1. This defendant's revision arises out of a suit for ejectment and for recovery of arrears of rent, water tax and damages for use and occupation of the shop situated at Uikhimpur Kheri, (for short the 'shop in dispute') and is directed against the Judgment and order dated 21.5.1985 passed by IInd Additional District Judge/Judge, S.C.C., Lakhimpur Kheri, striking off the defence of the defendant-applicant under Order XV. Rule 5, C.P.C.
2. Brief and relevant facts of the case are that the plaintiff-respondent filed S.C.C. No. 9 of 1983 for ejectment of the applicant from the shop in dispute and for recovery of arrears of rent etc.. on the ground of default, after serving the notice of demand and termination of tenancy. The suit was contested by the defendant-applicant, who has disputed rate of rent and pleaded that the amount of Rs. 5.000 was already deposited by him as security, if the said amount is adjusted in the amount of rent, he could not be held to be defaulter. During the pendency of the suit, application No. 44C was filed by the plaintiff-respondent, praying to strike off the defence, under Order XV, Rule 5. C.P.C. It was stated that the defendant-applicant failed to deposit the admitted rent and interest in accordance with the provisions of the aforesaid rule. Therefore, his defence was liable to be struck off. Said application was objected to and opposed by the defendant applicant, alleging that the rent for the period commencing from 1.9.1980 to 30.4.1985 was already deposited in the Court. Therefore, there was no question of striking off his defence, and that application filed by the plaintiff-respondent was liable to be rejected. After hearing the learned counsel for the parties. Court below allowed the application filed by the plain tiff-res port dent and struck off the defence of the defendant-applicant vide its judgment and order dated 21.5.1985. The Court below has recorded following finding in the impugned order :
"5. The defendant did not deposit any interest 9% per annum on the amount of arrears of rent of Rs. 18,000 deposited by him on 13.8.1984. Thus, he failed to comply with the
provisions of Order XV. Rule 5 (1). C.P.C. Thus, the defendant failed to make the deposits in accordance with the
provisions of Order XV, Rule 5. C.P.C. and therefore the defence of the defendant is liable to be struck off. The application 44-C is allowed. The defence of the defendant is struck off under
Order XV. Rule 5, C.P.C."
3. It was in the year. 1985 that the above noted revision was filed in this Court. This Court entertained the revision and also granted interim order, staying the further proceedings in the suit. Since then, the proceedings of the suit are heldup.
4. Learned counsel for the applicant vehemently urged that the Court below has acted illegally and with material irregularity, in striking off the defence of the defend ant-applicant, inasmuch as, amount of Rs. 5.000 was already deposited by the applicant, with the landlord, Said amount, if adjusted will cover the amount of interest. Therefore, there was no justification for the Court below to strike off the defence. It was also urged that the striking off the defence was discretionary for the Court below. Under the facts and circumstances of the case, the Court below should not have struck off the defence, as discretion should be exercised judiciously. It was also urged that this Court should condone the irregularity, if any, in payment of the amount of arrears of rent and interest and should permit the applicant to deposit the amount, if any, outstanding against him.
5. On the other hand, learned counsel for the contesting respondent vehemently urged that the applicant having failed to comply with the provisions of Order XV, Rule 5, C.P.C.. has failed to deposit the amount of interest, as it is evident from the findings recorded by the Court below. Therefore, the Court below did not commit any error of law and jurisdiction in striking off the defence of the applicant. It was also urged that the question as to whether any amount was deposited by the applicant, as security or not. Is the disputed question of fact. At this stage, there is no question of adjustment of the said amount, towards amount of interest, which was required to be deposited under Order XV, Rule 5, C.P.C. It was submitted that the Court below has judiciously exercised its discretion, and defence has rightly been Struck off in the present case. It was further submitted that under the facts and circumstances of the present case, there arises no question of condonation of illegality committed by the applicant, in compliance of the provisions of Order XV, Rule 5, C.P.C.
6. I have considered the submissions made by learned counsel for the parties.
7. Order XV, Rule 5, C.P.C. provides as under :
"5. Striking off defence on failure to deposit 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.--(1) (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-section (1), as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff :
Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited.
Provided further that if the amount deposited Includes any sums claimed by the depositor to be deductible on any. account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."
8. A reading of the aforesaid rule reveals that power to strike off the defence of the lessee in a suit for eviction is discretionary with the Court, trying the suit. The Court may, under the facts and circumstances of a particular case, refuse to strike off the defence, in spite of non-compliance of the provisions of aforesaid rule. A reference in this regard may be made to the decision in Vimal Chand Jain v. Gopal Agrawal, AIR 1981 SC 1657.
9. The above noted decision and other decisions on the point, were taken into consideration by this Court in Hari Shanker Kapoor v. IInd Additional District Judge, 1985 (2) LCD 274. Under the facts and circumstances of the said case, this Court came to the conclusion that the discretion exercised by the Court below was not in consonance of the law laid down by this Court and the Apex Court. Therefore, the impugned order could not be sustained. Decision in Vimal Chand Jain case (supra), again came up for consideration before this Court in BriJ Lal v. VIIth Additional District Judge, Allahabad and others, 1995 AWC 50. This Court was pleased to rule as under :
"The learned counsel for the respondent submitted that even if there is no application for extension of time to deposit the rent and even there is no written representation made on behalf of the tenant, the Court may decline to strike off the defence. He placed reliance upon the decision of Bimal Chand Jain v. Gopal Agrawal, AIR 1981 SC 1657, wherein the Supreme Court held that the word 'may' used in sub-section (1) of Order 15 Rule 5 empowers the Court not to strike off the defence even in absence of representation by tenant, if on the facts and circumstances already existing on record he finds good reason for not striking off the defence. There may be three aspects :
(1) The tenant moves application for extension of time to deposit amount. The Court may extend the same.
(2) The deposit is made after lapse of time, but on representation being made the Court considering the circumstances may decline to. strike off defence under sub-rule (2) of Rule 5.
(3) There is no written representation on behalf of the tenant but there is material on record which obliges the Court not to exercise the discretion in striking off the defence."
10. Under the facts and circumstances of the said case, trial court struck off the defence, but the said order was set aside by the revisional court vide order dated 1.9.1981. This Court allowed the writ petition and quashed the order dated 1.9.1981 and upheld the order of the trial court striking off the defence.
11. In Shiv Prasad v. Special Judge, Allahabad, 1996 ACJ 160. this Court under the facts and circumstances of the said case, quashed'the order dated 16.11.1984, whereby defence of the defendant-petitioner was struck off by the trial court.
12. Thus, from the above noted decision, it is evident that each case will have to be decided on the facts of that case, no hard and fast rule, has so far been laid down for exercise of the powers under Order XV, Rule 5 of the C.P.C. It is. however, apparent that the Court should not be hyper-technical in exercise of the power under the said provisions.
13. In the present case, according to the findings recorded by the Court below, amount of interest at tyhe rate of 9% per annum, on the amount outstanding against the applicant was not paid. In Brij Lal's case, (supra), this Court observed that there could be three aspects of the matter, while dealing with the question of striking off the defence, i.e., tenant could move application for extension of time to deposit amount, if the same was not deposited within time. The Court, on the application filed by the tenant, could extend the time. The deposit might be made after lapse of time and the Court could condone the delay and could decline to strike off the defence, and in cases where no written representation on behalf of the tenant is made, but there might be material on record, which may oblige the Court not to exercise the discretion in favour of the plaintiff-landlord. In the present case, amount of interest was not at all paid by the applicant, nor any application for extension of time or for permission to deposit the said amount was made. On the other hand, it was claimed that the amount of Rs. 5.000 was already deposited with the plaintiff-respondents, which could be adjusted towards the amount of interest. The alleged amount of security was never admitted by the plaintiff-respondent, and legally said amount could not be adjusted towards the amount of interest, which is required to be deposited under the aforesaid rules. A reference in this regard may be made to the decision in Smt. Kailash Devi v. IVth Additional District Judge, Allahabad and another, 1995 AWC 50, wherein in the similar facts and circumstances as of the present case, it was ruled as under :
"The
provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh consists of two parts. In the first part, the tenant is liable to deposit the entire arrears of rent admittedly due on the date of first hearing along with 9% interest thereon. The second part lays down that the deposit has to be made of monthly amount due within a week from the date of accrual throughout the continuation of the suit whether or not the defendant admits the amount due. In
M/s. Umesh Industries and another v. IXth Additional District Judge. Ghaziabad and others, 1994 (2) ARC 157, it was held that the tenant was liable to make deposit of monthly rent in time. He cannot take the plea that he was not liable to deposit the amount as the landlord/plaintiff owed money to him."
14. In view of the aforesaid decision and in view of the fact that the deposit of Rs. 5,000 as security by the petitioner was not admitted by the contesting respondents. It was not open to the petitioner to claim that the amount deposited by him was liable to be adjusted in the amount' of rent, which is required to be deposited under Order XV, Rule 5 of the C.P.C.
15. Thus, the Court below had no option, but to exercise the discretion judiciously and to strike off the defence, in accordance with the provisions of the aforesaid rule. Even in this Court, no application for permission to deposit the amount in question was filed by the defendant-applicant, it was only in the argument of the learned counsel for the applicant that the applicant was ready to deposit the amount of interest outstanding against him, but in support of the said submissions, there was no material on record. In view of the facts and circumstances of the present case. Court below did not commit any error of law or jurisdiction in striking off the defence of the defendant-applicant. The revision is. therefore, liable to be dismissed. Legally the amount deposited under the aforesaid provisions can be withdrawn by the landlord lessor. The respondents may apply for withdrawal of the said amount. If such an application is made, same shall be decided by the trial court in accordance with law. It is, further, provided that as the suit is pending since 1983, the trial court shall decide the suit expeditiously preferably within a period of four months from the date a certifled copy of this order is produced before it.
16. With these observations, this revision is dismissed with costs.