# Amit Sharma Revisionist v. Smt. Shiksha

- **Citation:** (2023) 5 ILRA 1087
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** S.C.C. Revision No. 19 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-sharma-revisionist-v-smt-shiksha-50147
- **Pages:** 5

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order 15 - Rule 5 & (5(1), - UP Urban
Buildings Regulation of Letting, Rent and
Eviction Act, - Section 30 - Rent Agreement -
between
revisionist-defendant
and
plaintiffrespondent - Suit - Decreed - order, challenged by
revisionist - defendant on the ground that, plaintiffopposite party has filed an application under O. 15
R. 5 to strike of revisionist-defendant, which was
duly replied - but, while passing order trial court
not considered properly - court finds that, so far
fact of the case is concern, it relates to nondeposit of monthly rent is undisputed - revisionistdefendant had no option, but to deposit rent on
month to month basis after initiation of the suit
proceeding and after first date of hearing of case -
held, once it is undisputed that rent has not been
deposited before the court concerned there is no
provision in law to grant any relief, but the only
option is to strike off the defence as provided in O.
XV R. 5 of CPC - no illegality & infirmity in the
impugned order, found - accordingly, revision lacks
merit and is dismissed.

Revision Dismissed. (E-11)

List of Cases cited:

## Text

5 All. Amit Sharma Vs. Smt. Shiksha
1087
(2023) 5 ILRA 1087
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 19 of 2023

Amit Sharma ...Revisionist
Versus
Smt. Shiksha ...Respondent

Counsel for the Revisionist:
Sri Babban Prasad Dwivedi, Sri Hriday Narayan
Pandey

Counsel for the Respondent:
Sri Ashish Kumar Singh

Civil Law - Civil Procedure Code, 1908 -
Order 15 - Rule 5 & (5(1), - UP Urban
Buildings Regulation of Letting, Rent and
Eviction Act, - Section 30 - Rent Agreement -
between
revisionist-defendant
and
plaintiffrespondent - Suit - Decreed - order, challenged by
revisionist - defendant on the ground that, plaintiffopposite party has filed an application under O. 15
R. 5 to strike of revisionist-defendant, which was
duly replied - but, while passing order trial court
not considered properly - court finds that, so far
fact of the case is concern, it relates to nondeposit of monthly rent is undisputed - revisionistdefendant had no option, but to deposit rent on
month to month basis after initiation of the suit
proceeding and after first date of hearing of case -
held, once it is undisputed that rent has not been
deposited before the court concerned there is no
provision in law to grant any relief, but the only
option is to strike off the defence as provided in O.
XV R. 5 of CPC - no illegality & infirmity in the
impugned order, found - accordingly, revision lacks
merit and is dismissed.

Revision Dismissed. (E-11)

List of Cases cited:

1. Radhe Shyam Chaurasiya & anr. Vs Smt.
Babita, 2022 ADJ 272,
2. Asha Rani Gupta Vs Sri Vineet Kumar, (2022)
0 Supreme (SC) 594

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Heard learned counsel for the
revisionist and Sri Ashish Kumar Singh,
learned counsel for the opposite party.

3. Present Revision has been filed
challenging the order dated 20.01.2023 as
well as Decree dated 25.01.2023, passed by
the Additional District & Session Judge,
Ghaziabad in Suit No. 42 of 2016.

4. Learned counsel for the revisionistdefendant submitted that Suit No. 42 of
2016 was filed by the plaintiff-opposite
party. He next submitted that plaintiffopposite party has filed application dated
09.02.2022 under Order XV, Rule 5, C.P.C.
to strike off the defence of the revisionistdefendant, which is dully replied by
revisionist-defendant
by
reply
dated
18.04.2022. He next submitted that, while
passing the impugned order dated 20.01.2023
reply of revisionist-defendant has not been
properly considered. In the reply dated
18.04.2022, revisionist-defendant has stated
that filing of Suit No. 42 of 2016 was itself
defective, as it has been filed before 30 days
from the date of notice sent by the counsel for
the plaintiff. He also submitted that as the
rent agreement was extended for 11 months
w.e.f. 01.02.2016 and he had paid the entire
dues, therefore, nothing was due on the
petitioner-defendant
to
pay,
therefore,
impugned order is bad and is liable to be set
aside.

5. Learned counsel for the revisionistdefendant submitted that Order XV Rule 5
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
is having two parts, first part says that on or
before the first hearing of suit, revisionistdefendant was required to deposit the entire
admitted amount and, thereafter, rent on
month to month basis. In the present case,
the application dated 09.02.2022 has been
allowed on the ground that revisionistdefendant has not paid a single penny on
month to month basis as rent after first
hearing of the suit initiated in 2016, which
has also not been denied in the reply dated
18.04.2022 filed by revisionist-defendant,
rather this has been accepted.

6. He next submitted that application
of revisionist-defendant was allowed only
on the ground that he has not deposited any
rent after initiation of suit and after first
date of hearing. In support of his
contention,
learned
counsel
for
the
plaintiff-opposite party has placed reliance
on the judgment of this Court in the case of
Radhe Shyam Chaurasiya and Another
Vs. Smt. Babita: 2022 ADJ 272 and
judgment of Apex Court Asha Rani Gupta
Vs.
Sri
Vineet
Kumar:
(2022)
0
Supreme(SC) 594.

7. Being confronted by the court, even
before Bar, Sri Pandey, learned counsel for
the revisionist-defendant fairly accepted
that no rent has been deposited and
monthly rent has been deposited after
initiation of suit proceeding and after first
date of hearing of the case.

8. I have considered submissions made by
learned counsel for the parties and perused
the record as well as judgments so relied
upon. The fact of the case, so far it relates
to non deposit of monthly rent is
undisputed.

9. From the perusal of Order XV Rule
5, it is apparently clear that revisionistdefendant had no option, but to deposit rent
on month to month basis whether admitted
or not admitted by him.

10. This issue was before this Court in
the
matter
of
Radhe
Shyam
Chaurasiya(Supra) and this Court after
considering different judgments has held
that it is mandatory to deposit rent on
month to month basis before the court,
where the suit has been instituted. Relevant
paragraphs of the said judgment are quoted
hereinbelow:

"5. Striking of defence for failure to
deposit admitted rent, etc. 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 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 any default
in making the deposit of 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.

Explanation 1. The expression ''first
hearing' means the date for filing written
statement 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
5 All. Amit Sharma Vs. Smt. Shiksha
1089
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, paid to the lessor
acknowledged by the lessor in writing
signed by him and the amount, if any,
deposited in any Court under Section 30 of
the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972.

Explanation 3. (1) 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 no other
deduction except the taxes, if any, paid to a
local authority, in respect of the building on
lessor's account.

(2) Before making any order for
striking off defence, the 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."

The first part deals with the deposit of
the 'entire amount admitted by him to be
due' together with interest at or before the
first hearing of the suit. The second part
deals with the deposit of 'monthly amount
due' which has to be made throughout the
continuation of the suit. So far as any
amount deposited prior to institution of the
suit, may be adjusted against the arrears, if
any such application is filed. Whereas
second part is concerned, it is mandatory
requirement to deposit the rent before the
Court concerned, where the suit is
instituted. In the objection dated 2.2.2021
filed to the application under Order XV
Rule 5 of C.P.C as well as affidavit filed
before the Court, it is accepted by the
revisionist no.2 that no rent has been paid
by her before the Court concerned after
first hearing of the suit.

This Court in the matter of Maya Devi
(Supra) has taken specific view that in case
of denial of tenancy, he may not be required
to deposit the amount admitted to be due at
or before the first hearing of the suit but he
would still be required to deposit the
monthly amount due within a week.
Relevant paragraph of the said judgment is
being quoted hereinbelow:-

"In the aforesaid case it was held that
where the defendant denies the existence of
landlord and tenant relationship, he may
not be required to deposit the amount
admitted to be due at or before the first
hearing of the suit but he would still be
required to deposit the monthly amount due
within a week from the date of its accrual
throughout the continuation of the suit
because such deposit has to be made in
spite of the fact he admits any amount to be
due or not."

In the matter of Gaya Prasad (Supra),
Court has taken the view that rent is
required to be deposited in compliance of
provisions of Order XV Rule 5 of C.P.C.
Relevant paragraph of the said judgment is
being quoted hereinbelow:-

"Default in payment of rent is admitted
and stands proved on record inasmuch as
according to own case of the defendantpetitioner he has not paid rent after
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
04.08.1999. It is also not disputed that the
rent has not been deposited in compliance
to the provisions of Order XV Rule 5 C.P.C.
Consequently, his defense was also struck
off. The order striking off the defense,
therefore, also does not suffer from any
manifest error of law."

In the matter of State Bank of India,
City Branch Pandey Hata (Supra), Court
has again taken the same view that rent is
not deposited by the tenant, therefore, there
is no illegality in striking off the defence.
Relevant paragraph of the said judgment is
being quoted hereinbelow:-

"Considering the admitted facts of the
case that the defendants-petitioners have
neither disputed the arrears of rent on the
first date of hearing nor paid monthly rent
and as such protection of order XV Rule 5
C.P.C.
was
not
available
to
him.
Consequently, the court below has not
committed any error of law in allowing the
application 37Ga and striking off the
defence
of
the
defendantspetitioners/tenants. So far as the rejection
of application 50Ga is concerned, I find
that as per statement made by learned
counsel
for
the
plaintiffs-respondents
before this Court and not disputed by
learned
counsel
for
the
defendantspetitioners, the date 8.2.2018 is fixed before
the court below for arguments. Therefore, I
find it appropriate to request the court
below to decide the aforesaid SCC Suit
No.05 of 2016 (Ram Niwas Verma and
others Vs. State Bank of India and another)
in accordance with law, expeditiously,
preferably within eight weeks from the date
of presentation of a certified copy of this
order, without granting any unnecessary
adjournment to either of the parties."

"11. From perusal of Order XV Rule 5
of C.P.C., it is apparently clear that any
deposit made prior to first appearance in
SCC suit may be adjusted for arrears of
rent due upon filing an application, but
after institution of suit, it is mandatory
requirement to deposit rent before the
Court, where the suit is instituted. Once it
is not disputed that rent has not been
deposited before the Court concerned,
where the suit is instituted, there is no
option before the Court to struck off the
defence as provided under the provisions of
Order XV Rule 5 of C.P.C.

12. So far as present case is
concerned, there is admission on the part of
revisionist no.2 that she has paid rent from
time to time and she is tenant. She also
admitted that she has never paid rent
before the Court concerned after first
hearing of the suit as required under Order
5 Rule 15 of C.P.C.
13. Therefore, in light of facts of the case as
well as law laid down by this Court from
time to time, there is no illegality or
irregularity and Court has rightly struck off
the defence of revisionists. Revision lacks
merit and is, accordingly, dismissed. No
order as to costs."

11. Again the Apex Court has
considered the same issue in the matter of
Asha Rani Gupta Vs. Sri Vineet Kumar:
(2022) 0 Supreme(SC) 594 and has taken
the very firm view that once the rent on
month to month basis has not been
deposited, Court has no power of discretion
to exercise its power in favour of
defendant-respondent. Relevant paragraphs
of
the
said
judgment
are
quoted
hereinbelow:

"13. In a suit of the present nature,
where the defendant otherwise has not
denied his status as being the lessee, it was
rather
imperative
for
him
to
have
scrupulously
complied
with
the
requirements of law and to have deposited
the arrears of rent due together with
5 All. Kuldeep Agarwal Vs. The State of U.P. & Ors.
1091
interest on or before the first date of
hearing and in any case, as per the second
part of sub-rule(1) of Rule 5 of Order XV
CPC, he was under the specific obligation
to make regular deposit of the monthly
amount due, whether he was admitting any
such dues or not.
16.
In
the
totality
of
facts
and
circumstances, we are clearly of the view
that there was absolutely no reason for the
High Court to have interfered in the present
case, where the Trial Court had struck off
the defence after finding that there was no
evidence on record to show the payment or
deposit of rent in favour of the plaintiff by
the defendantrespondent. The Revisional
Court had also approved the order of the
Trial Court on relevant considerations.
Even the High Court did not find the pleas
taken by the defendant-respondent to be of
bonafide
character,
particularly
when
survey number of the shop let out to him
was clearly stated in the sale deed executed
in favour of the plaintiff. We find it rather
intriguing that, despite having not found
any cogent reason for which discretion
under Rule 5 of Order XV CPC could have
been exercised in favour of the defendantrespondent, the High Court, in the last line
of paragraph 45 of the order impugned,
abruptly stated its conclusion that: 'yet the
defendant/tenant
deserves
some
indulgence'.

12. Undisputedly, so far as the present
case is concerned, facts are again the same.
There is no dispute on the point that after
first hearing of the case, petitionerdefendant has not deposited any amount as
rent, required to be paid on month to month
basis. Once, it is undisputed that rent has
not been deposited before the court
concerned there is no provision in law to
grant any relief, but the only option is to
strike off the defence as provided in Order
XV Rule 5 of CPC.

13. In view of facts and law laid
down by the Court, I found no illegality
& infirmity in the impugned orders
dated
20.01.2023
&
25.01.2023.
Accordingly, revision lacks merit and is
dismissed.

14. No order as to costs.
----------
(2023) 5 ILRA 1091
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ Tax No. 1039 of 2021

Kuldeep Agarwal ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Sharma, Sri Neeraj Sharma

Counsel for the Respondents:
C.S.C.

A. Tax Law - Cancellation of license -
Search and Seizure - U.P. Excise Act:
Section
74
-
Uttar
Pradesh
Excise
Settlement of Licenses for Retail Sale of
Foreign
Liquor
(Excluding
Beer)
(Seventeenth Amendment) Rules, 2019-
Rule 18(1); The Uttar Pradesh Excise
(Settlement of Licenses for Retail Sale of
Beer) Rules, 2001 - It is well settled that
the show-cause notice is issued to put the
assessee/licensee on guard and to enable
him to file a reply to the allegations
contained in the show-cause notice and
infractions, which are alleged against the
licensee in the said show-cause notice.
(Para 28)