- Bookmark
- Share
- CaseIQ
Satya Kumari Kamthan v. Noor Ahmad And Others
Factual and Procedural Background
The appellant landlady instituted a suit before the Civil Judge, Bareilly seeking eviction of the respondent-tenant on the ground of rent default. The Civil Judge dismissed the suit because the tenant had deposited certain sums up to January 1979. On appeal, the Third Additional District Judge set aside that dismissal and remanded the matter for fresh disposal. During the remanded proceedings the tenant again defaulted in the monthly deposits required by Order 15 Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh.
The landlady then applied to have the tenant’s defence struck off for non-deposit of admitted rent. On 7 March 1981 the Civil Judge found default for the months of August–December 1980 and, noting that the tenant had filed no representation under Order 15 Rule 5(2), struck off the defence. The tenant’s revision before the Additional District Judge failed. He thereafter succeeded in a writ petition before the Allahabad High Court, which relied on this Court’s decision in Bimal Chand Jain v. Gopal Agarwal to set aside the strike-off order and remand the revision for fresh disposal. The present appeal is directed against that High Court judgment.
Legal Issues Presented
- Whether the tenant’s failure to deposit the admitted rent and absence of a valid representation under Order 15 Rule 5(2) justified striking off his defence.
- Whether the Allahabad High Court erred in setting aside the orders of the trial and revisional courts merely because the Supreme Court had overruled an earlier Allahabad High Court decision on the same rule.
Arguments of the Parties
Appellant (Landlady)
- The tenant defaulted in depositing the admitted monthly rent for August–December 1980.
- No representation seeking extension of time or explaining the default was filed under Order 15 Rule 5(2).
- Consequently, the statutory discretion to strike off the defence was properly exercised by the courts below.
Respondent (Tenant)
- Contended that there was no default because the correct rent had been deposited.
- Disputed the quantum of rent, asserting that it was Rs 60 per month plus Rs 12 towards water and house tax, not the Rs 100 claimed by the landlady.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pooran Chand v. Pravin Gupta (1980) 6 All WC 712 | Held that the court must strike off the defence in every case of default under Order 15 Rule 5(1). | Cited by the trial and revisional courts; its view was later disapproved by the Supreme Court. |
| Bimal Chand Jain v. Gopal Agarwal (1981) 3 SCC 486; (1982) 1 SCR 124 | Clarified that striking off the defence is discretionary; the court must consider whether material on record or a representation justifies not imposing the penalty. | Formed the basis of the High Court’s decision, but the Supreme Court distinguished its facts and reaffirmed the discretion exercised by the trial court here. |
Court's Reasoning and Analysis
The Supreme Court reviewed the text of Order 15 Rule 5 as amended in Uttar Pradesh and reiterated the construction given in Bimal Chand Jain: striking off the defence is a discretionary penalty that the court “may” impose after considering any representation by the defendant. In the present case:
- Both the Civil Judge and the Additional District Judge found factual default in depositing rent for five consecutive months, irrespective of whether the admitted rate was Rs 60 or Rs 72 per month.
- The tenant’s only response was a statement that the correct amount had already been deposited; he did not seek extension of time or show cause for the default.
- Therefore, no “representation” within the meaning of Rule 5(2) existed that warranted leniency.
- The High Court erred in treating the overruling of Pooran Chand as automatically invalidating the strike-off order; the discretionary power under Rule 5 had in fact been properly exercised on the specific facts found by the lower courts.
Holding and Implications
APPEAL ALLOWED; the High Court’s judgment is set aside and the orders of the Civil Judge and Additional District Judge striking off the tenant’s defence are restored.
Immediate consequence: the tenant’s defence in the eviction suit stands struck off, clearing the way for the landlady to proceed without contest from the tenant. The decision re-affirms the discretionary nature of striking off a defence under Order 15 Rule 5 and underscores that a tenant must file a substantive representation or application for extension if he seeks to avoid that penalty; no broader precedent beyond application of the already settled principle was created.
Order
1. The landlady is appellant in this case. She filed a suit for eviction of the respondent in the Court of the Civil Judge, Bareilly on the ground that the respondent tenant had defaulted in payment of the rent.
2. The suit was dismissed by the Civil Judge on the ground that certain amounts had been deposited up to January 1979. The learned Third Additional District Judge, Bareilly set aside the order of the trial court and remanded the matter for fresh disposal. Again the tenant defaulted in payment of the monthly instalments as required by Order 15 Rule 5 CPC as amended in Uttar Pradesh.
3. The appellant moved an application for striking off the defence of the tenant on the ground that he had not deposited the admitted rent and that the rent paid was also insufficient. It may be mentioned that at one stage the appellant claimed rent payable as Rs 100 per month. The tenant was contending that the rent payable was Rs 60 per month and that another sum of Rs 12 is payable towards water and house tax making total of Rs 72.
4. The Civil Judge by his order dated 7-3-1981 held that there was a default in depositing of the rent for the months of August, September, October, November and December 1980. While coming to this conclusion the Civil Judge also noted that even if it is to be taken that the rent payable was Rs 60 per month, there was a default in payment of rent. The Civil Judge also observed that the tenant had not made any “representation” under Order 15 Rule 5(2) CPC (U.P Amendment) and that therefore the defence was liable to be struck off and accordingly the defence was struck off.
5. The tenant filed a revision petition before the Additional District Judge, Bareilly, who concurred with the trial court in finding that whether the rent payable was Rs 72 per month or Rs 60 per month, there was a default and since there was no “representation” by the tenant under Order 15 Rule 5 the defence was liable to be struck off. While coming to this conclusion both the trial court as also the Revisional Court referred to the judgment of the Allahabad High Court in Pooran Chand v. Pravin Gupta (1980) 6 All WC 712. Against this judgment the tenant filed a writ petition in the High Court at Allahabad. The learned Judge who heard this case was of the view that in the light of the decision of this Court in Bimal Chand Jain v. Gopal Agarwal (1981) 3 SCC 486, (1982) 1 SCR 124 wherein the decision of the Allahabad High Court abovereferred to had been overruled, the striking off the defence was not in accordance with law and accordingly set aside the order of the revisional authority and remanded the matter to the revisional authority with a direction to take up the case on file and to dispose of the same on merits in the light of the observations made in the judgment. It is against this order the present appeal has been filed.
6. Order 15 Rule 5 as amended in Uttar Pradesh reads as follows:
“5. 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 1.—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 ‘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, 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 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-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 security for such sum before he is allowed to withdraw the same.”
7. The scope of this Rule was considered by this Court in Bimal Chand case (1981) 3 SCC 486, (1982) 1 SCR 124. It was held:
“6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 that the true construction of the rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, ‘the court may subject to the provisions of sub-rule (2) strike off his defence’. We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is a reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reason for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word ‘may’ in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Pooran Chand (1980) 6 All WC 712.”
8. Can the ground that the decision of this Court overruled the decision of the Allahabad High Court abovereferred be sufficient to set aside the District Judge's order and remand it for fresh disposal? We may point out that in the case on hand when the appellant filed an application for striking off, the tenant filed a written statement objecting to the striking off on the ground that there was no default in payment of the monthly rent as provided under Rule 5(1) of Order 15. The courts below did not accept this contention and found as a fact that there was a default in payment of the admitted rent. The courts below further held that though there was a default there is no “representation” by the tenant giving any excuse for not depositing the correct amount or praying for extension of time for deposit for valid reasons and that, therefore, the plaintiff was entitled to get the defence struck off.
9. The word “representation” may cover a “representation” in answer to an application for striking off or a “representation” praying for an extension of time for making the deposit on sufficient grounds shown. The tenant in this case only made representation that he had deposited the correct money but he had not filed any application for extension of time. In the circumstances, therefore, the courts below were right in holding that there was a default in payment of the monthly rent and since there was also no application for extension of time under sub-rule (2) of Rule 5 of Order 15 the defence was liable to be struck off.
10. The order of the High Court in the writ petition, is, therefore, not sustainable. The appeal is accordingly allowed. The judgment dated 24-2-1982 in Civil Writ Petition No. 13392 of 1981 is set aside and the order of the Civil Judge as confirmed by the Additional District Judge striking off the defence is upheld. However, there will be no order as to costs.
Alert