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Smt. Saraswati Devi Vs. B.C. Kundu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 589 of 1978
Judge
Reported inAIR1981All259
ActsCode of Civil Procedure (CPC) , 1908 - Order 15, Rule 5; Uttar Pradesh Laws (Reforms and Amendment) Act, 1976
AppellantSmt. Saraswati Devi
RespondentB.C. Kundu and anr.
Appellant AdvocateVindheswari Prasad, Adv.
Respondent AdvocateOm Prakash Agrawal, Adv.
DispositionRevision dismissed
Excerpt:
.....be due from him along with certain other sums of money mentioned in order 15, rule 5 on the first date of hearing. that rule was amended by this court and subsequently by uttar pradesh civil laws (reforms and amendment) act, 1976, this rule was substituted and sub-rule (1) thereof reads as under :5. striking off defence on failure to deposit the admitted rent, etc. where before an order striking off the defence is made, the tenant makes a representation seeking further time for depositing the arrears, the court has to, before making such an order, consider the representation and it will be able to make the order striking off the defence only, if it finds that the explanation given by the tenant is unsatisfactory or that he has failed to make out a case for extension of time. in the..........be due from him along with certain other sums of money mentioned in order 15, rule 5 on the first date of hearing. that rule was amended by this court and subsequently by uttar pradesh civil laws (reforms and amendment) act, 1976, this rule was substituted and sub-rule (1) thereof reads as under :--'5. striking off defence on failure to deposit the admitted rent, etc. -- (1) in any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first date of hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per sent per annum and whether or not he admits any amount to be due, he.....
Judgment:
ORDER

R.R. Rastogi, J.

1. This is plaintiff's revision under Section 25 of the Provincial Small Cause Courts Act. The brief facts are these. The plaintiff Smt. Champa Devi (who died during the pendency of the suit) and Smt. Saraswati Devi were owners of house No. 26-D Charu Chandra Mitra Road, Allahabad and the defendant opposite party was a tenant of a portion of it on a monthly rent of Rs. 50/-. The defendant committed default in payment of rent and after terminating his tenancy the plaintiff filed a suit for his eviction and for arrears of rent and damages. Ad litem and future interest was also claimed.

2. The suit was filed on small causes court side in the court of Judge, Small Causes, Allahabad and a summons was issued to the defendant fixing 26-7-1977 for hearing. That summons was duly served. The defendant appeared on that date and filed written statement and on that very date he also deposited the entire amount of rent along with water tax payable by him till 31-7-1977. He however, did not deposit the interest on the amount claimed. On that account the plaintiffs moved an application (13-c) on 25-10-1977 under Order 15, Rule 5 of the Code of Civil Procedure for striking off the defence. The defendant filed an objection (14-C) on 16-11-1977 and also deposited the requisite amount of interest on 17-11-1977. After hearing parties, the trial court observed that inasmuch as substantial compliance of the provisions contained in Order 15, Rule 5 had been made, there was no justification for striking off the defence and on that view dismissed the plaintiff's application. The present revision has been preferred against this order.

3. By means of the amendment introduced by the U. P. Civil Laws (Reforms and Amendment) Act, 1972 Order 15, Rule 5 of the Code of Civil Procedure was amended providing for striking off the defence of a tenant defendant in the event of his failure to deposit the entire arrears of rent admitted to be due from him along with certain other sums of money mentioned in Order 15, Rule 5 on the first date of hearing. That rule was amended by this court and subsequently by Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976, this rule was substituted and Sub-rule (1) thereof reads as under :--

'5. Striking off defence on failure to deposit the admitted rent, etc. -- (1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first date of hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per sent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the court may subject to the provisions of Sub-rule (2) strike off his defence.'

Explanation I to this sub-rule defines the expression 'first hearing' to mean the date for filing written statement or for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. The expressions 'any amount admitted by him to be due' and 'monthly amount due' have been respectively defined in Explanations II and III. It is not necessary to reproduce the same for the present purpose. Sub-section (2) says that before making an order for striking off the defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within ten days, of the first hearing or, on the expiry of the week referred to in Sub-section (1) as the case may be. Sub-section (3) and the two provisos thereto are not relevant for the point under consideration.

4. It would be seen that the material expression is the first date of hearing and as noted above that has been stated to mean the date for filing written statement or for hearing mentioned in the summons. Two questions arise in this behalf: whether this provision is mandatory or directory and secondly, what is the import of the expression 'first date of hearing'. In so far as the first question is concerned in Brij Gopal v. Ratan Chand (1980 All LJ 690) it has been laid down by a Division Bench of this Court that till the first hearing of the suit takes place the tenant can save himself of the consequences of being in default by his own action by depositing the arrears of rent and if that is done, then no question of making a representation by him arises. Such a representation for extending the time for depositing the arrears of rent, can be made only after the first hearing of the suit takes place. It has been further laid down that the Rule neither provides that an order striking off the defence must be made simultaneously with the commission of default nor does it lay down any time limit for making such an order and there is nothing in the rule which prevents a tenant from making a representation before an order, striking off his defence is actually made. Where before an order striking off the defence is made, the tenant makes a representation seeking further time for depositing the arrears, the court has to, before making such an order, consider the representation and it will be able to make the order striking off the defence only, if it finds that the explanation given by the tenant is unsatisfactory or that he has failed to make out a case for extension of time.

5. Following this decision a learned judge of this Court in Benaras Education Society v. Vth Addl. District and Sessions Judge (1980 All LJ 695) has taken the view that this rule does not compel the court to strike off the defence, It only vests a discretion in the court to strike off the defence. In Ved Prakash Wadhwa v. Vishwa Mohan (1980 All WC 395 (SC)) while considering the import of similar expression 'at the first hearing of the suit' occurring in Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 the Supreme Court has taken the view:--

'What is the first hearing of the suit Certain decisions have been rited before us of the Allahabad High Court which indicate that the first hearing of the suit is when, after the framing of issues a suit is posted for trial, that is, production of evidence. In the matters of State statutes where procedure has to be pronounced upon, the practice of the court is the best guide to interpretation and the Allahabad High Court having pronounced upon the question we think we should ordinarily accept such interpretation unless there is something revoltingly wrong about the construction,'

The interpretation put by this court on these words was approved by the Supreme Court. In other words, the expression 'at the first hearing of the suit' means the date on which the suit is posted for trial or production of evidence.

6. In view of the discussion above, without pronouncing on the aspect as to whether the provision is mandatory or directory two principles seem to be established : Firstly that Order 15, Rule 5 only vests a discretion in the court to strike off the defence and does not compel it to do so and secondly that first hearing of the suit means the date posted for trial or production of evidence.

7. In the present case, of course, the notice issued to the defendant opposite-party for 26-6-1977 was for hearing and on that date the defendant appeared and deposited the entire amount of arrears of rent and damages as also water tax due up to 31-7-1977. He, of course, did not deposit the amount of interest. The suit, however, was not taken up on that date for hearing. Before the hearing could take place, an application was given on behalf of the plaintiff-applicant for striking off the defence on account of the aforesaid default, but before that matter could be disposed of, the defendant-opposite-party made a representation and deposited the amount of interest as well. In my opinion, therefore, in these circumstances it cannot be said that the disscretion vested in the court below has been exercised capriciously or arbitrarily so as to justify any interference by this court. Apart from this in Benaras Education Society (1980 All LJ 695) (supra) it has also been held that an order striking off the defence even if not challenged immediately can be challenged subsequently along with the final decree made in the case.

8. In view of the above discussion, this revision fails and is dismissed with costs to the defendant-opposite-party.


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