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Mrs. S. Abel Vs. the District Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 7268 of 1979
Judge
Reported inAIR1980All302
ActsCode of Civil Procedure (CPC) 1908 - Order 15, Rule 5, 5(1) and 5(2)
AppellantMrs. S. Abel
RespondentThe District Judge and ors.
Appellant AdvocateB.D. Madhyan, Adv.
Respondent AdvocateS.N. Verma and ;D. Kakkar, Advs.
DispositionPetition dismissed
Excerpt:
.....- representation should be made within 10 days which is pre-emptory in nature - money is not deposited or representation not made within time - striking off defence - proper. (ii) deposit of monthly rent - order 15 rule 5 code of civil procedure, 1908 - monthly rent should be deposited in that court only where the suit is pending and not in any other court. - - 3 sought eviction of the defendant from the suit premises on two grounds, (i) failure to pay arrears of rent despite service of notice of demand and, (ii) illegal subletting of a part of premises to sri m. --striking off defence on failure to deposit admitted rent, etc. it may be noted here that the failure to observe a directory provision does not affect the validity of act done. in case of a directory provision there..........or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum 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. the expression 'first hearing' means the date for filing written statement or for hearing mentioned in the summons or where more than one of such.....
Judgment:
ORDER

K.C. Agrawal, J.

1. This writ petition is directed against a judgment of the District Judge, Allahabad dated January 24, 1979 rejecting a revision of the defendant-petitioner (hereinafter referred to as the defendant) filed under Section 25 of the Provincial Small Cause Courts Act.

2. The facts briefly stated are these. Smt. Kamla Kumari Jaiswal was the owner and landlord of bungalow No. 3, Cassels Road, Allahabad of which the petitioner was a tenant. The house had been let out to the petitioner on a monthly rent of Rs. 40/-. A notice dated October 5, 1976 was served on the defendant making a demand of rent from her. Thereafter on November 8, 1976 respondent No. 3 sought eviction of the defendant from the suit premises on two grounds, (i) failure to pay arrears of rent despite service of notice of demand and, (ii) illegal subletting of a part of premises to Sri M. M. Haroo, respondent No. 4.

3. After service of the notice of the suit, a written statement was filed by the petitioner denying the allegations on which the suit had been filed against her. According to her she had not sublet the premises in dispute to respondent No. 4 and that he had been allowed to stay as a care-taker for some time during the defendant's absence, when she had left for England for her own treatment. The defendant's defence as regards the amount due to respondent No. 3 by way of rent as narrated in para 4 of her written statement dated September 28, 1977 was that the rent was in deposit in the Court of Munsif West, Allahabad and as such no rent was due to respondent No. 3. Paragraph 4 of the written statement is reproduced below:--

'That no rent is due to the plaintiff against defendant No. 1, as rent from 1st July 1976 to 30th June 1977, has already been deposited in the court of Munsif West, Allahabad.'

4. On March 17, 1978, respondent No. 3 moved an application for striking out the defence on the ground that since the defendant had not complied with the provisions of Order XV, Rule 5 of the Code of Civil Procedure, her defence was liable to be struck off. An objection to the application for striking out the defence moved by the respondent No. 3 was filed by the petitioner. The objection taken on her behalf was that she had tendered rent to respondent No. 3 in October 1976 and on her refusal to accept the same it was remitted by her by money-order and on her further refusal to accept the same, permission to deposit the same in the court of Munsif West Allahabad under Section 30 of the U. P. Act XIII of 1972 was obtained. The petitioner asserted that rent from July 1, 1976 to 31st July 1978 had already been deposited in the court of Munsif, Allahabad. She claimed that as the respondent No. 3 had sought the striking out of the defence on the ground that the defendant-petitioner had not deposited rent in the court of the Judge Small Causes (where the present suit was pending), therefore she was willing to deposit rent to the credit of the respondent No. 3 in this Court. The prayer made in the application was;

'It is therefore, most humbly prayed that this Hon'ble Court may be pleased to allow permission to the petitioner to deposit rent in this Court since September 1977 to 31st December 1978 and the petitioner as the duty bound shall ever pay,'

5. The application of the respondent No. 3 for striking out the defence was allowed and the prayer made by the defendant-petitioner to permit her to deposit rent since September 1977 to 31st December 1978 was refused on 18th March 1978. The defendant's revision filed by the petitioner was also dismissed on January 24, 1979, This led to the filing of the present writ,

6. For convenience's sake a portion of Order XV, Rule 5 of the Code of Civil Procedure with which we are concerned in the present case may be quoted below:--

'Striking off defence on failure to deposit 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 hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum 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. The expression 'first hearing' means 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.

Explanation 2. -- The expression 'en-tire amount admitted by him to be due means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, deposited in any court under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Explanation 3. The expression 'monthly amount due' means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deductions except the taxes, if any, paid to a local authority in respect of the building on lessor's account.

(2) Before making an order for striking off defence, the court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days, of the first hearing or, of the expiry of the week referred to in Sub-rule (1), as the case may be.' Order XV, Rule 5 of the Code of Civil! Procedure was enacted by U. P. Act No. XIII of 1972. The said provision was different than the one which had been enacted by U. P. Act No, 57 of 1976 which came into force on January I, 1977, Unlike the old provision, the amendment has now provided the time during which a representation could be filed for condonation of de-fault in making the deposit of rent.

7. The object of adding Rule 5 of Order XV was to deter the tenants from contesting suits for ejectment) without having to pay any rent or damages to the landlord and letting such arrears to accumulate to the prejudice of the plaintiff. This had been made due to the experience that a large number of tenants did not pay rent and continued frivolous litigations. To curb the tenants from unnecessarily prolonging the litigations the legislature was compelled to make a provision to the above effect. Order XV, Rule 5 applies to a suit which is filed 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. If in such a suit the defendant) does not dispute his liability to pay and still does not deposit the rent his defence would be liable to be struck off. The defence can be struck out on the ground that the defendant does not deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum on the date of first hearing and also on the ground that throughout the continuation of the suit regularly the monthly amount due within a week from the date of its accrual is not deposited. The power to strike out the defence is, however, subject to Sub-rule (2). Sub-rule (2) has been quoted above. Under this Sub-rule before making an order for striking off 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 of the expiry of the week referred to in Sub-rule (1) as the case may be.

8. The question that now arises is whether the use of the word 'may' in the main provision of Order XV Rule 5 of the Code of Civil Procedure is discretionary and that court may refuse to strike off the defence even if the requirement of deposit has not been complied with. The use of the word 'shall' or 'may' is not conclusive. For deciding as to whether the provision is mandatory or directory one has necessarily to see the intention and purpose behind the framing of the rule. The subject matter and the importance of the provision, the relation of that provision to the general object intended to be secured by the Act, is also relevant for deciding as to whether the provision is directory.

9. It was observed in Brett v. Brett (1826) 3 Add 210 at p. 216 that 'the key to the opening of every law is the reason and spirit of the law, it is animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.' The question as to whether statute is mandatory or directory depends upon the intent of the legislature and upon the language in which the intent is clothed. Reference must also be made to the context and object of the statute in determining whether the same is mandatory or directory. It may be noted here that the failure to observe a directory provision does not affect the validity of act done. There is, however, a distinction between a directory provision and a discretionary power. In case of a directory provision there is no discretion and it is intended to be obeyed but a failure to comply with it, does not result in nullifying an act. A discretionary power confers on an authority the power to condone the default.

10. The question as already posed above was whether the expression 'may' is used in the main provision in mandatory context. The argument advanced on behalf of the petitioner was that the word 'may' in this provision conferred a discretion on the court and that the court could refuse to strike off the defence despite the failure of a defendant to make the deposits required by it. What appears material to find out the meaning of the word 'may' is the intention of the legislature. The main provision of Order XV Rule 5 of the Code of Civil Procedure after having used the word 'may' lays down that the striking out of the defence would be subject to the provision of Sub-rule (2); the court, therefore, will have to have regard to Sub-rule (2) before striking off the defence. Sub-rule (2) entitled the defendant to make a representation. The representation has to be made explaining the reasons or giving the cause for failure to make the deposit as required by the main provision. If on such a representation, the court is satisfied that the defendant had a justifiable cause for not having deposited the amount, it can condone the same and may exonerate the defendant of the liability of his defence being struck out. The representation, however, has to be made within 10 days of the first hearing or of the expiry of the week referred to in Sub-rule (1). The representation if not made within the period of ten days the court will not be entitled to look into it and to condone delay in making the deposit. The requirement of filing the representation within ten days is peremptory in nature. It does not leave any discretion with the authority to entertain a representation after the expiry of ten days and to relieve the tenant of his default.

11. The legislature used the word 'may' in Order XV since it conferred power on the Court to condone if a representation is made within 10 days of the default. If, however, a representation is not made within 10 days or the representation filed by the defendant appears to be untenable the inevitable course before a court would be to strike off the defence.

12. Sh. Hem Chand v. The Delhi Cloth and General Mills Co. Ltd., AIR 1977 SC 1986 supports the above view. Section 15(1) of the Delhi Rent Control Act required a defendant to pay or deposit rent within one month from date of order. The defendant of that case did not deposit the rent within the time stipulated by the Act. The Supreme Court held that the Rent Controller had no discretion to extend time prescribed under Section 15(1), It appears to me that when the time is limited by the provision made in an Act itself, it will not be possible for the authority dealing with the matter to extend time, particularly, when the consequences of failure have been provided for in the Act.

13. The words 'subject to' used in Order XV introduce a condition or proviso. On a proper interpretation of Order XV, the expression 'subject to' only means that the power of the court to refuse to strike off the defence is conditional upon the observance of the conditions prescribed in Sub-rule (2).

14. In K. R. C. S. Balakrishna Chetty and Sons & Co. v. State of Madras, AIR 1961 SC 1152. the Supreme Court was required to consider the meaning of the expression 'subject to' used in the Madras General Sales Tax Act. Interpreting those words the Supreme Court observed:

'The use of the words 'subject to' has reference to effectuating the intention of the law and the correct meaning is 'conditional upon'.' Applying the said meaning of the words 'subject to' which suits the context of the present Act as well, the observance of conditions of Sub-rule (2) was necessary for the condonation of default in making the deposit Looking at the whole thing, I am led to hold that the word 'may' cannot be considered to have conferred discretion on the authority to refuse to strike off the defence even in a case where the defendant does not make a representation within the time stipulated by Sub-rule (2). The court would be obliged to strike out the defence if neither the money is deposited in the manner prescribed nor is a representation filed within the time provided for making it. If such an occasion arises, the court will have no option but to strike off the defence. The use of the word 'may' does not mean that the power conferred was discretionary and that the court could refuse to strike off the defence despite the non-observance of the condition stated above.

15. In Sharif-ud-din v. Abdul Gani, (AIR 1980 SC 303), dealing with the difference between a mandatory rule and directory rule, the Supreme Court held:

'Whenever a statute prescribed that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow'.

16. In Textile Commissioner v. Sagar Textile Mills (P.) Ltd., (AIR 1977 SC 1516), the Supreme Court laid down that:

'It is well settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context and that where a discretion is conferred upon a public authority coupled with an obligation, the word 'may', which denotes discretion, should be construed to mean a command. Considering the purpose of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power we are clear that the power conferred on the Textile Commissioner to issue directions is coupled with the duty to specify the particular period for which the directions shall be operative.'

17. Relying upon a decision of the Supreme Court in Civil Appeal No. 854 of 1977, Shyam Charan Sharma v. Dharmadas, decided on 4-12-1979: (Reported in AIR 1980 SC 587), the learned counsel for the petitioner urged that in a similar matter dealing with the question of striking off of defence, the Supreme Court held that the use of the word 'may' in Section 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 conferred a discretion on the court to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by Section 13 (1). Hence this court should also apply the ratio of the said case to the present and take the same view. The submission is not acceptable. The provisions of the Madhya Pradesh Accommodation Act are materially different than those of the U. P. Act No. XIII of 1972. It is settled law that the meaning of the word must be gleaned from the context in which it is used. A reference of the similar expression used in a different Act is not of any assistance in determining its meaning in Order XV, Rule 5 of the Code of Civil Procedure. Reiterating the principle that it is not a sound principle of construction to interpret expression used in one Act with reference to their use in another Act, more so if the two Acts in which the same word is used are not cognate Acts, the Supreme Court observed in S. Mohan Lal v. R. Kondiah, AIR 1979 SC 1132.

'Neither the meaning nor the definition of the terms in one statute affords a guide to the construction of the same terms in another statute and the sense in which the term has been understood in several statutes does not necessarily throw any light on the manner in which the term should be understood generally. On the other hand it is a sound, and, indeed a well known principle of construction that meaning of words and the expression used in an Act must take their colour from the context in which they appear.'

So the context and object being different it is not possible to apply the law laid down by the Supreme Court in Shyam Charan Sharma's case (supra) to the facts of the present case. Counsel had also referred to two decisions of this Court interpreting Order XV, Rule 5 of the Code of Civil Procedure. Those cases did not concern themselves with the present Order XV, Rule 5 and, therefore, have no bearing on the controversy involved in the present writ petition before me.

18. It may be pointed out here that the defendant-petitioner did not even file any application or representation for condonation of default in making the deposit. From the judgment it would appear that even arguments were not addressed to them on this controversy and no prayer for condonation had been made to them. It is for the first time in the writ petition that the argument was advanced by the learned counsel for the petitioner.

It is not open to this Court to treat the application made on 18th March 1978 is a representation and to condone the default when admittedly the said application had neither been filed within the time contemplated by sub-rule (2) of Order 15, Rule 5 of the Civil P. C. nor contained any ground and prayers for condonation for default. Under this rule, the representation should have been made within 10 days of the first hearing or, of the expiry of the week referred to in Sub-section (1). The defendant-petitioner filed the written statement in September 1977 but thereafter he did not either deposit the rent in the Court where the suit was pending or made a representation within 10 days of the first hearing or, of the expiry of the week referred to in Sub-rule (1). Since this had not been done the Court cannot help the defendant-petitioner.

19. Counsel for the petitioner next contended that the deposit made by the petitioner in the proceedings under Section 30 of the U. P. Act, Act No. 13 of 1972, could be considered as an authority and of good deposit for the purpose of Order 15, Rule 5 of the Civil P. C. and, therefore, the failure to deposit the amount in the Court where the suit was pending was inconsequential. The submission made is devoid of sub-stance. The word 'Court' means the Court before which the suit is pending and not any other Court. The deposit, therefore, of the monthly rent throughout the continuation of the suit has to be regularly made in the Court where the suit is pending. Any deposit made elsewhere will be of no avail to a defendant. It is not correct to say that this interpretation made on the word 'Court' is technical and that may deprive the defendant of his valuable right although he is not in default. The submission is not acceptable. The result may be unfortunate but the same is irresistible. The legislature does not want a defendant to make deposit of future rent in any other Court than the one before which the suit is pending. It is, therefore, not possible for me to accept that the deposit of rent in any other proceedings than in the suit would disentitle the plaintiff of the right conferred by Order 15, Rule 5 of the Civil P. C.

20. At this place reference may be made to Expln. 2 to Order 15, Rule 5 of the Civil P. C. Under this Explanation, the expression 'entire amount admitted by him to be due' has been explained. This entitles the defendant to deduct the amount deposited in any Court under Section 30 of the U. P. Act No. 13 of 1072, therefore on the date of the filing of the written statement the defendant can lawfully deduct the amount claimed by the plaintiff which has already been deposited under Section 30 of the U. P. Act No. 13 of 1972. He may deposit the balance after deducting the same. Such a deduction would not cause any harm to his interest and the failure to deposit the same will not result in striking off the defence. But so far as monthly amount due is concerned, the legislature made a different scheme. It did not entitle the defendant to go on making deposit under Section 30 of the U. P. Act No. 13 of 1972, once he has filed written statement in the suit. After having filed the written statement, the defendant is required to deposit the rent regularly throughout the continuation of the suit in the Court itself, and that he will have no right to deposit the same in the proceedings under Section 30 of the U. P. Act No. 13 of 1872, although the same is continuing since before the filing of the suit for ejectment against him. Explanation 3 to Order 15, Rule 5, clearly provides that the expression 'monthly amount due' means the amount due every month. In case of monthly amount, the only right conferred on the defendant under this Explanation is to deduct the taxes. It clearly lays down that no other deductions except the taxes would be permissible to be made by the defendant. The legislature advisedly made a different scheme for depositing monthly amount.

21. For these reasons, I find that the defendant-petitioner was not entitled to claim the benefit of the deposit made under Section 30 of the U. P. Act No. 13 of 1972 in respect of monthly rent. Admittedly, the petitioner did not deposit the rent in the present proceedings hence the written statement was rightly struck off. For the view taken by me, I am supported by a decision of Hon'ble N. D. Ojha, J. given in C. R. No. 80 of 1980;).

22. In the result, the writ petition fails and is dismissed but in the circumstances I direct the parties to bear their own costs.


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