MOHAMMAD YUNUS Vs. HEMANTPATI SINGH

JUDGEMENT

(1.) THIS is a revision by the defendant-tenant against an order striking off the defence. The plaintiff filed the suit alleging that an ice factory has been leased out to the plaintiff initially for a period of ten months for an amount of Rs. 17, 500/- with effect from 1-4-1973. The defendant continued in possession as lessee, and in the year 1975 the lease rent was revised to an amount of Rs. 25000/- per year which the defendant paid for the year 1975. Thereafter the rent was reduced to Rs. 20,000/- per year on the request of the defendant. The plaintiff terminated the tenancy by a valid notice, and a claim for ejectment, arrears of rent due upto 31st July, 1978 damages for use and occupation as from 1-8-1978 onwards and pendente lite and future damages was also claimed. An application by the plaintiff was moved for striking off the defence, on the allegation that the monthly rent due after the filing of the suit had not been paid by the defendant. The trial court took the view that as the defendant had not admitted that any rent was due from him, it was not necessary for him to deposit the initial rent claimed up to the date of the filing of the suit. It, however, held that as the monthly rent due after the filing of the suit had not been paid the defence was liable to be struck off. Counsel for the applicant in the revision urged that inasmuch as there was a contract between the parties that the rent was payable yearly, the provisions of Order 15 Rule 5 as regards monthly deposits did not apply. It is necessary at this stage to extract the relevant portion of Order 15 Rule 5 and the Explanation III thereto. * * * *

(2.) THE question that arises is as to whether these provisions will apply to a tenancy where an yearly rent has been reserved. Counsel for the plaintiff-opposite party urged that inasmuch as the lease was not registered as required by Sec. 107 of the Transfer of Property Act, the tenancy was a monthly tenancy, and as such, the amount of yearly rent reserved had to be bifurcated into twelve equal instalments. In the present case it is not necessary to refer to cases decided under Secs. 106 and 107 of the Transfer of Property Act, for they are not directly relevant for a correct interpretation of the provisions of Order 15 Rule 5. THE relevant provisions of Order 15 Rule 5 have already been quoted. THE defendant is under an obligation to deposit the monthly amount due within a week from the date of its accrual whether or not he admits any amount to be due. THE words "whether or not he admits any amount to be due", refer to the initial deposit that has to be made by the defendant in order to save his defence from being struck off. So far as the subsequent deposits are concerned they are governed by Explanation 3. Explanation 3 lays down that monthly amount due means the amount due every month whether as rent or compensation for the use and occupation at the admitted rate of rent. THE phrase 'admitted rate of rent' used in Explanation 3 obviously has reference to the rate of rent admitted by the defendant in his written statement. THE rate of rent admitted in the written statement, has to be one which is admitted for each month. This position is clear from the fact that Explanation 3 purports to define the word 'monthly amount due' and not the rent for any larger or smaller period of time. In the present case even if it be taken, that on account of the lease deed not having been registered as required by Sec. 107 of the Transfer of Property Act, the tenancy was a monthly tenancy, as an yearly rent was reserved between the parties the case would not come within the purview of Order 15 Rule 5 so far as deposits of rent for periods subsequent to the filing of the suit are concerned. Counsel for the plaintiff urged that such an interpretation could take yearly tenancies out of the purview of Order 15 Rule 5.This may be so, but the Court cannot read into Order 15 Rule 5 which is of a penal nature, words which are missing therein so as to make it applicable to the yearly payments. THE lacuna can be filled up only by the Legislature and not by an interpretative exercise of the Court. THE order striking off the defence cannot, as such, be upheld.