KANHAI Vs. PRAFULL KUMAR

JUDGEMENT

(1.) Heard learned counsel for the petitioners.

(2.) Writ petition arises out of the proceedings of suit no. 14/2011 filed by the plaintiff-respondent before the Judge, Small Causes Court, Allahabad for recovery of arrears of rent and eviction against the petitioner-tenants. Suit was filed on the allegation that the petitioner-defendants were tenants on a monthly rent of Rs.200/- excluding water tax and the tenancy was month to month beginning from first day of every calender month. It was further pleaded that tenant was defaulter in payment of rent for more than four months and despite service of notice, the arrears was not paid, as such, the tenancy was terminated. Suit was contested by the petitioner-tenants by filing written statement denying the plaint allegation. It was pleaded that originally the house in dispute was in tenancy of their father on a monthly rent of Rs.10/-, which was duly paid and after his death, petitioners became tenants and had regularly paid the rent, the receipts whereof were not issued. It was further pleaded when the respondent-landlord refused to accept the rent it was deposited under Section 30 of the Act No. XIII of 1972 (in short the 'Act') and there was no outstanding rent. During the pendency of the proceedings, the respondent-landlord moved an application under Order XV Rule 5 C.P.C. alleging that the tenants have made a statement in paragraph 14 of the written statement that rent is being deposited by tender in the court but but neither any statement of account has been filed nor copy of the tender. Trial court after considering the pleadings of the parties and evidence brought on record allowed the application on a categorical finding that after filing of the suit, tenants failed to make any deposit in the court and as such, has failed to comply with the provision of Order XV of Rule 5 C.P.C. Tenant-petitioners went up in revision. Revisional court has also affirmed the finding that the tenant-petitioners after putting in appearance on 1.10.2011 has failed to deposit any rent in accordance with the provision of Order XV Rule 5 C.P.C. in the court where the proceedings of the suit were pending and the deposit, if any, made for this period under Section 30(1) of the Act cannot be held to be a valid deposit for the purpose of satisfying the requirement of Order XV Rule 5 C.P.C. and accordingly dismissed the revision.

(3.) It has been urged by learned counsel for the petitioners that both the courts below have committed manifest error of law inasmuch as the provision of Order XV Rule 5 CPC become applicable only when the tenant admits the rent to be due and since the arrears of rent were categorically denied the said provision has wrongly been made applicable to the present case. It has further been submitted that entire rent having been deposited under Section 30 of the Act there was no outstanding arrears and the tenant was entitled to be extended the benefit and the defence has wrongly been struck off.