Maqsood Ali v. Shamsher Khan

K.C Agarwal, J.:— This revision is directed against a judgment of the Judge Small Cause Courts dated 27.4.1975 decreeing the suit of the plaintiff-opposite party for ejectment of the defendant-applicant and for recovery of the arrears of rent.

2. Suit no. 325 of 1973 had been filed by the plaintiff-opposite party for ejectment of the defendant. The plaintiff claimed that he was the Mutwalli, Manager and administrator of the Waqf property no. 8/538 Takia Wazirshah, Hing-Ki-Mandi Agra and that the defendant was the tenant of one of the shops of the aforesaid property on a monthly rent of Rs. 8/-.

3. The plaintiff claimed that as the defendant had not paid the rent despite the service of the notice of demand he was liable to ejectment.

4. The suit was contested by the defendant. In paragraph 1 of the written statement he alleged that the plaintiff was neither the Mutwalli, Manager nor the Administrator of the property in suit and that the property was not a waqf property. The defendant also claimed that he was not a tenant on behalf of the plaintiff.

5. During the pendency of the suit an application was filed by the plaintiff opposite party for striking off the defence on the ground that as the defendant-applicant had not deposited the rent under Order 15 Rule 5, C.P.C, the written statement was liable to be struck off. The application was contested by the defendant applicant. On 28th April, 1975 the Court accepted the case of the plaintiff-opposite party and struck out the defence. Thereafter, the court decreed the suit on 29th April, 1975. Against the said decree, the defendant-applicant went up in revision to the District Judge. The revision was also dismissed. Hence this second revision.

6. The main question that arises for determination in the present revision is whether the order striking off the defence was valid and could be sustained. In the instant case, the defendant did not admit the title of the plaintiff-opposite party and asserted that as there was no relationship of landlord and tenant between him and the plaintiff, the suit of ejectment was not maintainable. The plaintiff-opposite party had also claimed that the property was not the Waqf property and that the defendant was not its tenant.

7. Under Order 15 Rule 5, C.P.C a lessee is liable to deposit the arrears of rent and compensation for use and occupation on or before the first hearing of the suit and thereafter throughout the continuance of the suit deposit regularly the amount of monthly rent or compensation for use and occupation due at the rate admitted by him. This rule 5 further empowers a Court that in the event of any default in this regard, the Court would be entitled to refuse to entertain any defence or as the case may be, strike off this defence. For applying rule 5 of Order 15, it is necessary that the relationship of landlord and tenant should exist. The provisions of Order 15 Rule 5 cannot be applied to a case where a suit is not filed by the lessor for the eviction of a lessee from any immovable property after the determination of his lease. It, is, therefore, a condition precedent for the exercise of jurisdiction under Order 15 Rule 5 that the relationship of landlord and tenant must be found.

8. In the instant case, the Judge Small Causes did not give any finding that the relationship of lessor and lessee existed. Without determining the said question the written statement of the defendant could not be struck out. In a case, therefore, where the defendant denies existence of the relationship of landlord and tenant between the plaintiff and himself, the Court is bound to decide that issue before passing an order under Order 15 Rule 5, C.P.C The implied effect of this denial of relationship is that according to the defendant the provisions of Order 15 Rule 5, C.P.C does not apply and the court has no jurisdiction to pass a decree for eviction against him. In such a case, it is incumbent upon the court to first of all decide the issue as to the existence of the relationship of the landlord and the tenant and if after deciding the said issue the Court comes to the finding that the relationship existed, an order striking off the defence could be made under Order 15 Rule 5, C.P.C

9. Under Order 15 Rule 5 C.P.C the defendant is liable to pay the admitted rent. If, therefore, a defendant does not admit the liability, the written statement cannot be struck out. The proper course, therefore, in such a case always would be to decide that controversy first and determine whether the denial of relationship of landlord and the tenant raised by him with regard to the title of the plaintiff was bona fide or a mere pretence and without any merit. If the Court finds that the denial is unjustified and there was no substance in that denial, the court could proceed to make an order for deposit of rent or compensation for use and occupation if other conditions laid down in Order 15 Rule 5 C.P.C exist.

10. As already stated above, since no finding has been given by the Court below at the time of the striking off the defence the order dated 28.7.1975 and 29.4.1975 passed by the courts below are liable to be set aside. As the suit had been decreed without considering the defence, the judgment of the District Judge dated 9.7.1975 and that of the Judge Small Causes dated 29.4.1975 are set aside and the Judge Small Causes Court is directed to proceed with the suit in accordance with law. It will be open to it to decide the question of striking off the defence again if it finds that the denial of title by the defendant was unjustified.

11. In the result, the revision succeeds and is allowed. The judgments and orders of the courts below dated 29.7.1975 and 29.4.1975 are set aside and the Judge Small Causes Court is directed to decide the suit afresh in accordance with law and in the light of the observations made above. Under the circumstances, the parties shall bear their own costs.