Dilip Gupta, J.;-
The defendants have filed this petition for quashing the order dated 20th September, 2000 passed by the Judge, Court of Small Causes by which the defence has been struck off under Order XV Rule 5 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') for the reason that the defendants did not deposit the entire amount due on the first date of hearing of the suit i.e. on 8th May, 1980. The petitioners have also sought the quashing of the judgment and order dated 28th January, 2003 by which the Revision filed by the petitioners for setting aside the aforesaid order was dismissed.
The Courts below have recorded a categorical finding of fact that on 8th May, 1980 which was the first day of hearing of the suit, the defendants did not deposit the amount due. The defence has, accordingly, been struck off under Order XV Rule 5 CPC.
It is submitted by learned counsel for the petitioners that there was delay in deposit of the amount for the reason that the defendant was ill and that some amount was also deposited under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act').
This submission of the learned counsel for the petitioners cannot be accepted.
In order to appreciate the controversy involved in this petition, it would be necessary to place the relevant provisions of Section 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:-
"Section 30. Deposit of rent in court in certain circumstances.- (1) If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it.
(2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building.
(3) The deposit referred to in sub-section (1), or sub-section (2), shall be made in the Court of the Munsif having jurisdiction.
(4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf.
(5) On a deposit being made under sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person.
(6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2).
Order XV Rule 5 CPC
Striking off defence for 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 cent 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.- The expression "first hearing" means the date for filing written statement 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 "entire 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, paid to the lessor acknowledged by the lessor in writing signed by him 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.- (1) 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 deduction 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-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."
On a careful analysis of the provisions of Order XV Rule 5 CPC it is seen that it is divided in two parts. The first part deals with the deposit of the "entire amount admitted by him to be due" together with interest at or before the first hearing of the suit. The second part deals with the deposit of "monthly amount due" which has to be made throughout the continuation of the suit.
It is, therefore, clear that Order XV Rule 5 CPC is in two parts. The first part deals with the deposit of the "amount admitted by him to be due" while the second part deals with the "monthly amount due" whether or not the tenant admits any amount to be due. Thus, in a case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made whether or not he admits any amount to be due.
The Supreme Court in the case of Atma Ram Vs. Shakuntala Rani (2005) 7 SCC 211 had the occasion to examine whether the tenant defaulted in payment of rent if he had not paid or tendered or deposited the rent in the manner required by law and whether the deposit of rent under some other Act could be construed to be a valid deposit. The tenant had sent a money-order remitting the rent but the landlord refused to accept it and, therefore, the tenant deposited the rent for the period from 1st February, 1992 to 31st January, 1995 in January, 1995 under the provisions of the Punjab Relief Indebtedness Act, 1934 (called the ''Punjab Act'). The landlord, however, sent a notice dated 16th May, 1996 to the tenant to pay arrears of rent. The tenant on 20th July, 1996 deposited the rent for the period February, 1995 to 12th July, 1996 under Section 27 of the Delhi Rent Control Act, 1961 (called the ''Delhi Act'). The arrears of rent from 1st February, 1992 to 31st January, 1995 was not included since the tenant had deposited the same under the Punjab Act. Section 27 of the Delhi Act provides that where the landlord does not accept any rent tendered by the tenant, the tenant may deposit such rent with the Rent Controller in the manner provided for in that section. The landlord then filed an application for eviction of the tenant under Section 14 (1) (a) of the Delhi Act. The Supreme Court, after considering a number of its earlier decisions in Kuldeep Singh Vs. Ganpat Lal (1996) 1 SCC 243, Jagat Prasad Vs. Distt. Judge, Kanpur 1995 Supp (1) SCC 318, M. Bhaskar Vs. J. Venkatarama Naidu (1996) 6 SCC 228, Ram Bagas Taparia Vs. Ram Chandra Pal (1989) 1 SCC 257 and E. Palanisamy Vs. Palanisamy (2003) 1 SCC 123, observed:-
"It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision.
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The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept the rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.
We are, therefore, satisfied that the High Court was right in holding that the appellant had failed to pay/tender arrears of rent for the period 1-2-1992 to 31-1-1995. The deposit made under the provision of the punjab act was of no avail in view of the express provision of Section 27 of the Act."
The aforesaid decision of the Supreme Court in the case of Atma Ram emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
A Division Bench of this Court in Haider Abbas Vs. Additional District Judge (Court No.3) Allahabad & Ors., 2006 (62) ALR 552, while considering the provisions of Order XV Rule 5 CPC and the aforesaid decision of the Supreme Court in Atma Ram, observed as follows:-
"The aforesaid decision of the Supreme Court in the case of Atma Ram (supra) emphasizes that if the tenant wishes to take advantage of the beneficial provisions of the Rent Control Act, he must strictly comply with the requirements and if any condition precedent is required to be fulfilled before the benefit can be claimed, the tenant must strictly comply with that condition failing which he cannot take advantage of the benefit conferred by such a provision. It has further been emphasised that the rent must be deposited in the Court where it is required to be deposited under the Act and if it is deposited somewhere else, it shall not be treated as a valid payment/tender of the rent and consequently the tenant must be held to be in default.
In view of the aforesaid principles of law enunciated by the Supreme Court in the aforesaid case of Atma Ram (supra), it has to be held that the tenant must comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. A deposit which is not made in consonance with the aforesaid Rule cannot enure to the benefit of the tenant and, therefore, only that amount can be deducted from the "monthly amount" required to be deposited by the tenant during the pendency of the suit which is specifically mentioned in Explanation 3 to Rule 5 (1) of Order XV CPC.
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It, therefore, follows that the amount due to be deposited by the tenant throughout the continuation of the suit has to be deposited in the Court where the suit is filed otherwise the Court may strike off the defence of the tenant since the deposits made by the tenant under Section 30 (1) of the Act after the first hearing of the suit cannot be taken into consideration."
It is, therefore, clear that the defendants have to comply with the requirements of Order XV Rule 5 CPC and make the deposits strictly in accordance with the procedure contained therein. The defendants seek to take benefit of the deposit made by them under Section 30 of the Act. It is not open to the petitioners to take this plea in view of the mandatory requirements of Order XV Rule 5 CPC and in view of the Division Bench judgment of this Court in Haider Abbas (supra).
The Courts below, therefore, committed no illegality in striking off the defence under Order XV Rule 5 CPC.
The writ petition is, accordingly, dismissed.