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HAIDER ABBAS versus ADDL. DISTRICT JUDGE, ALLAHABAD & OTHERS

High Court of Judicature at Allahabad

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Haider Abbas v. Addl. District Judge, Allahabad & Others - WRIT - A No. 43734 of 2001 [2005] RD-AH 6639 (30 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Court No. 34

Civil Misc. Writ Petition No. 43734 of 2001

Haider Abbas

Vs.

Additional District Judge & Ors,.

********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

A learned Judge of this Court after noticing that there was an apparent conflict in the view taken by this Court in Basant Kumar Chauhan Vs. VIIth A.D.J. 1994 (1) ARC 107 and Pawan Kumar Vs. Ram Saran 1999 (2) ACJ 1276 with that of the view taken by this Court in Habiburrahman Vs. District Judge & Ors,. 2000 (1) ARC 4 and Ratan Bhushan Shukla Vs. ADJ 1989 (2) ARC 54 has referred the following question for decision by a larger Bench.

" Whether the deposit made under Section 30(1) of U.P. Act No. 13 of 1972 after the date of service of summons of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Order XV Rule 5 C.P.C.?"

This writ petition has been filed for quashing the order dated 22nd March, 1999 passed by the Judge, Small Causes Court, Allahabad by which the application filed by the landlord for striking off the defence of the petitioner- tenant was allowed and the order dated 22nd August, 2001 passed by the Additional District Judge, Allahabad by which the Revision filed by the tenant against the aforesaid order dated 22nd March, 1999 was dismissed.

The landlord-respondent nos. 3 and 4 filed a suit on 3rd January, 1997 in the court of Judge, Small Causes being Suit No. 1 of 1997 for giving vacant possession of the premises and for a decree for arrears of rent and cost of notice as the petitioner-tenant had committed default in payment of rent from March, 1994 and inspite of the notice dated 7th October, 1996 terminating the tenancy and demanding arrears of rent, the tenant did not pay the arrears and nor did he vacate the premises. On 13th May, 1997 the Judge, Small Causes Court directed that the matter should proceed ex-parte but the tenant moved an application for recalling the aforesaid order which application was allowed on 28th August, 1997 with a direction to the tenant to file his written statement. The written statement was thereafter filed on 2nd February, 1999 mentioning therein that the tenant had never committed default in payment of rent and that as the landlord had refused to accept the rent w.e.f. September, 1996, the amount was sent through money-order which too was refused by the landlord as a result of which an application under Section 30 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act') was filed which was registered as Miscellaneous Case No. 60 of 1997 and the rent was thereafter regularly deposited in the said Miscellaneous Case.

On 2nd September, 1999 an application was moved on behalf of the landlord under Order XV Rule 5 of the Code of Civil Procedure (hereinafter referred to as ''CPC') for striking off the defence of the tenant as the tenant had not only failed to deposit the entire arrears of rent but he was also not regularly depositing the monthly amount due during the continuation of the suit as was required under Order XV Rule 5 CPC. An objection was filed on behalf of the tenant to the aforesaid application pointing out that he had been depositing the rent in Miscellaneous Case No. 60 of 1997 filed under Section 30 of the Act, which amount could be withdrawn by the landlord to which the tenant had no objection.

The learned Judge, Small Causes Court, Allahabad by his order dated 22nd March, 1999 allowed the application filed by the landlord and ordered that the defence should be struck off on the ground that the amount deposited under Section 30 of the Act in the Miscellaneous Case could not be considered for the purposes of Order XV Rule 5 CPC. The Revision filed by the tenant against the aforesaid order was also dismissed by the order dated 22nd March, 1999 holding that even after 7th July, 1997 when the tenant had put his appearance in the suit, the monthly amount was deposited not in the said Court but in Miscellaneous Case No. 60 of 1997 which could not have been taken into consideration for the purposes of Order XV Rule 5 CPC.

The question that has been referred to us is whether the deposit made under Section 30 (1) of the Act after the date of service of summons in a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purposes of deciding the question whether the defence should or should not struck off under Order XV Rule 5 CPC.

In order to appreciate the controversy it would be necessary to place the relevant provisions of Sections 20 and 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 20 (1). Bar of suit for eviction of tenant except on specified grounds. - (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner:

.....................

(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

..............

(4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground:

.....................

.....................

(6) Any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits.

Section 30. Deposit of rent in court in certain circumstances.- 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."

The reference was made by the learned Judge because in Basant Kumar Chauhan (supra) it was held that throughout the continuation of the suit the monthly amount due, as contemplated under Order XV Rule 5, has to be deposited in the Court where the suit for eviction is filed and any deposit made under Section 30(1) of the Act cannot be deducted but a contrary view was taken in Habiburrahman (supra) and Ratan Bhushan Shukla (supra) that such deposit could be taken into consideration.

When the matter was taken up by this Court learned counsel appearing for the parties did not appear and so we appointed Sri Manoj Kumar as amicus curie. He has very ably assisted us.

Section 20 of the Act deals with bar of suit for eviction of tenant except on specified grounds. Sub-section 2 (a) of Section 20 provides that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on the ground that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Sub-section 4 of Section 20 provides that in such a suit, if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit, after deducting therefrom any amount already deposited by the tenant under Section 30 (1), the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Section 20 (3) of the Act was omitted by U.P. Civil Laws Amendment Act, 1972 w.e.f. 20th September, 1972 and instead a similar provision was incorporated in Order XV CPC in order to bring within its scope all buildings and not merely those covered by the Act.

The present reference concerns Orders XV Rule 5 CPC. The Supreme Court comprehensively analysed the said provisions in the case of Bimal Chand Jain Vs. Sri Gopal Agarwal AIR 1981 SC 1657 and the relevant paragraph in this context is quoted below:-

"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 interests 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 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 reserve of discretion vested in the court entilling 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 (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."

In the present case, however, we are called upon to consider whether the deposit made under Section 30 of the Act can be deducted while calculating the "monthly amount due" and not whether the defence should be struck off in a case where no representation has been filed by the tenant irrespective of the fact that on record there exist sufficient facts and circumstances not to do so.

On a careful analysis of the provisions of Order XV Rule 5 CPC we find 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.  

Explanation 2 to Order XV Rule 5 (1) CPC stipulates that "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation after making no other deduction except the taxes, if any, paid to the 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 Act. The expression "monthly amount due" has been defined in Explanation 3 to Rule 5 (1) of Order XV Rule 5 CPC to mean 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.

What has to be noticed in Order XV Rule 5 CPC is that the Legislature while defining "monthly amount due" which has to be deposited during the continuation of the suit has deliberately excluded the deduction of any amount deposited under Section 30 of the Act. We are, therefore, faced with a situation where the same Rule defines "entire amount admitted by him to be due" and "monthly income due" occurring in the first part and second part respectively of the Rules and while the former phrase stipulates the deduction of the amount deposited under Section 30 of the Act, the second part omits to mention such a deduction. It has, therefore, to be inferred that the Legislature has, in its wisdom, deliberately made a provision for deduction of the deposit of the amount under Section 30 of the Act only in respect of the amount to be deposited at or before the first date of hearing and not in respect of the monthly amount to be deposited throughout the continuation of the suit. This, coupled with the fact that both Explanation 2 and Explanation 3, referred to above provide "after making no other deduction except...." clearly leads us to no other conclusion except that only such deductions are to be made which have been specifically provided. The "monthly amount due" has to be construed in the manner provided for in Explanation 3 to Rule 5 (1) of Order XV CPC and in no other manner.

We may, in this context, usefully refer to some decisions of the Supreme Court which hold that where a Statute stipulates that the word or phrase shall mean a particular thing than no other meaning should be assigned.

In the case of Feroze N. Dotiwala Vs. P.M. Wadhwani [2003] 1 SCC 433, 442 the Supreme Court held as follows:-

"The language of the definition of the phrase in Explanation 4 to Section 4A is sufficiently clear and unambiguous. This coupled with the use of the word "means" in the Explanation shows that the definition is exhaustive. As has been observed in Feroze N. Dotiwala Vs. P.M. Wadhwani [2003] 1 SCC 433, 442:

"Generally, when the definition of a word begins with "means" it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself......

Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition.

The Constitution Bench of the Supreme Court in PLD Corporation Ltd., Vs. Presiding Officer reported in [1990] 3 SCC 682 held that when the statute says that a word or phrase shall mean certain things it is a "hard and fast definition, and no other meaning can be assigned to the expression than is put down. A definition is an explicit statement of the full connotation of a term."

This view was reiterated by the Supreme Court in Commissioner of Trade Tax, U.P. Vs. M/s. Kajaria Ceramics Ltd,. reported in 2005 AIR SCW 3450.      

The object of an explanation to a statutory provision has been succinctly stated by the Supreme Court in S. Sundaram Pillai etc. Vs. V.R.Pattabiraman AIR 1985 SC 582 as follows:-

"Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-

(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment, and it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same."

It, therefore, follows that when the "entire amount admitted by him to be due" is deposited at or before the first hearing of the suit, the amount deposited under Section 30 of the Act, if any, can be deducted but while depositing the "monthly amount due" throughout the continuation of the suit, the amount deposited under Section 30 of the Act cannot be deducted. Needless to say 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 the period stipulated in Order XV Rule 5 CPC.

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.

............

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 (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.  

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.

In the reference order four decisions have been noticed. In Basant Kumar Chauhan (supra), after analyzing the provisions of Order XV Rule 5 CPC the Court observed:-

"It is, therefore, obvious that the provisions contained in Order XV, Rule 5, read with Explanation II clearly stipulate that any amount deposited in any Court under Section 30 of the U.P. Act No.13 of 1972 could be taken notice of by the Court where the suit was pending only so far as the deposits required to be made at or before the first hearing of the suit were concerned. The other deposits required to be made throughout the continuation of the suit are the regular deposits of the monthly amount due within a week from the date of its accrual.............Considering the Explanation III to Order XV, Rule 5 of the Civil Procedure Code it is clear that for finding out the ''monthly amount due' the deposits made in any Court under Section 30 of the U.P. Act No.13 of 1972 are not to be taken into account. .........Obviously, therefore, once in any suit by a lessor for the eviction of a lessee after the determination of his lease, the tenant defendant comes to know of the pendency of the suit and puts in appearance therein, a statutory obligation stands cast upon him to regularly deposit the monthly amount due as envisaged under Explanation III to Order XV, Rule 5(1) of the Civil Procedure Code in the suit regularly throughout its continuation within a week from the date of its accrual in order to save his defence from being struck-off."

We, in view of the discussion made above, entirely agree with the views expressed by the learned Judge in the aforesaid case of Basant Kumar Chauhan (supra).

In Pawan Kumar (supra), the dispute was with regard to the amount deposited on the first hearing and not with regard to any deposit made under Section 30 of the Act.

A view to the contrary was, however, taken by a learned Judge of this Court in Habiburahaman (supra) and it was observed as follows:-

"By these orders the Court below have struck off the defence of the petitioner and while striking off the defence of the petitioner, the Courts below have not considered the amount deposited under Section 30 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (the Act). This is not correct."

Apart from the fact that from a perusal of the aforesaid judgment it is not clear as to whether the deposit related to the first or the second part of Order XV Rule 5 CPC, the Court had not considered the provisions of Order XV Rule 5 CPC and only a passing remark was made that it is not correct that the amount deposited under Section 30 of the Act cannot be considered.

In the case of Ratan Bhushan Shukla (supra), it was also observed by a learned Judge of this Court that the only ground taken in the application filed by the landlord for striking off the defence under Order XV Rule 5 CPC was that the tenant had failed to deposit the rent month by month as provided for under Section 30 (3) of the Act. The Court allowed the writ petition as the Revisional Court had exceeded its jurisdiction by carving out a new ground that the deposit was not made on the 7th day of every month. The Court also, without any analysis of the provisions of Order XV Rule 5 CPC, merely observed that the deposit under Section 30 should have been taken into consideration.  

There are two more decisions of this Court which throw some light on the reference. In Ram Kumar Singh Vs. IIIrd Additional District Judge, Ghaziabad 2003 (1) ARC 294, after placing reliance on the decisions rendered in Basant Kumar Chauhan (supra) and Sayeed Hasan Jafar alias Shakil Ahmad Vs. Rurabal Haq and others, 1995 (2) ARC 341 it was observed as follows :-

"In view of the aforesaid decisions of this Court, it is evident that the deposit of the monthly rent/compensation by the petitioner (defendant) under Section 30 of the U.P. Act No. XIII of 1972 during the continuance of the said S.C.C. Suit No.26 of 1977 were illegal, and the same could not be said to be made in compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure. Once the "first hearing" in the said S.C.C. Suit No.26 of 1977 arrived, it was no longer open to the petitioner to continue to deposit the monthly rent/compensation under Section 30 of the U.P. Act No. XIII of 1972 in the Court of Munsif, Ghaziabad. The said monthly deposits should have been made in the said S.C.C. Suit No.26 of 1977 before the respondent No.2. Thus, the petitioner failed to comply with the requirements of the second part of Order XV Rule 5(1) of the Code of Civil Procedure namely, head (B) above."

The aforesaid decision reiterates the view taken in the case of Basant Kumar Chauhan (supra) with which have expressed our concurrence.

Another learned Judge of this Court in Dr. Ram Prakash Mishra (since deceased), substituted by Arvind Mishra & Anr. (L.Rs.) Vs. IVth Additional District Judge, Etah & Anr,. 1999 (1) ARC 7, however, observed to the contrary:-

"In the present case as per the finding of fact recorded by the trial court and even not assailed before this Court that the tenant petitioner under Section 30 (1) of the Act had already deposited rent due up to March, 1981 i.e. much more than the amount which had fallen due. Therefore in this view of the matter there has been substantial compliance of the provisions of Order XV Rule 5 C.P.C. as the amount so deposited under Section 30 (1) of the Act was readily available to the landlord and his interest of securing payment of his dues was fully safeguarded. In these circumstances, the revisional Court should not have interfered in the discretion of the trial Court whereby the Court has refused to strike off the petitioner's defence. The impugned order, therefore, cannot be sustained."  

From a perusal of the aforesaid decision it is also not clear whether the matter related to the first part or the second part of the Order XV Rule 5 CPC. As seen above, there is a substantial difference between the deposits made in these two parts because under the first part the amount deposited under Section 30 can be deducted whereas under the second part there is no provision for deduction of the said amount.

Basant Kumar Chauhan (supra) and Ram Kumar Singh (supra), in our considered opinion, have correctly appreciated the provisions of Order XV Rule 5 CPC and we have not been able to persuade ourselves to uphold the view taken to the contrary in Habiburrahman (supra), Ratan Bhushan Shukla (supra), and Dr. Ram Prakash Mishra (supra). These decisions have not considered the specific requirement contained in the second part of the Order XV Rule 5 (1) CPC relating to deposit of the monthly amount due throughout continuation of the suit. They, therefore, with utmost respect to the learned Judges deciding the cases, do not lay down the correct law.

We, therefore, upon an analysis of the provisions of Rule 5 (1) of Order XV CPC, hold that while depositing the amount at or before the first hearing of the suit, the tenant can deduct the amount deposited under Section 30 of the Act but the deposits of the monthly amount thereafter throughout the continuation of the suit must be made in the Court where the suit is filed for eviction and recovery of rent or compensation for use and occupation and the amount, if any, deposited under Section 30 of the Act cannot be deducted.

The Reference is answered accordingly.

Let the papers be now placed before the appropriate Court for deciding the petition on merits.

Date: 30.11.2005

NSC


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