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CHANDAN SINGH versus SHYAM SUNDER AGRAWAL

High Court of Judicature at Allahabad

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Chandan Singh v. Shyam Sunder Agrawal - CIVIL REVISION No. 320 of 2005 [2006] RD-AH 11097 (7 July 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Revision No.320 of 2005

Chandan Singh  Vs.  Shyam  Sundar Agrawal.

Hon'ble Prakash Krishna, J

Questioning the legality and propriety of the order dated 25th May, 2005 whereby the defence of the tenant  has been struck off, the present revision has been filed under section 25 of the Provincial Small Causes Court Act.

The factual matrix of the case qua the above controversy in brief is as follows:-

The opp.party, Shyam Sundar Agrawal, instituted S.C.C. Suit No.1 of 2004 against the present applicant Chandan Singh,  who is defendant in the said suit for recovery of damages for use and occupation of the disputed shop as well as  ejectment of the defendant on the pleas inter alia that for a period of 11 months, the plaintiff on February 20, 2003 let out the disputed shop, described at the foot of the plaint, on a monthly rent of  Rs.5,000/- to the defendant tenant. It was pleaded that the defendant tenant executed  a rent deed for the aforesaid period of  11 months on the said date i.e. 20-02-2003.  The defendant having failed to handover the vacant possession after the expiry of the aforesaid period of 11 months, the necessity to file the suit arose after determining his tenancy by means of the notice dt.13th of January, 2004.

In reply, the defendant-applicant pleaded that the agreed rate of rent is Rs.500/- per month inclusive of house tax and water tax and he being semi literate executed the rent note on 20th of  February, 2003, without understanding its purport and contents. He admitted  the installation of  electric connection but pleaded that it was done with the knowledge and consent of the plaintiff.  In additional  pleas it has been pleaded that the defendant has taken the disputed shop on rent for carrying on the business of selling South Indian dishes under the name and style of ''Madras Dosa'. It has been further pleaded that a sum of Rs.50,000/- was demanded towards the security by the plaintiff at the time of letting. The defendant being unable to pay such a huge amount in lump-sum handed over signed blank stamp paper as also five post dated cheques of Rs.30,000/- besides Rs.20,000/- in cash.  The allegation that the shop was given for a fixed period of 11 months was denied with the plea that it was agreed upon that the defendant tenant shall continue as tenant so long he pays the rent.

The suit is pending adjudication.

An application purporting to be under  Order 15 Rule 5  C.P.C. (as amended in the State of U.P.) has been filed, giving rise to the present revision, by the plaintiff landlord on the allegations that the defendant has misrepresented that  the monthly rate of rent as Rs.500/- while there is overwhelming evidence by way of rent note, cheques, monthly receipts and the receipt counter-foils to show that the rent is Rs.5000/-. The defendant having failed to deposit the rent at the rate of  Rs.5000/- per month which was agreed rent between the parties, his defence is liable to struck off under Order 15 Rule 5 C.P.C..  The tenant applicant, in reply, submitted that the said application is not maintainable as rent is Rs.500/- per month inclusive of house tax and water tax. It was further stated that the plaintiff has fabricated counter foils of the rent receipts and also the rent note.  No such rent receipt was ever issued by the plaintiff to the defendant nor the defendant has put his signature on the counter foils.

The court below by the order under revision allowed the application of the plaintiff under Order 15 Rule 5 C.P.C.  and  struck off the defence of the defendant tenant, who is applicant in the revision on the finding that the monthly admitted rate of  rent was Rs.5,000/-.  Challenging the aforesaid judgment and order, the present  revision has been preferred.

Before proceeding further it is apt to reproduce the relevant rules i.e. Order 15 Rule 5C.P.C., as follows:-

"5. 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." ---UP. Act (57 of 1976) (1-1-1977) and (w.e.f. 3-10-1981)."

Order 15 Rule 5 C.P.C. was added in the State of  U.P. by way of U.P. Civil Laws (Amendment) Act, 1972 and has been amended from time to time.  It provides that unless the defendant deposits the admitted rent of compensation on or before the first date of hearing of the suit  and also continue to deposit the monthly rent regularly, his defence is liable to be struck off.

The aforesaid provision contemplates the deposit of admitted arrears of rent on or before the first date of hearing due together with the interest at the rate of 9 per cent per month and that the tenant shall continue to deposit the entire amount admitted by him to due throughout the continuance of the suit after the aforesaid first date of hearing month by month as contemplated under Order 15 Rule 5 C.P.C..  The three explanations appended to the aforesaid provision explains the various phrases, "first hearing", "entire amount admitted by him to be due" and "monthly rent due".  In the case in hand the controversy involved centers round to the meaning to be assigned  to the word "admitted" as  has occurred under Order 15 Rule 5 C.P.C.. While assigning proper meaning to the expression "entire amount admitted by him to be due" with special emphasis on the word ''admitted', the object and the purpose of enacting the aforesaid provision may also be taken into account.  The learned counsel for the tenant applicant strenuously contended that the aforesaid expression "admitted" should be interpreted in its literal sense.  Meaning thereby, he submitted,  that the amount of rent as mentioned in the written statement should only be taken into account for the purposes of determination of the applicability of Order 15 Rule 5 C.P.C., in a case.  

The learned counsel for the plaintiff respondent on the other hand submitted that the material on record prima facie discloses the rate of monthly rent payable at Rs.5000/-.  He invited attention of the court to the findings recorded by the court below and also to the evidence such as rent note, rent receipts, counter-foils and the respective pleas of the parties with regard to the payment of rent at the rate of Rs.5000/- per month through cheques and submitted that if the word ''admitted' is interpreted in its literal sense it may defeat the very object of enacting Order 15 Rule 5 C.P.C.  He submitted that the phrase "entire amounted admitted by him to be due" should be interpreted in a reasonable way as inference of admission from the material on the record.  To put it in simple words, even if the tenant has pleaded a different rate of rent but the material on record shows otherwise and the dispute raised by the tenant is for the sake of dispute for the purposes of Order 15 Rule 5 C.P.C., the admitted rate of rent should be taken which is the inference drawn from the facts on record.  

Now the question is whether the word ''admitted' used in Order 15 Rule 5 C.P.C. should be interpreted literally or principle of purposive or functional rule of interpretation should be applied for.  The Apex Court in the case of  Administrator, Municipal Corporation, Bilaspur Dattatraya Dahankar A.I.R. 1992 S.C. 1846  has observed as follows:-

"The mechanical approach to construction is altogether out of step with the modern positive approach.  The modern approach is to have a purposeful construction that is to effectuate the object and purpose of the Act."

And, it rejected the literal interpretation given by the High Court to the provision involved therein.

In  Director of Enforcement  Vs. Deepak Mahajan  1994 (31) A.C.C. 260  the Supreme Court has held that the mechanical interpretation of the words and application of legislative intent devoid of concept of purpose and object will render the legislation insane. To the same effect is  Organo Chemical Industries Vs. Union of India, 1970 (4) S.C.C. 573  wherein it was held that a bare mechanical interpretation of phrase "devoid of concept of purpose and object" will reduce the most legislation to nullity.

An interesting question arose before the Apex Court in the case of  U.P. Bhoodan Yajna Samiti Vs. Braj Kishore AIR 1988 S.C. 2239.  Under the aforesaid Act the words "landless persons" were required to be interpreted.  The contention was that the persons who admittedly have no land in the village in which the land to be allotted situated would be covered by the expression "landless persons", in spite of the fact that they may be traders and paying income tax and may have properties in the city. After noticing the scheme of Bhoodan Yajna, the movement which Acharya Vinoba Bhave and later Jai Prakash Narain carried out,  and the purpose of movement, it came to the conclusion that "landless persons" means only those landless persons whose main source of livelihood was agriculture and who were agriculturist residing in the village where the land situated and who had no land in their name at the time.  It never meant that all those rich persons who are residing in the cities and have properties  in their possession but who are taken landless persons as they did not have any agricultural land in their name in the Tehsil or the village where the land was situate or acquired by the Bhoodan Samiti that could allotted in their favour.  It quoted one Shloka (verse) and rejected the plain ordinary dictionary meaning given to the words "landless persons"  and also held that the scheme of Bhoodan Yajna has to be looked into.

The Apex Court in the case of  Gujrat High Court Vs. G.K.M. Panchayat AIR 2003 S.C. 1201  has dealt with in great detail the principle of purposive interpretation and has observed that a Statute as is well known must be interpreted having regard to the purport and the object which it seeks to achieve.  It has been further held that the court, while interpreting the provision of a Statute, although is not entitled to rewrite the Statute itself, is not debarred from " ironing out of creases."  "The court should always make an attempt to hold rule and interpret same in such a manner which would make it workable."

Purpose and object of enactment of Order 15 Rule 5 C.P.C. would be defeated if a literal interpretation to word ''admitted', as suggested by the learned counsel for the tenant is given.  An unscrupulous tenant, with a view to avoid the mischief of Order 15 Rule 5 C.P.C. may take a plea that the rate of rent was not as pleaded by the plaintiff but was a nominal amount. The idea of enactment of Order 15 Rule 5 C.P.C. is to compel the tenant to pay the rent at least at the rate he was paying earlier to the landlord notwithstanding the pendency of the litigation.  Order 15 Rule 5 C.P.C. was enacted with a view that the landlord may not have to wait till the final decision of the case to recover his rent.  He should at least get the rent at the rate he was getting before the start of litigation and a tenant may not enjoy the tenanted property without paying rent.  The purport and object of Order 15 Rule 5 C.P.C. is to see that a tenant does not get undue advantage by withholding the payment of rent or pay it at a lesser rate than the one at which he was paying earlier on some lame excuse.  Looking to the object which Order 15 Rule 5 C.P.C. seeks to achieve, a literal interpretation to the word ''admitted' would not serve the purpose and this court is of the view that a purposive approach of interpretation should be resorted to.

It is relevant to note few authorities of this Court on the above subject.  This Court in the case of Indra Narain Saxena Vs. Ivth A.D.J. 1977 A.L.J. 876  has considered somewhat a similar controversy.  In this judgment the court noticed the contention of the defendant tenant that there was no admitted rent due and hence the tenant was within right not to deposit any amount under Order 15 Rule 5 C.P.C. In support of the aforesaid contention reliance was placed upon an earlier judgment of this Court in the case of  Janaki Prasad Saxena Vs. Tara Krishna Chaturvedy1975(1) ALR 354 wherein it was held that what is material for the purposes of attracting Order 15Rule 5 C.P.C. is that the rent must have been admitted by the defendant tenant, to be due, only then it becomes payable to the person entitled to get it. Power to strike off defence has a serious consequence on the rights of  defendant to offer defence, the same has to be resorted to only when the requirement of the said provision has been strictly proved.  To the same proposition another case  Ladly Prasad Vs. Ram Shah Billa AIR 1976 Alld 261 was also pressed into service.  The aforesaid two judgments were distinguished on the ground that tenant's plea of non admission of  rent was evasive.  It was further held that it would depend upon the facts of each case as to whether there is any amount admitted by the tenant to be due or not.

The learned counsel for the applicant has referred a Division Bench judgment of this Court  Haider Abbas Vs. Additional DistrictJudge, 2006 Alld.Civil Journal 108.  The said judgment is besides the point and has hardly any application to the controversy presently involved in the revision.  The controversy involved therein has been noted in paragraph 1 of the judgment and that was whether the deposit made under Section 30 (1) of  U.P.Act No.13 of 1972 after the date of service of summon of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purposes of deciding whether the defence should or should not be struck off under Order 15 Rule 5 C.P.C.  The point involved in the case in hands was not even remotely argued or discussed therein.   He has also referred  Sudhir Chand Gupta Vs. Dr. S.K. Raj 1998 (2) A.W.C. 1335  and  Safiq Ahmed Vs. VI th A.D.J. 1997(2) A.R.C.273. These cases are authority for the proposition that where the defendant tenant has given cogent and plausible reason for not depositing the rent within the prescribed period, the Court is not powerless and can condone the lapse on the part of the tenant and decline to struck off the defence.  Discretionary power vests in the court and the said power should be exercised in favour of tenant when there is justifiable ground for not making the deposit strictly in accordance with the provisions of Order 15 Rule 5 C.P.C..

In none of the cases mentioned above, the question as to what meaning should be assigned to the word "admitted" is discussed or answered.

 The court could lay its hand on a recent judgment of Apex Court, under the provisions of  Tripura Buildings (Lease and Rent Control) Act 1975 in the case of  Manik Lal Majoomdar and others Vs. Gouranga Chandra Day and others (2005) 2 S.C.C. 400.  Section 20(1) (b) of the aforesaid Tripura Buildings (Lease and Rent Control) Act 1975 was under consideration before the Apex Court  wherein the interpretation of phrase "admitted by the tenant to be due" to enable him to prefer an appeal before an appellate authority, was involved.  Section 20 of the said Act mandated the appellant to deposit or pay all arrears of rent, "admitted by the tenant to be due" and continues to pay or deposit any rent which may subsequently becomes due in respect of the building in question until the termination of the proceedings before the Rent Control Court or the Appellate Authority as the case may be.  In this statutory setup, the Apex Court in para 6 of the report has observed as follows:-

"The object of sub-section (1)  of  Section 13 of the Act is to avoid litigation for realization of arrears of rent which is likely to accumulate during the course of litigation, which may be a long period and also to deter the tenant from resorting to an unfair practice to use and occupy the tenanted premises without payment of any rent so long as the litigation continues.  The High Court was of the opinion that the reasonable meaning of the words "admitted by the tenant to be due" is the inference of admission from the material on record.  If the material on record prima facie discloses the admission of relationship of landlord and tenant and the rate of  monthly rent payable, the tenant would be required to pay or deposit arrears of rent and continue payment of current rent during the pendency of the litigation, as enjoined under Section 13 of the Act.  Dharmadhikari, J. has expressed his concurrence with the aforesaid view taken by the Division Bench of the Gauhati High Court in the case of Binapani Roy.  We are also of the opinion that the view taken by the Division Bench of the High Court on this point is perfectly sound as giving a literal meaning to the expression "all arrears of rent admitted by the tenant to be due" may defeat the very object of enacting Section 13 of the Act and an unscrupulous tenant may continue to enjoy the premises without payment of any rent to the landlord by protracting the litigation and the landlord may have to wait till the final decision of the case to recovery his dues by taking  execution proceedings."

The above pronouncement of law by the Apex Court leaves no doubt that while interpreting the word ''admitted', in the present statutory setup, literal meaning if assigned to word ''admitted' would make the provision otiose, and unscrupulous tenant may continue to enjoy the premises at a lower rate or without payment of any rent to the landlord.

It is said that "while interpreting the legal position, the court of law cannot be unmindful of hard realities of life.  In our opinion, the approach of the court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential" vide  JT.2005 S.C.(8) 425 Ajit Kumar Nag Vs. General Manager (P.J) Indian Oil Corporation Ltd. Haldia and others.  

Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought.  The task is not easy as the ''language' is often misunderstood even in ordinary conversation or correspondence.  The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it.  No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning, but it can be done only by making another law  or statute after undertaking the whole process of law making (See J.P. Bansal Vs. State of Rajasthan 2003 S.C. 1405, para 12).

On a true and proper construction of written statement along with the other materials on record if court draws a reasonable inference that the dispute of ''admitted rent' raised by a tenant is only for the name sake and there is no real dispute about the ''admitted rent', in such situation it is open to it to insist upon the defendant tenant to deposit the "rent" at the rate pleaded in the plaint, under Order 15 Rule 5 C.P.C., subject to final decision of the suit.

Coming to the facts of the present case, the plaintiff has raised specific plea that the shop in question was let out under a rent note executed by the defendant tenant for a period of 11 months on a monthly rent of Rs.5,000/- excluding the house tax and water tax.  The plaintiff has also filed rent receipts, receipt counter-foils, his bank pass-book and the cheques issued by the defendant to show that the defendant has been paying the rent at the rate of  Rs.5,000/- per month.  Except a bald denial, the defendant has pleaded that he signed blank stamp paper without understanding its contents.  Also, he denied the receipt of rent receipt.  The payment through cheques could not possibly be denied, therefore, he invented a case that the said amount was given by him from time to time as a refundable security.  Security by a tenant, if any, is furnished at the time of start of tenancy and not during its continuance.  In this state of affair, from the pleadings and the evidence on record, it is pretty evident that the admitted rate of rent is Rs.5000/- as pleaded in the plaint.  

The Learned District Judge after taking into account the entire facts and circumstances of the case, for the purposes of disposal of the application under Order 15 Rule 5 C.P.C. has observed as follows:-

"The plaintiff has filed the copy of the receipt dated 20.2.2003 showing that the rate of rent is Rs.5000/- further another receipt dated 28.12.2003 is also filed showing the rate of rent of Rs.5000/-. The plaintiff has also filed the various papers with regard to payment of rent.  The rent has been paid through the cheques of the State Bank of India.  These documents go to show that the rate of rent was Rs.5000/- per month.  The plaintiff has also filed his pass-book wherein it is clear that an amount of Rs.5000/- deposited by the defendant through cheques was deposited in the account of the plaintiff.

xx       xx        xx       xx xx

xx xx xx xx xx

In the case in hand the tenant has denied the payment of the rent at the rate of Rs.5000/- per month, but on the basis of various documents it is held that it was a device adopted by the tenant to plead the rate of rent as Rs.500/- per month and court is to see whether this device is bonafide or not.  I have already held that the device is not bonafide.

It is made clear that any observations made above with regard to the controversy of the rate of rent between the parties shall not be taken as an expression of the opinion on this point, which shall be decided at the time of the decision of the suit when both the parties adduce their evidence on this point."

Though this case was heard on three occasions but on none of the occasions any argument was advanced by the learned counsel for the applicant with regard to the finding, quoted above in this judgment.  The finding, thus, that it was device adopted by the tenant to plead the rate of rent as Rs.500/- per month, is a finding of fact and is based on the relevant considerations. In view of this finding and the law as discussed above, the judgment of the court below does not call for any interference.  The revision lacks merit and is liable to be dismissed.

But before parting with this case, it would serve the interest of justice to afford a last opportunity to the defendant, if he so desires, to save his defence by granting him time upto 31st  of July, 2006 to deposit/pay the balance amount to cover up the monthly deposit of  Rs.5,000/- upto the period of June, 2006 and he will continue to deposit the rent/damages for subsequent period likewise at the rate of Rs.5,000/- per month.  The amount, thus, deposited can be withdrawn by the plaintiff without furnishing any security.  However, as already observed in the judgment under revision by the District Judge, the controversy of the rate of rent between the parties shall be finally adjudicated upon in the suit on the basis of the evidence adduced therein, uninfluenced by any of the observations made in this judgment or in the judgment of the District Judge.  It is also made clear that the observations were made in the judgment with a view to find out the applicability of Order 15 Rule 5 C.P.C. in the light of the arguments of the respective counsel of the parties, without there being any attempt on the part of the court to record a conclusive or final finding on the question of rate of rent, which shall be decided finally by the trial court.

With the aforesaid observations, the revision is dismissed.  However, no order as to costs.

Dt. 7th July, 2006

LBY


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