Code of Civil Procedure, 1908: Ord. XV r.5(as applicable in the State of U.P.) – Striking off defence for failure to deposit the admitted rent – Eviction suit by appellant-lessor against the respondent-lessee on grounds of arrear of rents and damages– Failure of respondent to pay or deposit the due rent – Application u/Ord. XV r.5 for striking off the defence – Allowed by the trial court holding that there was no evidence of payment of rent to the appellant and even if the tenant-landlord relationship is denied, then also application u/Ord. XV r.5 was maintainable – Approved by the revisional court, however, set aside by the High Court holding that respondent was entitled to ‘some indulgence’ – On appeal, held:As per the provision, the defendant is under an obligation to deposit the entire amount admitted by him to be due along with the interest on or before the first hearing and to regularly deposit the monthly amount due within a week of its accrual throughout the pendency of the suit – Consequence of default in making either of these deposit is that the court may strike of his defence – However, court should consider the representation of the defendant if made within 10 days of the first hearing –Such provision has to be 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 – 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 – On facts, the respondent has not denied his status as being the lessee and it has clearly been the case of volitional non-performance with nothing left to guess about the defendant’s mood of defiance – No facts or any circumstance is existing on record to find even a remote reason for extending any latitude or relaxation in operation of Ord. XV r. 5 – Conclusion of the High Court could only be said to be an assumptive one, being not supported by any reason – Furthermore, the deposits made belatedly, pursuant to the unsustainable order of the High Court, would not enure benefit to the respondent – Thus, the order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 A few basic factors related with the provisions of Order XV Rule 5 CPC are that 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: 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 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 asrent 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. [Para 9.1][418-D-G]
1.2 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. [Para 11][423-D-E]
1.3 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. 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 and not as a matter of course. 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. [Para 11.1][423F-H; 424-A-B, D]
1.4 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. [Para 11.2][424-E-F]
1.5 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 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, it cannot be said 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. [Para 12][424-F-H; 425-A-B]
1.6 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 (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. [Para 13][425-D]
1.7 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, 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 landlord- tenant/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. [Para 14][425-F-H]
1.8 On facts, it is at once clear that the defendantrespondent, 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 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 and contra submissions on behalf of the appellant that even in the year 1990, the defendant-respondent admitted the RK 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 nonperformance 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 defendantrespondent 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 the erstwhile owner or otherwise, now in this appeal. Secondly, so far as any affidavit filed by the defendant-respondent in the year 1990, allegedly admitting RK 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. [Para 15][426-A-E]
1.9 In the totality of facts and circumstances, 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 defendant- respondent. 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 defendantrespondent 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. It is rather find 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 of the order impugned, abruptly stated its conclusion that: ‘yet the defendant/tenant deserves some indulgence’.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 previous paragraph, 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 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 nonperformance, the consequence of law remains inevitable, that the defence of such a defendant would be struck off.The impugned order as passed by the High Court cannot be approved and is required to be set aside. [Para 16-18][426-G-H; 427-A-F]
1.10 The submissions made on behalf of the defendantrespondent 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. [Para 19][427-G-H; 428-A]
1.11 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 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.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. [Para 21-22][428-F-H; 429-A]
Bimal Chand Jain v. Sri Gopal Agarwal 1981 (3) SCC
486 : [1982] (1) SCR 124; Manik Lal Majumdar and Ors. v. Gouranga Chandra Dey and Ors. AIR 2005 SC 1090 : [2005] (1) SCR 437; Ladly Prasad v. Ram Shah Billa and Ors. (1976) 2 ALR 8; Kunwar Baldevji v. The XI Additional District Judge, Bulandshahar and Ors. (2003) 1 ARC 637; Miss Santosh Mehta v. Om Prakash and Ors. (1980) 3 SCC 610 : [1980] 3 SCR 325; Smt. Kamla Devi v. Vasdev (1995) 1 SCC 356 : [1994] 6 Suppl. SCR 603; Hisamul Islam Siddiqui and Anr. v. Mohd. Javed Barki 2016 (131) RD 135 –
referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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