IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 434 of 2010(O&M) Date of Decision: February 7, 2011. Jatinder Singh Malhi and another. ...... PETITIONER(s) Versus Rajbir Singh. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Manjeet Singh, Advocate for the petitioners. Mr. S.S.Godara, Advocate for the respondent. ***** RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India praying for setting aside impugned order dated 24.11.2009, Annexure P4 vide which defence of present petitioner was struck off for non-payment of arrears of rent. I have heard learned counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court. CR No.434 of 2010 Brief facts relevant for the decision of the present revision petition are that, a suit for possession was filed by respondent-plaintiff against petitioners-defendants for their ejectment from the premises in dispute alongwith recovery of arrears of rent w.e.f. 01.07.2007 to 30.04.2008 at the rate of `5,000/- per month alongwith interest at the rate of 18% per annum from the date of payment till its actual realization alongwith future mesne profits at the rate of `10,000/- per month from the date of filing of the present suit till its actual realization alongwith interest at the rate of 18% per annum with consequential relief of permanent injunction restraining the petitioners-defendants from subletting the demised premises illegally and forcibly. Respondent-plaintiff demanded arrears of rent from present petitioners-defendants at the admitted rate of rent. Onus to prove the payment of rent was on the petitioners-defendants. Their tenancy has been terminated by respondent-plaintiff vide notice dated 05.04.2008. It is pertinent to reproduce Order XV Rule 5 of Code of Civil Procedure (for short the ‘CPC’), which reads as under:- “5. Striking off defence for failure to deposit admitted rent. – (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 the default in making the deposit of the entire amount admitted by him to be 2 CR No.434 of 2010 due or 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 or 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, deposited in any Court. Explanation 3. – 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 on 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, that 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 or any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.” 3 CR No.434 of 2010 As per the said provision, present petitioners-defendants are under obligation to pay the entire arrears of rent for use and occupation on or before the first date of hearing of the suit together with interest thereon at the rate of 9% per annum. It also requires the tenant to pay monthly rate of rent regularly from the date of its accrual. In the present case, even as per admission of petitioners- defendants, they were in arrears of rent since April, 2008 though, the respondent-plaintiff has claimed the rent from July, 2007. Petitioners- defendants have paid only `20,000/- on one occasion and `60,000/- on another occasion towards arrears of rent after filing of present suit. However, even as per the case of petitioners-defendants, the rent has been paid only upto July, 2009. Despite several opportunities, the petitioners-defendants were still in arrears of rent w.e.f. August, 2009 when the impugned order was passed by learned trial Court and rather the petitioners-defendants were proceeded against ex parte, vide order dated 10.08.2009. On their request ex parte order was set aside and another opportunity was given to respondent- plaintiff to file reply to the proceedings and to make payment of arrears of rent and however, no application was filed by petitioners-defendants as per Order 15 Rule 5 (2) of the CPC. Hence, learned trial Court was having no other option but to allow the application of respondent-plaintiff to strike off the defence of present petitioners-defendants. Accordingly, learned trial Court ordered for striking of defence of petitioners-defendants by observing as under:- “6. In case titled Gurjeet Singh Gill Vs Major Paramjit Singh Gothra, 2004(3) PLR 474, Hon’ble Punjab and Haryana High Court has held that the provision of order 15 rule 5 CPC are 4 CR No.434 of 2010 mandatory in character and the tenant is under an obligation to pay the entire arrears of rent for possession, for use and occupation on or before the first hearing of the suit together with interest thereon @9% p.a. and in default his defence is bound to be struck of. 7. In another case titled Suresh Kumar Vs Prem Chand 1993 (2) PLR 408, the Hon’ble Punjab & Haryana High Court has held that when the amount tendered by the petitioner was short of the admitted amount and no representation whatsoever was submitted, his defence was liable to be struck of. 8. In the present suit, the defendants have admittedly not tendered the rent w.e.f. August, 2009. The admitted rate of rent is Rs.5,000/-. The defendants have failed to show a good cause for not tendering the outstanding amount in the court despite availing several opportunity after filing of the present application. 9. In case titled Anandi Devi Vs. Om Parkash 1987 (Supp) Supreme Court Cases 527, the Hon’ble Apex Court held that where the tenant failed to deposit arrears of rent together with interest and costs in compliance with order 15 rule 5 CPC, the landlord’s application for striking of defence must be allowed and eviction suit should be decreed. 10. The object of Order 15 Rule 5 CPC is that no landlord should be deprived of his right to receive the rent and no tenant should be allowed to live in the premises free of charge simply because all sorts of pleas can be taken in the pleadings. In these circumstances, the defence of defendants is struck of. The application is accordingly allowed.” The only plea taken by present petitioners-defendants is that now they are ready to deposit the entire arrears of rent and that some amount has already been paid by them before learned trial Court. However, perusal of 5 CR No.434 of 2010 file shows that this Court vide order dated 03.03.2010 allowed the petitioners to make up the deficiency on account of arrears of rent and further directed to pay the entire dues as existing till date within a period of 10 days, which reads as under:- “Learned counsel for the petitioners contends that the rent is due from August 2009 @Rs.5,000/- per month and at the time when his defence was struck off an amount of Rs.80,000/- was due out of which he has paid Rs.60,000/- and that he is willing to make up the deficiency and also pay the entire rent upto date and further undertakes to deposit Rs.5,000/- i.e., the stipulated rate of rent, before the learned trial Court during the pendency of the suit without any further default. Having regard to the aforesaid, issue notice of motion for 30.06.2010. The petitioners shall deposit Rs.20,000/- and make up the deficiency on account of arrears of rent and also pay the entire dues as existing till date within a period of 10 days from today. In case the needful as indicated above is done, the passing of final order shall remain stayed.” However, even the said order had not been complied with by the present petitioners-defendants and hence, interim order passed in their favour was vacated vide order dated 30.06.2010, which reads as under:- “CM No.9151-CII of 2009 There is no mitigating circumstance made for non- compliance of order dated 03-03-2010. Hence, in view of this, interim directions dated 03-03-2010 are vacated and prayer for extension of time to do the needful is rejected. Application stands dismissed. CR No.434 of 2010 To come up for arguments on 25-8-2010.” 6 CR No.434 of 2010 Hence, in view of these facts, even equity is not in favour of present petitioners-defendants. It cannot be said that any illegality or material irregularity has been committed by learned trial Court by passing impugned order dated 24.11.2009. Law has been well settled in Surya Dev Rai v. Ram Chander Rai and others, 2004(1) RCR (Civil) 147 by Hon’ble Apex Court that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction of this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, there is no merit in the present revision petition. The same is, hereby, dismissed. ( RAM CHAND GUPTA ) February 7, 2011. JUDGE 'om' 7