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Surendra Nath Dubey Vs. Smt. Shakuntala Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. Nos. 1154 and 1163 of 1977
Judge
Reported inAIR1980All136
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5; Uttar Pradesh Civil Laws (Amendment) Act, 1972
AppellantSurendra Nath Dubey
RespondentSmt. Shakuntala Devi
Advocates:R.N. Singh, Adv.
DispositionRevisions allowed
Excerpt:
tenancy - defence of tenant - order 15 rule 5 of code of civil procedure, 1908 - tenant did not deposit the rent or compensation for use and occupation due before first hearing - filed written statement pleading nothing is due - landlord demanding to struck off his defence - held, defence cannot be struck off as non payment of dues is not admitted by him. - - on 4th of august, 1976 the plaintiff filed an application (17-c) mentioning that the defendant had failed to deposit the rent etc. on 4th october, 1976 the plaintiff filed yet another application under order 15 rule 5 of the code of civil procedure alleging that as the defendant had failed to deposit the entire rent due from him on or before the first date of hearing, his defence should be struck off......application (17-c) mentioning that the defendant had failed to deposit the rent etc., on the first date of hearing and prayed that the case be directed to proceed ex parte against him.the defendant (vide paper no. 18-c) objected to the request made by the plaintiff and 17th of september, 1976 was fixed for final disposal of the suit on which date the defendant filed his written-statement denying that any rent was due from him. he claimed that he was a tenant of the plaintiff on payment of rent at the rate of rs. 50/- per month only. he denied his liability to pay any electricity charge or the water, tax as claimed by the plaintiff. on 4th october, 1976 the plaintiff filed yet another application under order 15 rule 5 of the code of civil procedure alleging that as the defendant had.....
Judgment:

H.N. Seth, J.

1. These two connected civil revisions can be conveniently disposed of by a common judgment.

2. Briefly stated the facts giving rise to these revision applications are that on 4th of March, 1976 opposite party Smt. Shakuntala Devi filed a suit against the applicant for ejectment and recovery of Rs. 2978.50 as arrears of rent etc. and future mesne profits calculated at the rate of Rs. 95/- per month.

3. The plaintiff alleged that the defendant was the tenant of the accommodation in dispute and was liable to pay rent at the rate of Rs. 90/- per month. Over and above this, the defendant had to pay a sum of Rs. 15/- per month towards electricity charges and further a sum of Rs. 5/- per month as water-tax, The defendant was in arrears for the period 1st of October, 1973 to 30th of March, 1975 (the date on which the defendant's tenancy is said to have been determined) and he did not pay the electricity charges for the period 1st of October, 1973 to 27th of September, 1974. Besides this, the water tax for the period 15th of July,1972 to 30th of March, 1975 was also due against him.

4. The suit was registered on 23rd of March, 1976 and 19th of May, 1976 was fixed for filing of written-statement and for final hearing, On 19th of May, 1976 the defendant moved an application (12-D) praying that the plaintiff be directed to give a copy of the plaint to him and that he may be allowed to file a written-statement within a period of two months. The trial court allowed the application and fixed 16th of August, 1976 for final hearing of the suit. On 4th of August, 1976 the plaintiff filed an application (17-C) mentioning that the defendant had failed to deposit the rent etc., on the first date of hearing and prayed that the case be directed to proceed ex parte against him.

The defendant (vide paper No. 18-C) objected to the request made by the plaintiff and 17th of September, 1976 was fixed for final disposal of the suit on which date the defendant filed his written-statement denying that any rent was due from him. He claimed that he was a tenant of the plaintiff on payment of rent at the rate of Rs. 50/- per month only. He denied his liability to pay any electricity charge or the water, tax as claimed by the plaintiff. On 4th October, 1976 the plaintiff filed yet another application under Order 15 Rule 5 of the Code of Civil Procedure alleging that as the defendant had failed to deposit the entire rent due from him on or before the first date of hearing, his defence should be struck off. The trial court rejected the said application vide its order dated 25th of November, 1976. It observed that according to the defendant the rent up to May, 1976 had been deposited by him in proceedings under U. P. Act No. 13 of 1972 and that for subsequent months he had deposited in court a sum of Rs. 250/-by means of two tenders (five months rent calculated at the rate of Rs. 50/-per month). Hence the full amount claimed by the plaintiff had been fully secured. If there was any delay, in making the deposits, it was liable to be condoned.

5. Being aggrieved by the aforesaid order passed by the trial court, the plaintiff went up in revision before the District Judge. The District Judge allowed the revision application vide his order dated 24th of May, 1977. He pointed out that according to Order 15 Rule 5 of the Code of Civil Procedure the defendant should have deposited the entire amount of rent or compensation for use and occupation admitted by him to be dueat or before the first date of hearing and thereafter throughout the continuance of the suit he should continue to deposit regularly the amount of monthly rent or compensation for use and occupation at the rate admitted by him. He observed that while claiming that the entire rent stood deposited, the defendant sought to adjust a sum of Rs. 471.19 being the costs of electric installation made by him which he was not entitled to do. It, therefore, followed that the defendant did not deposit the rent admittedly due from him. The District Judge further pointed out that the fact that the trial court purported to condone the delay in depositing the amount itself showed that various amounts which had been deposited by the defendant had not been deposited at or before the first date of hearing and there being no representation by the defendant explaining the reason why the amount could not be deposited at or before the first date of hearing, the trial court could not condone the delay without assigning any reason for such condonation. The learned District Judge, therefore, was of opinion that the trial court acted illegally in the exercise of its jurisdiction in condoning the delay in making the deposit, Accordingly the defence of the defendant was liable to be struck off. He, therefore, allowed the revision and set aside the order dated 25th of November, 1976 passed by the trial court and directed that the defence of the defendant should be struck off. Civil Revision No. 1154 of 1977 is directed against the aforementioned order passed by the District Judge on 24th of May, 1977.

6. When the case went back to it. The trial Court observed that the defence of the tenant stood struck off. Accordingly, after ignoring the defendant's written-statement, it proceeded to decree the plaintiff's suit vide its judgment dated 30th of May, 1977 and Civil Revision No. 1163 of 1977 is directed against that judgment.

7. Order 15 Rule 5 of the Code of Civil Procedure, as it stood at the relevant time, ran thus:--

'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 use of or occupation thereof, whether instituted before or after the commencement of the Uttar Pradesh Civil LawsAmendment 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 would deposit regularly, the amount at 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 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 oft his defence.'

According to this provision the defence of a tenant is liable to be struck off if he fails to deposit the rent or compensation for use and occupation, admitted by him to be due, at or before the first date of hearing and also if he fails to continue to deposit regularly the amount of monthly rent or compensation for use and occupation of the premises at the rate admitted by him unless he makes a representation on considering which and on furnishing security for making the deposit the court allows him further time to make the deposit.

8. In the instant case, we find that the court had fixed 19th of May, 1976 as the date for filing of the written-statement but no hearing on that date took place and the case was adjourned and eventually 16th of September, 1976 was fixed for filing of the written-statement. On that date the defendant filed the written-statement. It thus appears that the 16th September, 1976 was the first date on which any hearing in the suit can be said to have taken place and what has to be seen it whether the defendant admitted that any rent or damages for use and occupation of the premises was due from him on that date and whether he had deposited the same at or before that date.

9. A perusal of the written-statement filed by the defendant in this case shows that his case was that he had paid the rent up to September, 1974 directly to the landlord. Subsequently he deposited the rent under Section 30 of the U. P. Act No. 13 of 1972 in the Court of Mun-sif, Varanasi, in Misc. Case No. 47/1976, decided on 19th April, 1975 after validly adjusting the amount of Rs. 43.80 paid towards water tax and Rs. 471.19 spent by him in connection with the restorationof electricity connection, permitted by the Prescribed Authority vide its order dated 15-3-1975 in Misc. Case No. 44 of1975. Entire rent due up to May, 1976, therefore, stood paid up by the deposit made under the tender dated 15th of May, 1976. Subsequently the defendant deposited the rent for the months of June to August, 1976 amounting to Rs. 150/-in the trial court vide tender dated 12th of August, 1976. The case of the defendant, therefore, was that all his liability to pay rent or damages for use and occupation of the premises in question, upto the period ending August, 1976 stood discharged before 16th September, 1976 and that no rent or amount for use and occupation of the premises was due against him on the date when the first hearing in the suit took place.

At this stage we are not concerned with the question as to whether the defendant was legally entitled to adjust against the rent payable by him, the amount which he claims to have spent in getting the electricity connection restored with the permission of the Prescribed Authority. Suffice it to say, that the defendant claimed that by virtue of the deposits made by him in accordance with the orders made in proceedings under the U. P. Act No. 13 of 1972 and those made by him in the trial court before the first hearing; his liability to pay rent up to the first date of hearing stood discharged, and that nothing further was due from him on account of rent due up to the date on which the first hearing took place. As the defendant did not admit that any rent or other amount for use and occupation of the premises was due, no question of his depositing any further amount or compensation for use and occupation of the premises on that account, at the first hearing or before 16th of September,1976, arose. The defence of the defendant, therefore, could not be struck off under Order 15 Rule 5 of the Code of Civil Procedure on the ground that the defendant did not deposit in court the amount towards rent or compensation for use and occupation of the premises in dispute which was admittedly due from him at the first hearing or before 16th of September, 1976 (the date on which the first hearing took place). As the defendant in this case did not admit that any amount by way of rent or compensation for use and occupation of the premises was due from him at the time when the first hearing took place on 16th of September, 1976, no question of his making a representation seeking further time to make such deposit, arose.

10. In this view of the matter, we are of the opinion that the defence of the applicant was not liable to be struck off on the ground put forward by the plaintiff and the order dated 24th May, 1977 passed by the District Judge cannot be sustained. The revision application No. 1154 of 1977, therefore, succeeds and is allowed with costs. The order under revision is set aside and that passed by the trial court on 25th of November, 1976 is restored.

11. Coming now to Revision No. 1163 of 1977, we find that the trial court decreed the plaintiff's suit after striking off the defence as per orders of the District Judge dated 24th of May, 1977 which order has been set aside by us. In the circumstances the order decreeing the plaintiff's suit after striking out the defence of the applicant can also not be sustained. Revision Application No. 1163 of 1977, therefore succeeds and is allowed. The order dated 30th of May, 1977 passed by the trial court is set aside. The case will now go back to the trial court with the direction that it shall be restored to its original number and decided in accordance wth law. In the circumstances, we direct the parties to bear their own costs.


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