whether the High Court was right in reversing the order striking off the defence in terms of Order XV Rule 5 of the Code of Civil Procedure, 19082 , as applicable to the present case ?
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4682 OF 2022
(ARISING OUT OF SLP(CIVIL) NO. 1319 OF 2019)
ASHA RANI GUPTA ….APPELLANT(S)
VERSUS
SRI VINEET KUMAR ….RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Leave granted.
2. The present appeal arises out of a suit for eviction and recovery
of arrears of rent as also damages for use and occupation, as filed by
the plaintiff-appellant against the defendant-respondent1
, wherein the
order dated 01.03.2017, as passed by the Trial Court striking off the
defence of the defendant-respondent for failure to pay or deposit the due
rent, which was approved by the Revisional Court in its order dated
18.01.2018, has been set aside by the High Court in its impugned order
dated 02.11.2018.
3. The root question calling for determination in this appeal is as to
whether the High Court was right in reversing the order striking off
1 Hereinafter, the parties have also been referred to as ‘the plaintiff’ or as ‘the defendant’, as
per their status in the suit.
1
defence in terms of Order XV Rule 5 of the Code of Civil Procedure,
19082
, as applicable to the present case3?
4. The relevant factual and background aspects, so far relevant for
the present purpose, are as follows:
4.1. The plaintiff-appellant has filed the suit leading to this appeal,
being S.C.C. Suit No. 27 of 2011, in the Court of Judge, Small Causes,
Aligarh against the defendant-respondent on 30.04.2011 with the
averments, inter alia, that she is the owner of a shop bearing Municipal
Corporation No. 1/225, situated at Naurangabad Sahar, Kol, Aligarh, for
having purchased the same from the erstwhile owner Shri Rajiv Kant
Sharma through a registered sale deed dated 10.05.2010. The
appellant has further averred that the defendant-respondent is a tenant
in the suit shop since the time of its erstwhile owner on a monthly rent of
Rs. 625/- apart from statutory taxes; that after her purchasing the shop,
the defendant became her tenant; and that after registration of the sale
deed, the erstwhile landlord had informed the defendant about sale of
the shop to the plaintiff.
4.2. The plaintiff-appellant has alleged that the defendant-respondent
was a chronic defaulter in payment of rent and taxes; and despite
information of the sale deed dated 10.05.2010 and despite demand
made by her, the rent along with taxes had not been paid by him since
2 ‘CPC’, for short.
3 Rule 5 of Order XV was inserted to CPC for its application in the State of Uttar Pradesh by
the Uttar Pradesh Laws (Amendment) Act, 1972; it was substituted by the Uttar Pradesh Civil
Laws (Reforms and Amendment) Act, 1976 w.e.f. 01.01.1977 and was slightly amended by
Notification No. 121/IV-h-36-D dated 10.02.1981 w.e.f. 03.10.1981.
2
the month of May 2010. The plaintiff has averred that she got served a
legal notice under Section 106 of the Transfer of Property Act, 1882 to
the defendant on 08.02.2011, who refused to accept the notice and has
neither paid the balance rent and damages nor vacated the suit shop. It
has also been pointed out that the suit shop was a newly constructed
one to which, the provisions of U.P. Act No. 13 of 1972 were not
applicable. While asserting her right to receive the rent and damages in
relation to the suit shop from the month of May 2010 and with other
averments regarding cause of action, jurisdiction and court fee etc., the
plaintiff has claimed the reliefs in the following terms: -
“10. That the plaintiff is entitled for the following relief: -
a) the decree may kindly be passed in favour of the plaintiff and against the
defendant for realizing amount of Rs. 8,050/- and damages for use and
occupation @ Rs.625/- per month presently and in future besides the taxes.
b) a decree of eviction in favour of plaintiff and against the defendant for the
shop which is in the possession of defendant and after eviction of the
defendant the possession of the shop may be given to the plaintiff through the
Amin of the Court, may be passed.
c) the expenses of the suit may be recovered from the defendant and be given
to the plaintiff.
d) any other relief which this Hon’ble Court may deem fit and proper in the
circumstances of the case may be given to the plaintiff.”
4.3. In his written statement, the defendant-respondent has, in
essence, denied the relationship of landlord and tenant between the
plaintiff and himself, though he would not deny his status as tenant in
the suit shop. The defendant has also asserted that the alleged sale
deed dated 10.05.2010 is illegal and void. He has assigned the reasons
for this assertion by relying on certain recitals made by said Shri Rajiv
Kant Sharma in another sale deed dated 04.05.2010 executed in favour
of Abhishek Gupta (son of the present plaintiff) and particularly, the
3
boundaries on the northern side of the said property. In other words, the
assertion is that in the sale deed dated 04.05.2010, no such shop was
shown on the northern side as attempted to be sold by the sale deed
dated 10.05.2010. The defendant has further asserted that the shop in
question was let out to him by Smt. Sudha Sharma wife of Shri Rajiv
Kant Sharma; and not by Shri Rajiv Kant Sharma, the alleged transferor
of the plaintiff. According to the defendant, Shri Rajiv Kant Sharma was
not the landlord; and his landlady Smt. Sudha Sharma had not
transferred the shop in question to the plaintiff. The defendant has also
alleged that Smt. Sudha Sharma was earlier issuing the rent receipts but
afterwards, stopped giving the receipts though she was regularly
receiving rent and that the rent up to 31.08.2010 had been paid to Smt.
Sudha Sharma. The defendant has also refuted the averments about
inapplicability of U.P. Act No. 13 of 1972 and has alleged that the shop in
question being too old, the said Act is applicable to it. The defendant has
yet further asserted that the notice dated 18.02.2011 never reached him
and he had never refused to receive the notice.
4.4. It is also noticed that at the stage of evidence in this suit, the
defendant moved an application seeking appointment of a Court
Commissioner with the submissions that a site plan, containing the
details of the property, including the measurement of the suit shop and
the house situated on the southern side of the shop was required to be
called. The Trial Court considered and rejected this application by its
4
order dated 03.02.2016, for there being no reason to issue a
commission in view of the respective stand of the parties and the real
questions involved in the matter.
4.5. Thereafter, the plaintiff-appellant filed an application with
reference to the provisions of Order XV Rule 5 CPC as applicable to the
present case and prayed that the defence of the defendant-respondent
be struck off, for the reason that defendant had not deposited any rent
and no evidence was adduced by him to establish any payment of rent.
This application was contested by the defendant-respondent with the
submissions that the provisions of Order XV Rule 5 CPC were
applicable only to a case where the defendant would accept the plaintiff
as his landlord; and in the present case, he had taken the special plea
that the plaintiff was not the landlord or the owner of the suit shop and
had clearly averred that there was no relationship of landlord and tenant
between the plaintiff and defendant. The defendant-respondent also
referred to certain rent receipts said to have been issued by the said
Smt. Sudha Sharma.
4.6. After having examined the record and the rival contentions, the
Trial Court, in its order dated 01.03.2017, found that no evidence was
placed on record by the defendant to show his payment of rent to the
plaintiff and observed that even if the tenant would deny the relationship
of landlord and tenant, the application under Order XV Rule 5 CPC was
5
maintainable. The Trial Court, accordingly, proceeded to strike off the
defence while observing, inter alia, as under: -
“No such evidence has been filed on the record by the
defendant so that it could become explicit that on the date of sale
deed on 10.05.2010, the alleged rent was deposited in favour of
Asha Devi or payment was made to the plaintiff Asha Devi.
According to the aforesaid documentary evidence available on the
record, principle of law laid down in the citations, if the tenant has
denied the relationship landlord and tenant, then the application
shall be maintainable under the provision of Order XV Rule 5 of
Civil Procedure Code. As per the citation relied upon on behalf of
the plaintiff is more recent in comparison to the citation relied upon
by the defendant. Although the principle of law laid down in both
citations are applicable with respect to the case in this Court, but
due to the citation relied upon by the plaintiff being more recent, so
it has more significance. Therefore, the application 61Ga of the
plaintiff ought to be allowed and the defence of the defendant
ought to be struck off.
ORDER
The application 61Ga is allowed and the defence of the
defendant is struck off. The record be put up on 16.03.2017 for
cross examination of the witness PW-1.”
4.7. The order aforesaid was challenged by the defendantrespondent in S.C.C. Revision No. 11 of 2017, which was duly
considered and dismissed by the Fourth Additional District Judge,
Aligarh on 18.01.2018, while agreeing with the Trial Court and observing
as under: -
“The revisionist has admitted as the tenant of the shop in suit
in the written statement. But it was mentioned that the
respondent / plaintiff is not the owner of the shop in suit and the
respondent has averred that she is the owner of the shop in suit
on the basis of the sale deed. This fact is undisputed that the
revisionist did not deposit the rent of the shop in suit in the Court
on the first date of hearing and even he did not deposit the rent
corresponding to the period thereafter. In case the revisionist
denies the relationship of tenant and landlord, then he should have
complied with second part of the Order XV Rule 5 of Civil
Procedure Code, but it was not done so as per the principle of law
laid down by the Hon’ble High Court of Allahabad in the citation
2012 (1) CAR, 93 Allahabad, Mukesh Singh & Ors. Vs. Ramesh
Chand Solanki. Therefore, in view of facts and circumstances of
6
the present case, no error of law is found in the impugned order
passed by the Ld. Subordinate Court and even the Ld.
Subordinate Court has not superseded its jurisdiction. Therefore,
there appears no sufficient ground to interfere with the impugned
order. Consequently the revision ought to be set aside.”
5. The defendant-respondent, being aggrieved of the orders
aforesaid, approached the High Court under Article 227 of the
Constitution of India and his petition (No. 2419 of 2018) came to be
allowed by the High Court by way of its impugned order dated
02.11.2018.
5.1. The High Court took note of the background aspects and the
long-drawn arguments with case laws cited by either of the parties; and
after a survey of various decisions of the Allahabad High Court as also
of this Court, took the view that the discretionary power as regards
striking off defence must be exercised with great circumspection.
Thereafter, though the High Court observed that the pleas taken by the
defendant-respondent might apparently be for the purpose of protracting
the litigation as the property was purchased through a registered sale
deed that distinctly carried the number (1/225) of the shop which was let
out to the defendant-respondent but, opined that the defendantrespondent was entitled to ‘some indulgence’. The High Court, thus, set
aside the orders impugned before it; and issued directions to the
defendant to deposit the arrears of rent together with interest within one
month; and further to deposit the current rent as determined by the Trial
Court, month by month, by seventh of every month during the pendency
of litigation.
7
5.2. In the impugned order dated 02.11.2018, where first 42
paragraphs are devoted to background facts, rival contentions and
discussion concerning cited decisions with several extractions, entire of
the reasoning and then, conclusion and directions of the High Court are
contained in paragraphs 43 to 47, which could be usefully reproduced as
under: -
“43. This Court finds from a consideration of the judgments cited
by the counsel for either of the parties that the language of Order
XV, Rule 5 CPC is similar to the language used in sub section 7 of
Section 15 of the Delhi Rent Control Act, 1958 and sub section 1
of Section 13 of the Tripura Building Lease and Control Act,
1975. The Delhi Rent Control Act, was considered by the Supreme
Court in Miss. Santosh Mehta Vs. Om Prakash and in Kamla
Devi Vs. Basudev.
44. The Supreme Court observed that the Rent Control Court /
Appellate Authority has been conferred with a discretionary power
which must be exercised with great circumspection.
45. In the case of the petitioner who is the defendant before the
learned Trial Court, a specific plea was taken regarding non
existence of relationship of landlord and tenant. In fact the
ownership of the landlord of the Suit property was also denied, as
also the identity of the Suit property, which was allegedly
purchased by the plaintiffs. Though the pleas taken by the
defendant / tenant may apparently be for the purpose of
protracting the litigation as the property was bought through a
registered sale deed and the shop number mentioned in the said
sale deed was 1/225 which was the same as the shop rented out
to the defendant / tenant, yet the defendant / tenant deserves
some indulgence.
46. The orders impugned are set aside. However, a direction is
issued to the petitioner / tenant to deposit arrears of rent @ Rs.
625/- per month along with 9% interest per annum and cost before
the learned Trial Court within a period of one month from today.
The tenant shall also deposit the current rent as determined by the
learned Trial Court, month to month by the seventh of every month
during the pendency of the litigation. All such deposits made by
the tenant shall be kept in a separate interest bearing account by
the learned Trial Court and shall abide by the final decision of the
SCC Suit filed by the plaintiff / respondents.
47. This matter stands thus disposed of.”
(emphasis supplied)
8
6. Assailing the order so passed by the High Court, learned counsel
appearing for the plaintiff-appellant has strenuously argued that the High
Court has dealt with the matter in a rather cursory manner and has
erroneously upset the considered orders dated 01.03.2017 and
18.01.2018, as passed respectively by the Trial Court and the Revisional
Court, striking off the defence of the defendant-respondent in terms of
Order XV Rule 5 CPC for non-payment of the due amount of
rent/damages.
6.1. Learned counsel has argued that the High Court has
misinterpreted and misapplied the provisions of Order XV Rule 5 CPC
and has allowed the petition filed by the defendant by merely holding
that he was entitled to some indulgence but, without giving any specific
reason or finding to overturn the considered orders passed by the
subordinate Courts.
6.2. Learned counsel has referred to the provisions contained in
Order XV Rule 5 CPC and has submitted that as per the said provisions,
the defendant-respondent, being the tenant of the suit shop, was
required to pay or deposit the entire rent for use and occupation of the
shop in question but, he neither paid nor deposited the due amount on
the first hearing though he filed the written statement on 04.09.2012;
and he did not pay or deposit the monthly amount due during the
continuation of the suit. According to the learned counsel, even if the
defendant-respondent had taken the plea suggestive of denial of title of
9
the plaintiff and denial of the relationship of landlord and tenant, he is
not absolved of the liability to make payment of rent; and on his failure to
make such payment/deposit, the consequences contemplated by the
Order XV Rule 5 CPC would indeed follow and he cannot be granted
any so-called indulgence.
6.3. Learned counsel has also attempted to refer to the additional
document filed with I.A. No. 24489 of 2022, inter alia, being of affidavit
filed by the defendant-respondent in the year 1990 admitting Shri Rajiv
Kant Sharma as the owner of the suit property, from whom the plaintiffappellant had purchased under the registered sale deed dated
10.05.2010.
7. Per contra, learned counsel for the defendant-respondent has
duly supported the order impugned and has submitted that the view
taken by the High Court calls for no interference.
7.1. It has been submitted with reference to the decisions of this
Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal: 1981 (3)
SCC 486 and Manik Lal Majumdar and Ors. v. Gouranga Chandra
Dey and Ors.: AIR 2005 SC 1090 that when the defendant-respondent
has taken specific plea regarding non-existence of relationship of
landlord and tenant, he is not liable to deposit any rent in terms of the
Order XV Rule 5 CPC. It is submitted that the plaintiff’s ownership of the
suit property has been denied by the defendant and the identity of the
property allegedly purchased by the plaintiff has also been questioned;
10
and these contentions/objections of the defendant could only be decided
after the trial. Thus, until the matter is duly tried, the defendant cannot
be compelled to deposit the arrears of rent due in this suit and the High
Court has rightly extended him indulgence of not striking off the defence.
7.2. It has also been submitted that the defendant-respondent had
paid the rent to the erstwhile landlord Smt. Sudha Sharma upto
31.08.2010 and the receipts said to have been given by her have been
referred to. It has further been submitted that the defendant-respondent,
obviously, entertained genuine doubt about the entitlement of the plaintiff
because the erstwhile landlord had never informed about her having
sold the property and for payment of rent to the plaintiff; and in view of
obvious discrepancies in the description of properties allegedly sold by
Shri Rajiv Kant Sharma, there had been genuine confusion about the
landlord/owner of the property. In this scenario, the defendantrespondent cannot be faulted in raising objection and in not making
deposit of rent in the present suit.
7.3. It has been asserted on behalf of the respondent that the
expression “may” in sub-rule (1) of Rule 5 of the Order XV merely vests
discretionary power in the Court to strike off the defence but, it does not
oblige the Court to do so in every case of default or non-payment of rent.
In regard to the operation of Order XV Rule 5 CPC, learned counsel for
the defendant-respondent has also relied upon the Division Bench
decisions of the High Court in Ladly Prasad v. Ram Shah Billa and
11
Ors.: (1976) 2 ALR 8 and in Kunwar Baldevji v. The XI Additional
District Judge, Bulandshahar and Ors.: (2003) 1 ARC 637.
7.4. It has also been pointed out that pursuant to the order passed by
the High Court, the defendant-respondent has deposited the entire rent
from 10.05.2010 to 10.11.2018 and is also making further deposits
regularly.
8. We have given thoughtful consideration to the rival submissions
and have examined the record with reference to the law applicable to
the present case.
9. For dealing with the relevant question involved, it would be
appropriate to take note of the provisions of Order XV Rule 5 CPC, as
applicable to the present case. These provisions read as under: -
“5. Striking off defence on 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 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,
paid to the lessor acknowledged by the lessor in writing signed by
12
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.- 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.”
9.1. A few basic factors related with the provisions of Order XV Rule 5
CPC could be noticed at once. As per these provisions, in a suit by a
lessor for eviction of a lessee after the determination of lease and for
recovery of rent or compensation for use and occupation, the defendant is
under the obligation: (1) to deposit the entire amount admitted by him to
be due together with interest at the rate of 9% per annum on or before the
first hearing of the suit; and (2) to regularly deposit the monthly amount
due within a week of its accrual throughout the pendency of the suit. The
consequence of default in making either of these deposits is that the
Court may strike off his defence. The expression ‘first hearing’ means the
date for filing written statement or the date for hearing mentioned in the
summons; and in case of multiple dates, the last of them. The expression
‘monthly amount due’ means the amount due every month, whether as
13
rent or damages for use and occupation at the admitted rate of rent after
making no other deduction except taxes, if paid to the local authority on
lessor’s account. It is, however, expected that before making an order
striking off defence, the Court would consider the representation of the
defendant, if made within 10 days of the first hearing or within 10 days of
the expiry of one week from the date of accrual of monthly amount.
10. At this juncture, we may also take note of the decisions which
have been referred to and relied upon.
10.1. The High Court has primarily based its decision on the cases of
Miss Santosh Mehta v. Om Prakash and Ors.: (1980) 3 SCC 610 and
Smt. Kamla Devi v. Vasdev: (1995) 1 SCC 356. Both these cases
related to the operation of Section 15(7) of the Delhi Rent Control Act,
19574
.
10.1.1. In the case of Miss Santosh Mehta (supra), the tenant, a
working woman, had regularly paid the rent to her advocate, who neither
deposited the same in the Court nor paid it to the landlord. In the given
circumstances, this Court found it unjustified to punish the tenant by
striking out the defence. In that context, this Court observed that under
Section 15(7) of the Delhi Rent Act, it was in the liberal discretion of the
Rent Controller, whether or not to strike out the defence. This Court also
observed that it was of harsh and extreme step, and having regard to the
benign scheme of the legislation, this drastic power was meant for use in
4 Hereinafter also referred to as ‘the Delhi Rent Act’.
14
grossly recalcitrant situations where the tenant was guilty of disregard in
paying rent. This Court further said, -
“3. We must adopt a socially informed perspective while
construing the provisions and then it will be plain that the
Controller is armed with a facilitative power. He may or may
not strike out the tenant's defence. A judicial discretion has built-inself-restraint, has the scheme of the statute in mind, cannot ignore
the conspectus of circumstances which are present in the case
and has the brooding thought playing on the power that, in a
Court, striking out a party's defence is an exceptional step, not a
routine visitation of a punitive extreme following upon a mere
failure to pay rent. First of all, there must be a failure to pay rent
which, in the context, indicates wilful failure, deliberate default or
volitional non-performance. Secondly, the section provides no
automatic weapon but prescribes a wise discretion, inscribes no
mechanical consequence but invests a power to overcome
intransigence. Thus, if a tenant fails or refuses to pay or deposit
rent and the court discerns a mood of defiance or gross neglect,
the tenant may forfeit his right to be heard in defence….
4. There is no indication whatsoever in the Act to show that the
exercise of the power of striking out of the defence under S. 15(7)
was imperative whenever the tenant failed to deposit or pay any
amount as required by S. 15. The provisions contained in S. 15(7)
of the Act are directory and not mandatory. It cannot be disputed
that S. 15(7) is a penal provision and gives to the Controller
discretionary power in the matter of striking out of the defence,
and that in appropriate cases, the Controller may refuse to visit
upon the tenant the penalty of non-payment or non-deposit. The
effect of striking out of the defence under S. 15(7) is that the
tenant is deprived of the protection given by S. 14 and, therefore,
the powers under S. 15(7) of the Act must be exercised with due
circumspection.”
10.1.2. In the case of Smt. Kamla Devi (supra), the order for payment or
depositing the arrears of rent was made on 27.01.1984 and the
payment/deposit was to be made within one month. The tenant paid
certain amount to the appellant but did not pay the arrears. Earlier, the
Rent Controller passed the order denying benefit to the tenant and
ordered eviction but the matter was remanded for consideration of the
question of condonation of delay in depositing the arrears. After remand,
15
the Rent Controller held that there was some compromise between the
parties and in any case, delay in deposit could not be termed as wilful,
deliberate or contumacious and hence, condoned the same. The order so
passed was maintained by the Tribunal and the High Court. The landlord
then appealed to this Court. This Court referred to the scheme of the
enactment as also the decision in Miss Santosh Mehta (supra) and held
that Section 15(7) of the Delhi Rent Act gave discretion to the Rent
Controller, who may or may not pass the order striking out defence but,
exercise of this discretion will depend upon the circumstances of each
case. This Court observed, inter alia, as under: -
“23. …… In our view, sub-section (7) of Section 15 of the Delhi
Rent Control Act, 1958 gives a discretion to the Rent Controller
and does not contain a mandatory provision for striking out the
defence of the tenant against eviction. The Rent Controller may or
may not pass an order striking out the defence. The exercise of
this discretion will depend upon the facts and circumstances of
each case. If the Rent Controller is of the view that in the facts of a
particular case the time to make payment or deposit pursuant to
an order passed under sub-section (1) of Section 15 should be
extended, he may do so by passing a suitable order. Similarly, if
he is not satisfied about the case made out by the tenant, he may
order the defence against eviction to be struck out. But, the power
to strike out the defence against eviction is discretionary and must
not be mechanically exercised without any application of mind to
the facts of the case.”
10.2. In the case of Manik Lal Majumdar (supra), the question was
slightly different and was related to the maintainability of appeal in terms
of Section 20 of Tripura Buildings (Lease and Rent Control) Act, 1975
where, in view of the embargo put by Section 13 of the said Act, the
tenant was not entitled to prefer an appeal unless he had paid or
deposited all arrears of rent admitted by him to be due. This Court put a
16
purposive interpretation to the expression ‘prefer an appeal’ while
observing that mere filing of appeal was not prohibited but, the Appellate
Authority may not proceed with the hearing of appeal or pass an interim
order in favour of the tenant until he had paid or deposited the arrears of
rent.
10.3. The case of Bimal Chand Jain (supra) directly related to the
provisions of Order XV Rule 5 CPC, as applicable to the present case.
Therein, though the tenant had deposited the arrears admitted to be due,
but had failed to make regular deposits of monthly rent and to submit
representation in terms of sub-rule (2) of Rule 5 of Order XV. Thus, the
Trial Court proceeded to strike off the defence; and the High Court
affirmed the order of the Trial Court. In the said case, the High Court
proceeded with reference to an earlier decision of its Division Bench that
in the given circumstances, the Court was obliged to strike off defence.
Such a construction of the said provisions by the High Court, giving them
mandatory character, was not approved by this Court and the matter was
remanded to the High Court for reconsideration with the following
observations: -
“6. … 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
17
such material already. In that event, can it be said that sub-r. (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 vests
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 Chand (1981
All LJ 82) (Supra). 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.”
(emphasis supplied)
10.4. In Ladly Prasad (supra), the Division Bench of Allahabad High
Court held as follows: -
“8….In case the court after considering the representation made
by the defendant comes to the conclusion that the circumstances
justify grant of further time on security being furnished for the
amount, the court will be competent to do so. It is not obligatory on
the court to refuse to entertain any defence or to strike off the
defence in a case default is committed by the defendant in making
the requisite deposits…..”
10.5. In Kunwar Baldevji (supra), another Division Bench of the High
Court observed as under: -
“13. If amount of rent is admitted then it is not required to be
adjudicated by the Court. In case, tenant denies any rent to be
due, Court shall be required to decide the same. It is obvious that
in such contingency Court will have to adjudicate and its finding
will come subsequent to the ‘first date of hearing’ contemplated
under Order 15, Rule 5, Code of Civil Procedure. It is, therefore,
evident that by the time the Court will render its finding, ‘first date
of hearing’ which is cut off date for deposition of rent, shall be over.
It also requires no comment that such an issue is first to be framed
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and thereafter adjudicated after parties have led evidence in
accordance with law.”
10.6. We have also noticed that in the case of Hisamul Islam Siddiqui
and Anr. v. Mohd. Javed Barki: 2016 (131) RD 135, as referred to in the
impugned order, a learned Single Judge of the same High Court had
referred to the provisions of Order XV Rule 5 CPC as also Section 109 of
the Transfer of Property Act, 1882; and after finding that the purchaser
became the landlord by operation of law upon transfer of property, the
High Court took note of the fact that the defendant had not denied the
status as tenant by filing written statement and had not deposited any
rent. Hence, it was held that the Trial Court had rightly struck off the
defence.
11. The present suit has been filed by the plaintiff-appellant claiming
her capacity as the lessor after having purchased the suit property from
its erstwhile owner. According to the plaintiff, the defendant has been the
lessee in the suit shop and his lease was determined; and while alleging
the rent to be due and having not been paid despite demand, the plaintiff
has filed this suit for eviction and recovery of arrears of rent and damages
for use and occupation. Having regard to the plaint averments, the suit in
question is clearly the one to which the provisions of Order XV Rule 5
CPC are applicable.
11.1. Though the aforesaid decisions in cases of Miss Santosh Mehta,
Smt. Kamla Devi and Manik Lal Majumdar related to the respective rent
control legislations applicable to the respective jurisdictions, which may
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not be of direct application to the present case but and yet, the relevant
propositions to be culled out for the present purpose are that any such
provision depriving the tenant of defence because of default in payment
of the due amount of rent/arrears have been construed liberally; and the
expression ‘may’ in regard to the power of the Court to strike out defence
has been construed as directory and not mandatory. In other words, the
Courts have leaned in favour of not assigning a mandatory character to
such provisions of drastic consequence and have held that a discretion is
indeed reserved with the Court concerned whether to penalise the tenant
or not. However, and even while reserving such discretion, this Court has
recognised the use of such discretion against the defendant-tenant in
case of wilful failure or deliberate default or volitional non-performance.
This Court has also explained the principles in different expressions by
observing that if the mood of defiance or gross neglect is discerned, the
tenant may forfeit his right to be heard in defence. The sum and
substance of the matter is that the power to strike off defence is
considered to be discretionary, which is to be exercised with
circumspection but, relaxation is reserved for a bonafide tenant like those
in the cases of Miss Santosh Mehta and Smt. Kamla Devi (supra) and
not as a matter of course. The case of Bimal Chand Jain (supra) directly
related with Order XV Rule 5 CPC where the tenant had deposited the
arrears admitted to be due but, failed to make regular deposits of monthly
rent and failed to submit representation in terms of sub-rule (2) of Rule 5
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of Order XV. The defence was struck off in that matter with the Trial Court
and the High Court taking the said provisions of Order XV Rule 5 CPC as
being mandatory in character. Such an approach was not approved by
this Court while indicating the reserve of discretion in not striking off
defence if, on the facts and circumstances existing on record, there be
good reason for not doing so. The common thread running through the
aforesaid decisions of this Court is that the power to strike off the defence
is held to be a matter of discretion where, despite default, defence may
not be struck off, for some good and adequate reason.
11.2. The question of good and adequate reason for not striking off the
defence despite default would directly relate with such facts, factors and
circumstances where full and punctual compliance had not been made for
any bonafide cause, as contradistinguished from an approach of defiance
or volitional/elective non-performance.
12. Reverting to the provisions under consideration, it is noticed that
while the first part of sub-rule (1) of Rule 5 of Order XV CPC requires
deposit of the admitted due amount of rent together with interest, the
second part thereof mandates that whether or not the tenant admits the
amount to be due, he has to, throughout the continuation of the suit,
regularly deposit monthly amount due within a week from the date of its
accrual. Read as a whole, it is but clear that Order XV Rule 5 CPC
embodies the fundamental principle that there is no holidaying for a
tenant in payment of rent or damages for use and occupation, whether
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the lease is subsisting or it has been determined. The only basic
requirement in the suit of the nature envisaged by Order XV Rule 5 CPC
is the character of defendant as being the lessee/tenant in the suit
premises. Viewed from this angle, we are not inclined to accept the line of
thought in some of the decisions of the High Court that in every case of
denial of relationship of landlord and tenant, the defendant in suit for
eviction and recovery of rent/damages could enjoy holidays as regards
payment of rent.
12.1. For what has been discussed hereinabove, the decision of the
High Court in Ladly Prasad (supra) does not require much dilation when
it remains indisputable that it is not always obligatory on the Court to
strike off the defence. However, the said decision cannot be read to mean
that despite default of the tenant in payment of rent, the defence has to
be permitted irrespective of its baselessness. The decision in Kunwar
Baldevji (supra), again, would have no application to the facts of the
present case. Herein, the defendant-respondent has not only omitted to
deposit the rent on the first date of the hearing but, has also omitted to
deposit the accrued rent during the pendency of the suit.
13. In a suit of the present nature, where the defendant otherwise has
not denied his status as being the lessee, it was rather imperative for him
to have scrupulously complied with the requirements of law and to have
deposited the arrears of rent due together with interest on or before the
first date of hearing and in any case, as per the second part of sub-rule
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(1) of Rule 5 of Order XV CPC, he was under the specific obligation to
make regular deposit of the monthly amount due, whether he was
admitting any such dues or not.
14. In the context of the proposition of denial of title of the plaintiff and
denial of relationship of landlord and tenant between the plaintiff and
defendant, we may also observe that such a denial simpliciter does not
and cannot absolve the lessee/tenant to deposit the due amount of
rent/damages for use and occupation, unless he could show having made
such payment in a lawful and bonafide manner. Of course, the question of
bonafide is a question of fact, to be determined in every case with
reference to its facts but, it cannot be laid down as a general proposition
that by merely denying the title of plaintiff or relationship of landlordtenant/lessor-lessee, a defendant of the suit of the present nature could
enjoy the property during the pendency of the suit without depositing the
amount of rent/damages.
15. Taking the facts of the present case, it is at once clear that the
defendant-respondent, by his assertions and conduct, has left nothing to
doubt that he has been steadfast in not making payment of rent/damages,
despite being lessee of the suit shop. The present one has clearly been
the case of volitional non-performance with nothing left to guess about the
defendant’s mood of defiance. Nothing of any fact or any circumstance is
existing on record to find even a remote reason for extending any latitude
or relaxation in operation of Order XV Rule 5 CPC to the present case. It
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shall be apposite at this juncture to also observe that the contentions on
behalf of the defendant-respondent to the effect that he had made
payment of rent to the alleged erstwhile landlord Smt. Sudha Sharma and
contra submissions on behalf of the appellant that even in the year 1990,
the defendant-respondent admitted the said Shri Rajiv Kant Sharma as
the owner of the property as also the factors co-related with these
submissions, do not call for adjudication in this appeal. This is for two
simple reasons: One, that so far as the fact of volitional non-performance
by the defendant-respondent is concerned, with no cogent evidence of
lawful payment of rent, the findings of fact by the Trial Court and the
Revisional Court against the defendant-respondent stand final and have
not been disturbed even by the High Court. There appears no reason for
this Court to enter into any factual inquiry as regards payment of rent to
Smt. Sudha Sharma or otherwise, now in this appeal. Secondly, so far as
any affidavit filed by the defendant-respondent in the year 1990, allegedly
admitting Shri Rajiv Kant Sharma as owner of property is concerned, it
may be a matter of adjudication by the Trial Court but would not be a
matter of consideration in this appeal. Suffice it to observe that the
present one is a case very near and akin to that of Hisamul Islam
Siddiqui (supra) wherein, the learned Single Judge of the same High
Court has approved the order striking off the defence after finding want of
deposit of the amount of rent, despite the defendant having not denied his
status as tenant.
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16. In the totality of facts and circumstances, we are clearly of the
view that there was absolutely no reason for the High Court to have
interfered in the present case, where the Trial Court had struck off the
defence after finding that there was no evidence on record to show the
payment or deposit of rent in favour of the plaintiff by the defendantrespondent. The Revisional Court had also approved the order of the Trial
Court on relevant considerations. Even the High Court did not find the
pleas taken by the defendant-respondent to be of bonafide character,
particularly when survey number of the shop let out to him was clearly
stated in the sale deed executed in favour of the plaintiff. We find it rather
intriguing that, despite having not found any cogent reason for which
discretion under Rule 5 of Order XV CPC could have been exercised in
favour of the defendant-respondent, the High Court, in the last line of
paragraph 45 of the order impugned, abruptly stated its conclusion that:
‘yet the defendant/tenant deserves some indulgence’.
17. With respect, the said conclusion of the High Court could only be
said to be an assumptive one, being not supported by any reason. In
paragraph 44, of course, the High Court observed with reference to the
decisions of this Court that the discretionary power must be exercised
with great circumspection but, such enunciation by this Court cannot be
read to mean that whatever may be the fault and want of bonafide in the
defendant/tenant, he would be readily given the so-called ‘indulgence’ of
not striking off defence. Such an approach is neither envisaged by the
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statutory provisions nor by the referred decisions. In fact, such an
approach would simply render the relevant provisions of law rather
nugatory. The expected circumspection would require the Court to be
cautious of all the relevant facts and the material on record and not to
strike off the defence as a matter of routine. However, when a case of the
present nature is before the Court, disclosing deliberate defiance and
volitional/elective non-performance, the consequence of law remains
inevitable, that the defence of such a defendant would be struck off.
18. For what has been discussed hereinabove, the impugned order as
passed by the High Court cannot be approved and is required to be set
aside.
19. The submissions made on behalf of the defendant-respondent
that he had deposited the due rent from 10.05.2010 to 10.11.2018 and he
has been further making regular deposits do not take his case any further.
The defendant-respondent has made such deposits only pursuant to the
order of the High Court. The said order, being not in conformity with the
law applicable and with the record of this case, is required to be set aside.
In any event, any deposit made under or pursuant to the said order
cannot wipe out the default already committed by the defendantrespondent. On the contrary, with setting aside of the said order of the
High Court, the order of the Trial Court shall stand revived. Simply put,
the deposits belatedly made, pursuant only to the unsustainable order of
the High Court, do not enure to the benefit of the defendant-respondent.
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20. Before concluding on this matter, a few peripheral aspects may
also be indicated. The petition seeking special leave to appeal in the
present case was entertained on 28.01.2019 when this Court, while
issuing notice, stayed the operation and implementation of the impugned
order of the High Court. Obviously, the impugned order dated 02.11.2018
as passed by the High Court stood eclipsed under and by virtue of the
stay order of this Court. Consequently, the suit was required to proceed
with the order of the Trial Court dated 01.03.2017 striking off the defence
of the defendant continuing in operation. The facts have been placed
before us to the effect that the plaintiff sought expeditious disposal of the
suit and in that regard, also filed a petition bearing No. 2810 of 2020
before the High Court, which was disposed of on 29.09.2020 with
directions to the Trial Court to decide the said suit expeditiously and
preferably within two years from the date of production of the copy of the
order without granting any unnecessary adjournment to either of the
parties. Thereafter, the Trial Court considered and granted an application
moved by the plaintiff to amend the plaint, so as to seek eviction of the
defendant on the ground of denial of title. The said amendment was
allowed on 18.02.2021. As per the material placed on record, the
additional written statement as filed by the defendant was taken on record
on 21.04.2022 and the matter was placed for plaintiff’s evidence.
21. Having taken note of the subsequent events after passing of the
impugned order by the High Court, suffice it to say that with the impugned
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order of the High Court being set aside and that of the Trial Court dated
01.03.2017 being restored by this judgment, it would be expected of the
Trial Court to take note of the fact that the suit filed way back in the year
2011 has remained pending yet and is required to be assigned a
reasonable priority for expeditious disposal. The order passed by the
High Court on 29.09.2020 is also to be kept in view by the Trial Court.
22. Accordingly, and in view of the above, this appeal succeeds and is
allowed; the impugned order dated 02.11.2018 is set aside with the result
that the order dated 01.03.2017 passed by the Trial Court stands
restored. The Trial Court shall be expected to proceed with the matter
while keeping in view the observations foregoing.
23. Having regard to the circumstances of the case, there shall be no
order as to costs of this appeal.
……....……………………. J.
(DINESH MAHESHWARI)
……....……………………. J.
(ANIRUDDHA BOSE)
NEW DELHI;
JULY 11, 2022.
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