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Saturday, August 31, 2013

Order XV Rule 5 of the Code of Civil Procedure (‘CPC’ for short). strike off defence as he failed to comply the orders and filed written statement belatedly -Apex court - yes = Rule 5 of Order XV, Code of Civil Procedure, was enacted by the U.P. Civil Laws (Amendment) Act, 1972 and the said Rule reads as follows: “5. Striking off defence for failure to deposit admitted rent.— (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 1-3 * * * * (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 ten 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 (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount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.”= suit for eviction of the respondent-defendant-tenant from the suit premises,= Inspite of receipt of notice, the respondent did not choose to file written statement within the specified period. After long delay, the respondent filed his written objection on 3rd April, 1999 against which the appellant-plaintiffs filed an application for striking off the defence on the ground that the respondent failed to deposit the rent, the damages due and the cost of the suit inspite of order dated 16th December, 1998, the first date of hearing and also failed to deposit water tax and house tax and thereby not complied with the provisions under Order XV Rule 5 of the Code of Civil Procedure (‘CPC’ for short).= In the present case, the Trial Court fully applied its mind while exercising its discretionary power to strike off the defence. The grounds were noticed, as mentioned at Paragraph 11 of the judgment passed by the District Judge and is quoted above. Learned District Judge exercising its revisional jurisdiction, affirmed the order passed by the Trial Court. The aforesaid judgment(s) cannot be said to be perverse nor can it be said that the courts below have exceeded or failed to exercise their jurisdiction. The power to strike off the written statement vested under Rule 5 of Order XV was exercised by the lower courts after going through the facts of the case. 16. Inspite of the aforesaid fact, we find that the High Court failed to give any ground while exercising its inherent power under Article 227 of the Constitution of India. Learned Single Judge by impugned judgment observed that the Supreme Court has held that the Court has jurisdiction and discretion to accept the written statement even after expiry of 90 days from the date of service of summons on payment of heavy cost. Defendant has neither cited any decision nor shown any ground for acceptance of written statement even after expiry of 90 days from the date of service of summons on payment of heavy cost. The order passed by the Trial Court by exercising its discretionary power and the order passed by the Revisional Court affirming the Trial Court order were not perverse and both the courts below have not exceeded their jurisdiction. Hence, it was not open to the High Court to sit in appeal under Article 227 of the Constitution of India to alter such finding of facts and to accept the written statement without any ground. 17. For the reasons aforesaid, we have no option but to set aside the impugned judgment dated 17th September, 2007 passed by the learned Single Judge, High Court of Judicature at Allahabad in Civil Miscellaneous Writ Petition No.44387 of 2007 and allow the appeal. The Trial Court is expected to decide the Suit No.17 of 1998 expeditiously as the matter is pending since long. No costs.

                    published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40706                                   
     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7279 OF 2013
                  (ARISING OUT OF SLP(C) NO.22265 OF 2007)


BAL GOPAL MAHESHWARI & ORS.        … APPELLANTS


                             VERUS

SANJEEV KUMAR GUPTA                               … RESPONDENT


                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


      Leave granted.  This appeal is preferred  by  the  appellants  against
the judgment and order dated 17th September,  2007  passed  by  the  learned
Single Judge, High Court of Judicature at Allahabad in  Civil  Miscellaneous
Writ Petition  No. 44387 of  2007.  By  the  impugned  judgment,   the  High
Court exercised its  revisional  jurisdiction  under  Article   227  of  the
Constitution of India and set aside the orders dated 31st May, 2007 and  9th
January, 2006 passed by the District Judge, J.P.  Nagar  in  S.C.C  Revision
No.1 of 2006 and Civil Judge, (S.D.), J.P. Nagar in  Suit  No.  17  of  1998
respectively. Thus, defence of the  respondent which was struck off  by  the
Courts below was restored by the High Court.
2.    The appellants  filed  Suit No. 17 of 1998  on  21st  September,  1998
before Civil Judge (S.D.) for eviction  of  the  respondent-defendant-tenant
from the suit premises, the shop located at Mohalla Raju Sarai  Kanth  Road,
Amroha Distt., J.P. Nagar on the ground of arrears of rent and default.
3.    Inspite of receipt of notice, the respondent did not  choose  to  file
written statement within  the  specified  period.   
After  long  delay,  the
respondent filed his written objection on 3rd April, 1999 
against which  the
appellant-plaintiffs filed an application for striking off  the  defence  on
the ground that 
the respondent failed to deposit the rent, the  damages  due
and the cost of the suit inspite of order dated  16th  December,  1998,  
the first date of hearing and also failed to deposit water  tax  and  house  tax
and thereby not complied with the provisions under Order XV Rule  5  of  the
Code of Civil Procedure (‘CPC’ for short).
4.    The learned Civil Judge (S.D), J.P. Nagar by order dated 9th  January,
2006 allowed the application of the appellant-plaintiffs and struck off  the
defence of the respondent.
5.    Against the said order, the respondent filed revision  application  in
S.C.C R.No.1 of 2006 before the District  Judge,  J.P.  Nagar  in  February,
2006. The District Judge, J.P. Nagar by impugned order dated 31st May,  2007
dismissed the same and affirmed order dated 9th January, 2006 passed by  the
Trial Court.
6.    The respondent thereafter filed a petition under Article  227  of  the
Constitution of India before the  High  Court  of  Judicature  at  Allahabad
registered as Civil Miscellaneous Writ  Petition  No.  44387  of  2007.  The
learned Single Judge passed the following order:
            “ Heard learned counsel for the parties.
            This is  tenant’s  writ  petition  directed  against  the  order
      striking off his defence.  The Trial  Court/JSCC/Civil  Judge  (S.D.),
      J.P. Nagar passed the order striking off the defence  on  9.1.2006  in
      SCC Suit No.17 of 1998.  Against the said order, petitioner filed  SCC
      Revision No.1 of 2006 before the District Judge, J.P.  Nagar  and  the
      same was dismissed on 31.5.2007.
            Defence has been struck off due to some irregularity in  deposit
      of the monthly rent, under the provisions of Order 15  Rule  5  C.P.C.
      The provision of Order 8 Rule 1 C.P.C. is also  mandatory  in  nature.
      However, the Supreme Court  has held that  still  the  Court  has  got
      jurisdiction and discretion to accept the written statement even after
      expiry of 90 days from the date of service of summon on payment  heavy
      cost.  The same principle may apply to the cases under Order 15 Rule 5
      C.P.C.
            Accordingly, the writ petition is  allowed,  both  the  impugned
      orders dated 31.5.2007 and 9.1.2006 are  set  aside.   The  petitioner
      shall pay Rs.10,000/- as costs and the same shall be deposited by  the
      petitioner before the Trial Court within 6 weeks from today.  In  case
      of default, this order shall stand automatically vacated.
            It is further directed that the Civil  Judge  (S.D.),  J.P.Nagar
      shall make all  efforts  to  decide  the  aforesaid  suit  within  six
      months.”

7.    Learned counsel for the  appellants  submitted  that  the  High  Court
committed a mistake in exercising its jurisdiction under Article 227 to  set
aside concurrent findings of  the  two  Courts  below  against  the  wilful,
habitual, consistent, persistent,  regular  and  stubborn  defaulter-tenant.
The High Court exceeded its jurisdiction  going  beyond  the  pleadings  and
facts and erred by comparing Order XV Rule 5 CPC with Order VIII Rule 1  CPC
and wrongly gave benefit to the respondent. It was  further  contended  that
the High Court completely ignored the well reasoned finding  of  the  Courts
below which struck off the written statement.
8.    Per contra, according to counsel for the respondent, the lower  courts
 wrongly interpreted Order XV Rule 5 CPC that  it  is  mandatory  in  nature
whereas the court has jurisdiction and  discretion  to  accept  the  written
statement even after expiry of  90 days from the date of service  of  summon
on payment of heavy cost as per decision  of  this  Court.  It  was  further
contended that by the impugned judgment the said mistake  committed  by  the
lower courts was corrected by the learned Single Judge of the High Court.
9.    We have heard the learned counsel for  the  parties  and  perused  the
record. Both the parties relied upon one  or  the  other  decision  of  this
Court which will be referred at an appropriate stage.
10.   In the present case, we  find  that  both  the  courts  below  noticed
several defaults committed by  the  respondent  in  depositing  the  monthly
rent. The aforesaid fact was noticed by the District Judge, J.P. Nagar,   as
mentioned in paragraph 11 of the order dated 31st May, 2007 and the same  is
reproduced below:
            “11.  In the present case there are several  defaults  committed
      by the revisionist in depositing the monthly rent as under.
            The rent of April 1999 must be deposited upto 7th May  1999,  it
      has  been  deposited  by  delay  of  20  days   on   27/05/1999.    No
      representation in this behalf has been given by the tenant  explaining
      the delay.  Further the rent of June 1999 has not been deposited  upto
      7th of July 1999 nor the rent of month of July 99 was  deposited  upto
      07/08/99, on the contrary rent of both the months i.e. June & July  99
      has been deposited after a considerable delay  on  23/08/99,  although
      including   the   rent   of   August   99,    as    well,    but    no
      explanation/representation regarding the delay in deposit of the month
      of June and July 99 has been furnished.  In the same way, the rent  of
      the  month  of  September,  October-99  has   been   deposited   after
      considerable delay on 08/12/1999 although the  rent  of  November  and
      December-99 has been included therein but no explanation of such delay
      in deposit of rent of September and October 99,  has  been  furnished,
      similarly the rent of Jan, 2000 was deposited on  07/03/2000,  and  no
      explanation/representation  was  furnished  explaining  the  delay  in
      deposit, although the rent of February, March and April 2000 has  been
      included therein similarly, the rent of May and June – 2000  has  been
      deposited on 27/07/2000 including the rent of Month of July and August
      2000 but no explanation/representation regarding the delay deposit  of
      the month of May and June-2000 was given by the tenant.   Further  the
      rent of Sep.2000 was deposited on 06/11/2000  in  which  the  rent  of
      October, November and December-2000, was included.  The delay  deposit
      of rent of the month of September has not been explained.  The rent of
      January,2001 was deposited after a considerable delay on 22/03/2001 in
      which the rent up to April 2001 has been deposited the  rent  of  May,
      June, July, August, September, October  and  November  2001,  total  7
      months of rent  was  deposit  on  5/12/2001  including  the  month  of
      December 2001, there is no explanation/representation  regarding  this
      huge delay of deposit of the rent of month May,  June,  July,  August,
      September and October, 2001.  The rent of  January  and  February  was
      deposited on 11/03/2002 no representation/explanation of  this  delay,
      too has been given, the  rent  of  September,  October,  November  and
      December 2002 was deposited for the first time on 11/12/2005 by tender
      122/C after moving the application for striking off  the  defence.  In
      this deposit as well there is no  representation/explanation  of  this
      delay of more than two years.  The rent of Jan 2003 was  deposited  on
      18/02/03, rent of September, October, November and December  2003  and
      Jan 2004 was deposited on  04/03/2004  in  this  deposit  as  well  no
      representation/explanation of any kind has been given by  the  tenant.
      The rent of May, June, July 2004 has been deposited on  25/08/2004  in
      this     deposit     as     well      no      delay      has      been
      explained.........................  The tenant in this case only  made
      representation that he had deposited the correct money rent but he did
      not file 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 XV C.P.C. the defence was liable to be struck off. The order  of
      the High Court in the writ petition is therefore not sustainable.”


11.   Rule 5 of Order XV, Code of Civil Procedure, was enacted by  the  U.P.
Civil Laws (Amendment) Act, 1972 and the said Rule reads as follows:
      “5. Striking off defence for failure to deposit admitted rent.—
(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 1-3     *     *    *     *
        (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  ten  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.”


12.   In  Bimal Chand Jain v. Sri Gopal  Agarwal  (1981)  3  SCC  486,  this
Court having noticed the aforesaid provision held as follows:
      “6. It seems to us on a comprehensive understanding of Rule 5 of Order
      XV 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 Puran Chand1. We are of opinion that the High Court has  placed  an
      unduly narrow construction on the provisions of clause (1) of  Rule  5
      of Order XV.”


13.   The same very provision of Rule 5 of Order XV fell  for  consideration
before this Court in  Smt. Satya Kumari Kamthan v.  Noor  Ahmed  and  others
1992 (2) Allahabad Rent  Cases  82  (SC).  
That  was  the  case  when  the
plaintiff 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
XV. The Courts below did not accept the said contention and found as a  fact
that there was a default in payment of   the   admitted   rent.  The  Courts
below  also  noticed  that  though  there  was  a  default  there   was   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 of the said case was held  to  be
entitled to get the  defence  struck  off.   This  Court  referring  to  the
provisions of  Rule 5 of Order XV and relying on decision of this  Court  in
Bimal Chand  Jain  (supra)  held  that  if  the  tenant  has  not  made  any
representation under Rule 5 of Order XV and there is a  default  in  payment
of rent, it is open to the  court  to  strike  off  the  defence.  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.
14.   In  Mangat Singh Trilochan Singh  v. Satpal  (2003)  8  SCC  357
this
Court noticed the discretionary power of the Trial Court in  the  matter  of
striking off defence under Order XV of Rule 5 as  in  the  said  case  Trial
Court refused to strike off the defence of the tenant on the ground  that  a
substantial question of jurisdiction was  involved.  
The  Trial  Court  also
came to the conclusion that as arrears of  rent  having  been  deposited  in
Bank there were no mala fide on the part of the tenant and that the  arrears
were thereafter deposited in court with  an  application  or  representation
made in accordance with sub-rule (2)  of  Rule  5.   
This  Court  held  that
refusal to strike off defence and acceptance of deposit of arrears  of  rent
was justified.
15.   In the present case, the Trial Court  fully  applied  its  mind  while
exercising its discretionary power to strike off the  defence.  
The  grounds
were noticed, as mentioned at Paragraph 11 of the  judgment  passed  by  the
District Judge and is quoted above. 
Learned District  Judge  exercising  its
revisional jurisdiction,  affirmed the order passed by the Trial Court.  The
aforesaid judgment(s)  cannot be said to be perverse  nor  can  it  be  said
that  the  courts  below  have  exceeded  or  failed   to   exercise   their
jurisdiction. 
The power to strike off the  written  statement  vested  under
Rule 5 of Order XV was exercised by the lower  courts  after  going  through
the facts of the case.
16.   Inspite of the aforesaid fact, we find that the High Court  failed  to
give any ground while exercising its inherent power  under  Article  227  of
the Constitution  of  India.  
Learned  Single  Judge  by  impugned  judgment
observed that the Supreme Court has held that  the  Court  has  jurisdiction and discretion to accept the written statement even after expiry of 90  days from the date of service of summons on payment of heavy cost. 
Defendant  has
neither cited any decision nor shown any ground for  acceptance  of  written statement even after expiry of 90 days from the date of service  of  summons on payment  of   heavy  cost.  
The  order  passed  by  the  Trial  Court  by
exercising its discretionary power and the order passed  by  the  Revisional
Court affirming the Trial Court order were not perverse and both the  courts
below have not exceeded their jurisdiction. 
Hence, it was not  open  to  the
High Court to sit in appeal under Article 227 of the Constitution  of  India
to alter such finding of facts and to accept the written  statement  without
any ground.
17.   For the reasons aforesaid, we have no option  but  to  set  aside  the
impugned judgment dated 17th September, 2007 passed by  the  learned  Single
Judge, High Court of Judicature at Allahabad  in  Civil  Miscellaneous  Writ
Petition No.44387 of 2007 and allow the appeal. The Trial Court is  expected
to decide the Suit No.17 of 1998 expeditiously  as  the  matter  is  pending
since long. No costs.






                                                      ………………………………………………….J.
                           (SUDHANSU JYOTI MUKHOPADHAYA)








                                                      ………………………………………………….J.
                                   (KURIAN JOSEPH)


NEW DELHI,
AUGUST 30, 2013



















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