BIMAL CHAND JAIN Vs. SRI GOPAL AGARWAL

JUDGEMENT

(1.) The opposite party Sri Gopal Agarwal is the landlord of an accommodation of which the applicant is the tenant. The opposite party filed a suit for ejectment of the applicant from the said accommodation and for arrears of rent. This suit came up for hearing before the VIII Additional District Judge, Agra, exercising the powers of Judge, Small Causes. The applicant filed a written statement and contested the suit. The opposite party, during the pendency of the aforesaid suit, filed an application for striking off the defence of the applicant on the ground that he had failed to make the deposits contemplated by Order XV, Rule 5 C P C. as substituted by the Uttar Pradesh Civil Laws (Rerforms and Amendment) Act, 1976 (U. P. Act 57 of 1976 ). The applicant contested this application. The Court below held that even though the first part of sub-rule (1) of Rule 5 of Order XV C. P. C. had been duly complied with by the applicant, he had failed to comply with its second part. It also noted that the applicant failed to make any representation permitted him by sub-rule (2) of Rule 5 Order XV within the time prescribed in that provision. On this finding it directed the defence of the applicant to be struck off. Aggrieved by the order the applicant filed the present civil revision in this Court under Section 25 of the Provincial Small Cause Courts Act The revision was dismissed by a learned Single Judge of this Court relying on the decision of a Division Bench of this Court in Puran Chand v. Pravin Gupta (1981 A. L. J. 82) where it was held that the word May (used in Order XV Rule 5 C P C) does not confer discretion on this Court to accept a deposit made beyond the time prescribed by the said provision unless on a representation made by the tenant within the period prescribed therein. The Court was of the view that sufficient cause for the delay in making the deposit had been made out. The applicant filed Civil Appeal No. 1759 of 1981 in the Supreme Court against the aforesaid decision of this Court which was allowed. The judgment of the Supreme Court is reported in Bimal Chand v. Gopal Agarwal (A. I. R. 1981 S. C. 1657 ). The order of this Court was set aside and the civil revision was remanded to this Court for fresh consideration. It is thus that this Civil Revision has come up again before this Court. While setting aside the order of this Court and remanding the case back the Supreme Court after referring to sub-rule (2) of Order XV, Rule C. P. C. held: "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 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 the sub-rule (1) namely vested 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, Order XV. " In view of the order of the Supreme Court this Court has now to consider whether there is any such material already on record on the basis of which even in the absence of a representation by the applicant it may be held that there was sufficient cause for non-compliance of the requirement of the second part of sub-rule (1) of Rule 5 of Order XV C. P. C. Counsel for the applicant has urged that even though the applicant had not made any representation as contemplated by sub-rule (2) of Rule 5 of Order XV there was material already on the record which justifies condonation of the delay in making the monthly deposits as contemplated by the second part of sub-rule (1) of Rule 5 of Order XV C. P. C. Before dealing with the precise contention of counsel for the applicant in this behalf I consider it expedient to refer to sub-rule (1) of Rule 5 of Order XV C. P. C. It reads 3 "5. Striking off defence on 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 centum per annum and whether or not he admits any amount 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. " At this very place I also consider it expedient to give the details of such of the deposits made by the applicant in respect of which the trial Court has held that there has been a breach in the compliance of the second part of sub-rule (1) of Rule 5 of Order XV C. P. C. The judgment of the trial Court contains a chart giving details of such deposits. This chart indicates that each month for purposes of computation of rent commenced from the 15th and ended on the 14th of the subsequent month according to English calendar. The monthly rent thus accrued due on the 15th and in order to comply with the requirement of the second part of sub-rule (1) of Rule 5 of Order XV C P C. monthly rent had to be deposited by the applicant by the 22nd that is "within a week from the date of its accrual". The rate of monthly rent being Rs. 500/- is not disputed. Viewed in this back ground the details of rent not deposited by the applicant "within a week from the date of its accrual" would be as follows: Period of month deposit was to be made by Deposit was made on 15. 12. 77 to 14. 1. 78 22. 1. 78 4. 2. 78 15. 1 78 to 14. 2. 78 22. 2. 78 25. 2. 78 15. 10. 78 to 14. 1178 22. 11. 78 8. 12. 78 15. 8. 79 to 14. 9. 79 22. 9. 79 11. 10. 79 15. 10. 79 to 14. 11. 79 22. 11. 79 3. 1. 80 15. 11. 79 to 14. 1279 22. 12. 79 3. 1. 80 15. 12. 79 to 14. 1. 80 22. 1. 80 10. 4. 80 15. 1. 80 to 14. 2. 80 22. 2. 80 10. 4. 80 15 2. 80 to 14. 3. 80 22. 3. 80 10. 4. 80 Now I revert to the submission made by counsel for the applicant. It was urged that since the aforesaid deposits, even though made beyond the time prescribed by the second part of sub-rule (1) of Rule 5, Order XV C P. C were accepted by the Court, the conduct of the Court in accepting these belated deposits constituted the material already on record justifying condonation of the delay in making these deposits even though no representation had been made by the applicant. It was further urged that the chart referred to above also indicated that rent for some months was deposited a few days in advance Lastly it was urged that since by the date when the trial Court ordered the applicant's defence to-be struck off the deposits had been made, even though not as contemplated strictly by the second part of sub-rule (1)of Rule 5 of Order XV C P. C there was a sufficient compliance of the said provision According to counsel for the applicant, for these reasons, the order of the trial Court striking off the applicant's defence deserves to be set aside. Having given my anxious consideration to the submission made by counsel for the applicant I find it difficult to accept the same. In Mranalini B Shah v. B. M. Shah A. I. R. 1980 S. C. 954 Section 12 (3) (b) the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, came up for consideration. This provision quoted in the opening paragraph of the report reads: ". . . . . . . . . No decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. " In that case the tenant did not pay the rent every month as it fell due but after intervals of 2, 3 and 4 months. Benefit of Section 12 (3) (b) was still given to him The High Court held that the term "regularly" in the latter part of Section 12 (3) (b) is only directory and not mandatory and there fore, substantial compliance with this provision is enough. Obviously, it held that if the standard rent and permitted increases are paid by the tenant, even at irregular intervals during the pendency of appeal so that at the time of the decision of the appeal no rent remains in arrears, that would be a sufficient compliance with the requirement of clause (b ). Reversing the judgment of the High Court it was held by the Supreme Court: "the decisions of this Court referred to above in any case, make the position quite clear that Section 12 (3) (b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hand of Courts. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12 (3) are mandatory, and must be strictly com plied with by the tenant during the pendency of the suit or appeal if the landlord's claims for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12 (3) has a significance of its own. It enjoins a payment or tender charac terised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (b), tender or pay it every month as it falls due, or at his discretion, in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us the Court has no discretion to treat what were manifestly irregular payments, as substantial com pliance with the mandate of this clause irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant" Reverting to the provision under consideration in the instant case namely the second part of sub-rule (2) of Rule 5 of Order XV C. P. C. it would be seen that here in addition to the word "regularly" the words further used are "within a week from the date of its accrual" They are apparently more specific and as such what has been laid down by the Supreme Court in the case of Mranalini B. Shah (supra) will apply with greater force in interpreting the provision under consideration in the instant case Further even while interpreting the provision under consideration in the instant case the Supreme Court has not overruled the Division Bench decision of this Court in the case of Puran Chand (supra) in its entirety. It is apparent from the following expression occurring in the judgment of the Supreme Court in the case of Bimal Chand (supra), "to that extent, we are unable to agree with the view taken by the High Court in Puran Chand supra. " (Emphasis supplied ). The ratio decidendi of the decision of the Supreme Court in this case is that notwithstanding the requirement of a representation being filed within the period prescribed by sub-rule (2) of Rule 5 of Order XV C. P. C. the default incompliance of the requirements of sub-rule (1) thereof, could even in the absence of such a representation, be still condoned if there was material already on record justifying such condonation. It has not been held in the said case that even if no representation has been filed as contemplated by sub-rule (2) and even if there is no material already on record justifying condonation of the default in compliance of the requirements of sub-rule (1) of Rule 5 of Order XV C. P. C. the Court has still discretion not to strike off the defence. The mere fact that rent for some months was deposited by the applicant in advance cannot obviously constitute sufficient cause for his default in making the deposit of rent of various months referred to above "within a week from the date of its accrual. " The deposit of rent for a particular month in advance will have the only consequence that in respect of the deposit of rent for that month the provision of the second part of sub-rule (1) of Rule 5 of Order XV C. P. C. will be deemed to have been complied with. In the case of Mranalini B. Shah (supra) also it was pointed out that for due compliance of the require ment of the relevant provision in that case it was open to the tenant to pay rent in advance. The other submission made by counsel for the applicant that the conduct of the Court below in accepting belated deposits constituted material already on record justifying condonation of the default is equally devoid of force, There is no provision in Order XV Rule 5 C. P. C and none has been pointed out anywhere else which prohibits a Court from accepting deposits of rent in a pending suit made after the expiry of the period con templated by sub-rule (1) of Rule 5 of Order XV C P. C. The procedure of making deposits of rent in pending cases, as is well known, is that a tender is made in a prescribed from which is passed by the presiding officer almost in a routine manner and the deposit is made in pursuance of such tender. There is no application of mind by the Presiding Officer at the stage of passing the tender. The landlord normally does not even know when the tender is presented and passed. If acceptance of deposit made by a tenant in the aforesaid manner is taken to constitute sufficient cause justifying condonation of his default there will be almost no case where the second part of sub-rule (1) of Rule 5 of Order XV may be attracted. In view of the observations made by the Supreme Court in Mranalini B. Shah and in view of what has been stated the place of substantial compliance also can not be accepted. At this place it may be pointed out that except making the aforesaid submissions no other material on the record of the Court below has been brought to my notice by counsel for the applicant on the basis of which it could said that the default committed by him in compliance of the requirement of the second part of sub-rule (1) of Rules 5 of Order XV C. P. C. has been sufficiently explained by the applicant. In the result I find no merit in this Civil Revision. It is accordingly dismissed. There shall, however, be no order as to costs. .