. provides that in any suit by a lessor for eviction of lessee from any immoveable property after determination of the lease, the tenant shall on or before the first hearing of the suit deposit the entire amount of rent or compensation for use and occupation admitted by him to be due and in case of default the defence would be struck off. This provision is in the nature of a penalty clause and has to be very strictly construed. The intention of the legislature by enacting this rule appears to be that in a case where the rent due is admitted by the tenant then only he is obliged to deposit the amount due on or before the first hearing of the suit. In a case where the tenant denies the amount due against him for any reason whatsoever in that event he is not liable to deposit the amount under this Rule. It may be that the tenant may plead adjustment of the amount or may plead payment of the said amount to the landlord or his representative or payment in any other manner or deposit by him either in the Court as required by U.P. Act XIII of 1972 or in any other proceeding. It is, therefore, clear that the provisions of Order XV Rule 5 C.P.C., only apply to a case where the tenant admits any amount due from him. The fact that the legislature specifically mentioned that only such amount has to be deposited which the tenant admits to be due itself indicates that it was not intended that the Court where the suit is pending should at this initial stage go into the question of merits to determine whether the plea of payment raised by the tenant was a plea sustainable in law or not. This could not be the intention is further clear from the fact that if this be permitted then the process of the suit will be impeded resulting in great delay in the disposal of the suit by a landlord filed for eviction of the tenant.

6. In view of the above, I am of the opinion that it is not incumbent upon the trial Court where the suit is pending to first determine the question as to whether the plea of payment or deposit raised by the tenant in his written statement be determined on merits by the Court and then only proceed to finally dispose of the application under Order XV Rule 5, C.P.C. In this view of the matter, I am of the opinion that where the tenant does not admit the amount due from him, he is not liable to deposit the amount at the first hearing of the suit and his defence, therefore, cannot be struck off.

7. In Lakhan Lal v. Laxmi Pustakalaya, 1978 All CJ 467 : (1978 All LJ 1078) Hon'ble K. N. Singh, J., has observed as follows:--

'It is not open to the Court to strike off the defence on a prima facie satisfaction when the lessee's denial did not appear convincing. The defendant-lessee's claim may later on be found incorrect and in that case it is open to the Court to pass a decree for the amount due from him but if the defendant expressly asserted in his written statement that no amount as claimed by the lessor, was due, the Court has no jurisdiction to strike off his defence on the ground that the averments contained in the written statement do not appear to be true',

8. I respectfully agree with the view expressed by Hon'ble, K. N. Singh, J. It is not open to a Court at that stage to go into the validity of the plea as to deposits taken up in the written statement.

9. Learned counsel for the petitioner has relied upon a decision in Bal Mukand v. District Judge, 1977 All WC 225. Hon'ble M. N. Shukla, J., delivering the opinion has not specifically adverted to the question involved in the present case. He has taken the view that the Court has to apply its mind to the pleadings of the parties and thereafter examine as to what amount was admitted to be due by him and then decide the application under Order XV Rule 5 C.P.C. The principle laid down in this case does not go contrary to the view which I have already taken above. The Court has to apply its mind before it can strike off the defence under Order XV Rule 5 C.P.C. It is, however, not necssary that the plea of payment or deposit or adjustment be decided as an issue on merits after taking evidence at the time when the application under Order XV Rule 5 C.P.C. is adjudicated upon by the Court. In view of the above the submissions made by the learned counsel for the petitioner, in my opinion, are not well founded.

10. In the result, the petition fails and is accordingly dismissed but in the circumstances of the case, parties are directed to bear their own costs.


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