Civil Revision No.1017 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1017 of 2011 (O&M) Date of Decision: April 19, 2011 Narinder Pal .....Petitioner v. Surinderjit Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.B.R.Mahajan, Advocate for the petitioner. Mr.Anil Chawla, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 12.1.2011, Annexure P1, passed by learned Civil Judge, Junior Division, Amritsar, vide which application filed by respondents-plaintiffs under Order XV Rule 5 of the Code of Civil Procedure (hereinafter to be referred as `the Code') was accepted and defence of petitioner-defendant was ordered to be struck off. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that the present suit has been filed by respondents-plaintiffs for possession of the land in dispute as well as for recovery of `25,500/-, as the amount, for use and occupation of the disputed land/premises, with interest @ 24% on the plea that the premises was given on lease to petitioner-defendant for a period of ten years @ `17,000/- per annum, vide lease deed dated 19.12.1992 and the said lease deed expired on 4.6.2002 and, however, after expiry of lease period, possession was not handed over to respondents- Civil Revision No.1017 of 2011 (O&M) -2- plaintiffs, hence, it is contended that petitioner-defendant is in illegal possession of the land in dispute since 4.6.2002, whereas case of petitioner- defendant is that as per terms and conditions of the lease deed, the defendant could retain the possession on fresh terms and conditions and that he is having right to get the lease deed renewed and, hence, he filed counter- claim claiming relief of the specific performance of the lease deed dated 19.12.1992 seeking issuance of direction to respondents-plaintiffs to get the lease deed renewed for a further period of ten years, i.e., 4.6.2002 to 3.6.2012 and, hence, it was pleaded that as lease deed has not been determined so far, defendant is entitled to retain the possession and his status is not that of tres-passer and he is in possession as lessee only. From the pleadings of the parties, issues were framed by learned trial Court on 13.8.2007. Evidence of respondents-plaintiffs was closed. Part evidence of defendant was also recorded when an application was filed by respondents-plaintiffs on 13.4.2010 under Order XV Rule 5 of the Code for striking off the defence of petitioner-defendant on the plea that he has not made payment of admitted rent. Application was contested by petitioner-defendant on the ground that provision of Order XV Rule 5 of the Code is not applicable to yearly tenancy and the same is applicable to only monthly tenancy. Further plea has been taken that as respondents-plaintiffs are not admitting him to be in possession as tenant and rather alleging that he is in illegal possession of the premises in dispute and, hence, it is contended that provision of Order XV Rule 5 of the Code is not applicable in this case. Learned trial Court vide impugned order accepted the application filed by respondents-plaintiffs and ordered for striking off the defence of petitioner-defendant on the plea that admitted rent @ `17,000/- per annum with interest was not paid. It has been vehemently contended by learned counsel for the petitioner-defendant that learned trial Court without giving an opportunity to petitioner-defendant to deposit the amount of outstanding lease money at the admitted rate of `17,000/- per annum with interest, ordered for striking off defence of petitioner-defendant. It is further contended that he is ready to deposit the said outstanding amount of lease money as per order of the Court. It is further contended that the provision of Order XV Rule 5 of the Civil Revision No.1017 of 2011 (O&M) -3- Code is not mandatory and the same is directory and hence, learned trial Court committed illegality in striking off the defence of petitioner-defendant without affording him an opportunity to deposit the amount of outstanding lease money. On the other hand, it has been contended by learned counsel for the respondents-plaintiffs that application filed by respondents-plaintiffs was contested by petitioner-defendant and that amount of outstanding lease money was not deposited even after notice of the application and, hence, it is contended that it cannot be said that no opportunity was given to petitioner-defendant to deposit the amount of outstanding lease money. It is pertinent to reproduce Order XV Rule 5 of the Code, which reads as under:- 5. Striking off defence on failure to deposit admitted rent -(I) 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 defendants 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 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 Civil Revision No.1017 of 2011 (O&M) -4- 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 other deductions 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 on any account, the court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.” In the present case though the suit was filed on 24.12.2003, however, the application under Order XV Rule 5 of the Code was filed by respondents-plaintiffs on 13.4.2010, i.e., after about a period of 6-1/2 years. Admitted facts are that no order was passed by learned trial Court directing petitioner-defendant to pay the outstanding amount of the lease money, after determining the amount payable. Even after filing of the application by respondents-plaintiffs, no opportunity was given to petitioner-defendant to deposit the outstanding amount of lease money. Learned counsel for the petitioner-defendant has offered to deposit the amount of outstanding lease money, as demanded by respondents-plaintiffs. Civil Revision No.1017 of 2011 (O&M) -5- Hon'ble Apex Court in Pt.Rishikesh and another v. Smt.Salma Begum, 1995(2) RCR (Rent) 505 : 1995(3) RRR 429: 1995(4) SCC 718: 1995(4) JT 401: 1995(3) Scale 354: 1995(3) SCR 1062, while upholding the validity of Order XV Rule 5 of the Code observed as under:- “23. The contention that s.20(4) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, provides procedure for payment of the arrears "on the first date of hearing of the suit" and if the tenant deposited the arrears, the Court has been given power to relieve the tenant against the liability for eviction on that ground and Order 15 Rule 5 provides discriminatory procedure offending Article 14 needs no close scrutiny. The two procedures are distinct and separate. The former gives opportunity to a tenant to make amends to his conduct of default and to avail the benefit of avoiding decree for eviction under the Rent Control Act. The jurisdiction of the Small Causes Court in that behalf was expressly taken out. The further contention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in not depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to contest the suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is untenable. As stated earlier the bonafide mistake on the part of the tenant in depositing the rent was given benefit of the discretionary relief may be granted by the Court considering from the previous conduct of the tenant and the mitigating circumstances, if any. Therefore, they are treated as a class. The dispute of tenancy and right to adjudication thereon also stands as a class. The tenant in default at a suit in the court of Small Causes is given right to contest the suit subject to his paying the admitted rent. It is a condition precedent. All those tenants are treated as a class. There is no invidious discrimination in that class. All are treated alike. There exists Civil Revision No.1017 of 2011 (O&M) -6- discernible differentia between two classes. The only class of tenants who commit default in payment of admitted rent after an order has been passed by the court, alone are disabled to contest the suit by striking of defence due to his recalcitrant attitude in committing further default in payment of the rent. The nexus in pregnant with legislative wisdom to protect the landlord from hardship. Order 15 Rule 5 gives a right to the plaintiff to make an application to this Court. The Court after considering the respective contentions and circumstances would pass an order directing the tenant to continue to pay the admitted rent as a condition to contest the suit. On his committing default, the defence will be struck off. The classification is based on intelligible differantia. The procedure, therefore, is consistent with the just and fair procedure to mitigate the hardship to the landlord and to prevent unfair advantage of delaying the disposal of the suit by the tenant. The procedure, therefore, is neither discriminatory nor arbitrary nor capricious but one which is judicious.” Hence, in view of decision of Hon'ble Apex Court in the aforementioned judgment, learned trial Court should have passed an order directing petitioner-defendant to pay the outstanding amount of lease money and continuing to pay the admitted lease money, as a condition to contest the suit and on his committing default, the defence was to be struck off. However, in the present case, learned trial Court without giving any opportunity to petitioner-defendant to deposit the outstanding amount of lease money at the admitted rate ordered for striking off his defence. In view of these facts, I am of the view that learned trial Court has committed an illegality and material irregularity in passing the impugned order, warranting interference by this Court. Hence, the present revision petition is accepted. Impugned order is set aside. Learned trial Court is directed to grant one opportunity to petitioner-defendant to pay the outstanding amount of lease money alongwith interest and then to proceed further with the suit, as per law. However, it is made clear that nothing observed herein shall be Civil Revision No.1017 of 2011 (O&M) -7- construed to have any bearing on the decision of the case on merit by learned trial Court. 19.4.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.