# Anoop Mehrishi & Anr. Revisionists v. Ashok Kumar Mishra

- **Citation:** (2023) 3 ILRA 1181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-16
- **Case number:** S.C.C. Revision No. 64 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-mehrishi-anr-revisionists-v-ashok-kumar-mishra-49904
- **Pages:** 8

## Headnote

Civil Law -Provincial Small Cause Courts
Act, 1887 - Section 25 - Revision-
Landlord filed SCC suit- eviction of tenants
from the rented shop- Application under
Order XV Rule 5 CPC by landlord- tenant's
defence struck off by impugned order-
plea
of
holding
possession
in
part
performance of an agreement to sell taken
by tenant- suit for specific performance
also pending between the parties- no
monthly deposit due as mandated under
Order XV Rule 5(1) made- payment made
towards consideration in an agreement to
sell not made in the capacity of a tenant-
tenant's defence rightly struck off- Trial
court's order upheld - Revision dismissed
(Para - 10, 11, and 12)

HELD: A bare reading of the provisions of Rule
5 of Order XV make it clear that there are two
parts of the tenant's obligation to deposit rent in
Court in a case where the landlord sues the
tenant for eviction, after determination of his
lease, as also for recovery of rent and damages
for use and occupation. The first part requires
the tenant to deposit at or before the first
hearing of the suit, the entire amount on
account of rent, damage etc. admitted by him to
be due together with interest thereon @ 9% per
annum. The second part requires the tenant to
deposit throughout the pendency of the suit, the
monthly amount of rent within a week of its
accrual, whether he admits it to be due or not.
The Rule further provides that non-compliance
of either of the two parts of sub-Rule (1) of Rule
5 of Order XV of the Code entitles the Court to
strike off the tenant's defence. There is a
distinction between the expression 'entire
amount admitted by him to be due' in the first
part of sub-Rule (1) of Rule 5 of Order XV of the
Code and the expression 'monthly amount due',
occurring in the second part of sub-Rule (1) of
Rule 5 of Order XV. (Para 10)

So far as deposit to be made on the first date of
hearing is concerned, there are three kinds of
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustments that could be made. The first is of
any sum of money paid by the tenant in taxes to
a local authority in respect of the building on the
lessor's account. The second is any amount paid
to the lessor and acknowledged by him in
writing and signed by him. The third class of
money that can be adjusted is that deposited by
the tenant in Court under Section 30 of U.P. Act
No. 13 of 1972 (for short, 'the Act of 1972'). By
contrast, in case of monthly deposits to be
made, the only allowance that the Rule permits
is with regard to taxes payable to the local
authority in respect of the building on the
landlord's account. No other sum of money can
be adjusted against the tenant's obligation to
deposit the monthly rent or damage for use and
occupation during the course of the suit. (Para
11)

Revision dismissed. (E-14)

List of Cases cited:

## Text

3 All. Anoop Mehrishi & Anr. Vs. Ashok Kumar Mishra
1181
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

18. The punishment under Section
498A IPC and 3/4 D.P. Act are concerned
the accused is in jail for more than 12 years
and hence the said punishment and default
punishment have also completed, therefore,
we need not observe to them. As far as
Section 304B IPC is concerned, the
punishment would be substituted from life
imprisonment to imprisonment already
undergone.

19. Learned Additional Sessions
Judge has not imposed any fine or any
default sentence under Section 304 B IPC.
We also do not propose the same. We
concur with it and substitute the sentence
that already undergone. The accusedappellant be set free forthwith, if not
wanted in any other case.

20. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Trial Court forthwith.
----------
(2023) 3 ILRA 1181
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2023
BEFORE

THE HON'BLE J.J. MUNIR, J.

S.C.C. Revision No. 64 of 2022

Anoop Mehrishi & Anr. ...Revisionists
Versus
Ashok Kumar Mishra ...Respondent

Counsel for the Revisionists:
Sri Rahul Mishra, Sri Rishi Upadhyay

Counsel for the Respondent:
Ms. Vaishali Sahu, Sri Atul Dayal (Sr.
Advocate)

Civil Law -Provincial Small Cause Courts
Act, 1887 - Section 25 - Revision-
Landlord filed SCC suit- eviction of tenants
from the rented shop- Application under
Order XV Rule 5 CPC by landlord- tenant's
defence struck off by impugned order-
plea
of
holding
possession
in
part
performance of an agreement to sell taken
by tenant- suit for specific performance
also pending between the parties- no
monthly deposit due as mandated under
Order XV Rule 5(1) made- payment made
towards consideration in an agreement to
sell not made in the capacity of a tenant-
tenant's defence rightly struck off- Trial
court's order upheld - Revision dismissed
(Para - 10, 11, and 12)

HELD: A bare reading of the provisions of Rule
5 of Order XV make it clear that there are two
parts of the tenant's obligation to deposit rent in
Court in a case where the landlord sues the
tenant for eviction, after determination of his
lease, as also for recovery of rent and damages
for use and occupation. The first part requires
the tenant to deposit at or before the first
hearing of the suit, the entire amount on
account of rent, damage etc. admitted by him to
be due together with interest thereon @ 9% per
annum. The second part requires the tenant to
deposit throughout the pendency of the suit, the
monthly amount of rent within a week of its
accrual, whether he admits it to be due or not.
The Rule further provides that non-compliance
of either of the two parts of sub-Rule (1) of Rule
5 of Order XV of the Code entitles the Court to
strike off the tenant's defence. There is a
distinction between the expression 'entire
amount admitted by him to be due' in the first
part of sub-Rule (1) of Rule 5 of Order XV of the
Code and the expression 'monthly amount due',
occurring in the second part of sub-Rule (1) of
Rule 5 of Order XV. (Para 10)

So far as deposit to be made on the first date of
hearing is concerned, there are three kinds of
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
adjustments that could be made. The first is of
any sum of money paid by the tenant in taxes to
a local authority in respect of the building on the
lessor's account. The second is any amount paid
to the lessor and acknowledged by him in
writing and signed by him. The third class of
money that can be adjusted is that deposited by
the tenant in Court under Section 30 of U.P. Act
No. 13 of 1972 (for short, 'the Act of 1972'). By
contrast, in case of monthly deposits to be
made, the only allowance that the Rule permits
is with regard to taxes payable to the local
authority in respect of the building on the
landlord's account. No other sum of money can
be adjusted against the tenant's obligation to
deposit the monthly rent or damage for use and
occupation during the course of the suit. (Para
11)

Revision dismissed. (E-14)

List of Cases cited:

1. Haider Abbas Vs Additional District Judge &
ors., 2006 (1) ARC 341

2. Krishna Kumar Gupta Vs Manoj Kumar Sahu,
(2017) 4 All LJ 127

(Delivered by Hon'ble J.J. Munir, J.)

1. This revision under Section 25 of
the Provincial Small Cause Courts Act,
1887 is directed against an order of Mr.
Devashish, Additional District Judge, Court
No.10, Varanasi, sitting as the Judge, Small
Cause Court dated 05.04.2022, striking off
the tenants' defence under Order XV Rule 5
of the Civil Procedure Code, 1908 (for
short, ''the Code').

2. The plaintiff-respondent, Ashok
Kumar Mishra, who shall hereinafter be
referred to as ''the landlord', instituted
S.C.C. Suit No. 5 of 2022 in the Court of
the District Judge, Varanasi (sitting as the
Judge, Small Cause Court) against the
defendant-revisionists
(for
short,
''the
tenants'), seeking a decree for eviction of
the tenants from the shop detailed at the
foot of the plaint. In addition, a decree for
recovery of arrears of rent to the tune of
Rs.2,69,237/- for the period 02.04.2017 to
12.03.2020 was sought. A further sum of
Rs. 32,013/- was claimed as mesne profits
for the period 13.03.2020 to 08.07.2020.
These claims apart mesne profits at the rate
of Rs.8545/- per month were claimed
pendente lite and future till delivery of
actual physical possession to the landlord.
The aforesaid suit was instituted by the
landlord, seeking the tenants' eviction from
a shop admeasuring 350 square feet, situate
in premises No. B-30/2A-3, Prafull Nagar
Colony, Lanka, District Varanasi.

3. The tenants have put in their written
statement dated 23.03.2021, denying the
plaint allegations. In substance, the defence
taken by the tenants is that though they
entered the premises as tenants on a rent of
Rs.5000/- per month and paid a sum of
Rs.3,00,000/- as security in terms of a rent
agreement dated 23.12.2008, but during the
currency of the tenancy, parties have
entered into a registered agreement to sell
dated 22.06.2011, where the landlord has
covenanted to sell the demised shop to the
tenants for a total sale consideration of
Rs.17,50,000/-. It is also the tenants'
defence that a sum of Rs.7,50,000/- has
been accepted as earnest. It is also pleaded
that the tenants have been delivered
possession in part performance of the
registered agreement to sell. The landlord
has of his own given up his right to receive
rent after the month of January, 2011, when
he received it last.

4. Pending the suit for eviction, the
landlord moved an application under Order
XV Rule 5 of the Code with a prayer that
the tenants' defence be struck off for noncompliance of the aforesaid mandatory
3 All. Anoop Mehrishi & Anr. Vs. Ashok Kumar Mishra
1183
provision of the law. The application was
answered by the tenants through objections
saying
that
there
was
an
earlier
unregistered agreement dated 22.02.2011,
under which the landlord agreed to transfer
the demised shop on the contracted price of
Rs.17,50,000/-. It was also said by the
tenants that a suit for specific performance
being O.S. No. 1174 of 2014, Sarita
Mehrishi vs. Ashok Kumar has been
instituted, which is pending before the
Court of competent jurisdiction. It was also
raised as a defence to the plea for striking
off the tenants' defence that the tenants
were in possession of the demised shop in
part performance of the agreement to sell
and not as tenants qua the said premises.

5. The Trial Court did not accept any
of the contentions put forth by the tenants
and struck off their defence. The Trial
Court was of opinion that even if some
advance was paid towards part price of a
contracted sale, no adjustment could be
made with regard to any advance so far as
rent required to be deposited month by
month during the pendency of the suit was
concerned.

6. Heard Mr. Rahul Mishra, learned
Counsel for the tenants in support of the
motion to admit this revision to hearing and
Mr. Atul Dayal, learned Senior Advocate
assisted by Ms. Vaishali Sahu, learned
Counsel appearing on behalf of the
landlord.

7. It is not in dispute that the tenants
entered the demised shop as such on an
eleven month lease paying a security in the
sum of Rs.3,00,000/-. No doubt, there
appears
to
be
first
an
unregistered
agreement to sell dated 22.02.2011 and
then
a
registered
agreement
dated
22.06.2011 executed by the landlord in
favour of the tenants, relating to the
demised shop. The registered agreement
dated 22.06.2011 mentions the various
sums of money received by the landlord
through bank instruments and in cash for
receipts executed.

8. The registered agreement to sell
settles the transaction for sale of the
demised shop for a sale consideration of
Rs.17,50,000/-. The agreement records the
fact that a sum of Rs.7,50,000/- out of the
agreed sale consideration has been received
by the landlord from the tenants from time
to time as per details mentioned in the
document. There is, however, nothing in
the registered agreement to sell that may
show delivery of possession to the tenants
in part performance, so as to alter character
of the tenants' possession from tenancy
possession
into
one
held
in
part
performance of the registered agreement to
sell. Rather, in Paragraph No. 5 of the
registered agreement, there is a recital to
the following effect:

"5. यह शक हम प्रथम पक्ष ने कुल मजमून सट्टा
इकरार-नामा शबला कब्जा हाजा को खुब अच्छी तरह से पढ़ व
पढ़वाकर सुन व समझ कर उसके असरातो से वखूबी वाशकि होकर
यह चन्द्ि कलमा बतरीक सट्टा इकरारनामा शबला कब्जा मोआशहिा
बय बहक शद्वतीय पक्ष तहरीर कर शिया शक सनि रहे व वक्त जरूरत
पर काम आवे।"
(emphasis by Court)

9. The aforesaid recital shows that the
agreement to sell expressly made it one
which did not deliver possession to the
tenants in part performance. Now, in the
present suit, it is not for this Court to go
into the rights of parties to seek specific
performance of the registered agreement.
The purpose of looking into this agreement
is to find out as to what was the nature of
the tenants' possession in the demised shop.
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
The terms of the registered agreement
unmistakably point to the fact that the
tenants continue to occupy the demised
shop in their character as tenants and do not
hold possession in part performance of the
registered agreement, delivered to them by
the landlord, as they claim. The provisions
of Order XV Rule 5 CPC as amended in
their application to the State of Uttar
Pradesh vide U.P. Act No. 57 of 1976 and
Notification dated 10th February, 1981,
read:

"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 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 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.

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, 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 an 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."

10. A bare reading of the provisions of
Rule 5 of Order XV make it clear that there
are two parts of the tenant's obligation to
deposit rent in Court in a case where the
3 All. Anoop Mehrishi & Anr. Vs. Ashok Kumar Mishra
1185
landlord sues the tenant for eviction, after
determination of his lease, as also for
recovery of rent and damages for use and
occupation. The first part requires the
tenant to deposit at or before the first
hearing of the suit, the entire amount on
account of rent, damage etc. admitted by
him to be due together with interest thereon
@ 9% per annum. The second part requires
the tenant to deposit throughout the
pendency of the suit, the monthly amount
of rent within a week of its accrual,
whether he admits it to be due or not. The
Rule further provides that non-compliance
of either of the two parts of sub-Rule (1) of
Rule 5 of Order XV of the Code entitles the
Court to strike off the tenant's defence.
There
is
a
distinction
between
the
expression 'entire amount admitted by him
to be due' in the first part of sub-Rule (1) of
Rule 5 of Order XV of the Code and the
expression 'monthly amount due', occurring
in the second part of sub-Rule (1) of Rule 5
of Order XV.

11. So far as deposit to be made on the
first date of hearing is concerned, there are
three kinds of adjustments that could be
made. The first is of any sum of money
paid by the tenant in taxes to a local
authority in respect of the building on the
lessor's account. The second is any amount
paid to the lessor and acknowledged by him
in writing and signed by him. The third
class of money that can be adjusted is that
deposited by the tenant in Court under
Section 30 of U.P. Act No. 13 of 1972 (for
short, 'the Act of 1972'). By contrast, in
case of monthly deposits to be made, the
only allowance that the Rule permits is
with regard to taxes payable to the local
authority in respect of the building on the
landlord's account. No other sum of money
can be adjusted against the tenant's
obligation to deposit the monthly rent or
damage for use and occupation during the
course of the suit.

12. A Division Bench of this Court in
Haider Abbas v. Additional District
Judge and others, 2006 (1) ARC 341
considered the obligation of the tenant
under the two parts of sub-Rule (1) of Rule
5 of Order XV of the Code and the issue
whether adjustment of rent deposited under
Section 30 of the Act of 1972 could be
sought by the tenant. It has been held in
Haider Abbas (supra), thus:

"13. On a careful analysis of the
provisions of Order XV, Rule 5, C.P.C. we
find that it is divided in two parts. 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.

14. Explanation 2 to Order XV,
Rule 5(1), C.P.C. stipulates that "entire
amount admitted by him to be due" means
the entire gross amount, whether as rent or
compensation for use and occupation after
making no other deduction except the
taxes, if any, paid to the local authority in
respect of the building on lessor's account
and the amount, if any, deposited in any
Court under section 30 of the Act. The
expression "monthly amount due" has been
defined in Explanation 3 to Rule 5(1) of
Order XV, Rule 5, C.P.C. to mean 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.

15. What has to be noticed in
Order XV, Rule 5, C.P.C. is that the
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
Legislature
while
defining
"monthly
amount due" which has to be deposited
during the continuation of the suit has
deliberately excluded the deduction of any
amount deposited under section 30 of the
Act. We are, therefore, faced with a
situation where the same Rule defines
"entire amount admitted by him to be due"
and "monthly income due" occurring in the
first part and second part respectively of the
Rules and while the former phrase
stipulates the deduction of the amount
deposited under section 30 of the Act, the
second part omits to mention such a
deduction. It has, therefore, to be inferred
that the Legislature has, in its wisdom,
deliberately made a provision for deduction
of the deposit of the amount under section
30 of the Act only in respect of the amount
to be deposited at or before the first date of
hearing and not in respect of the monthly
amount to be deposited throughout the
continuation of the suit. This, coupled with
the fact that both Explanation 2 and
Explanation 3, referred to above provide
"after
making
no
other
deduction
except........." clearly leads us to no other
conclusion
except
that
only
such
deductions are to be made which have been
specifically
provided.
The
"monthly
amount due" has to be construed in the
manner provided for in Explanation 3 to
Rule 5(1) of Order XV, C.P.C. and in no
other manner.

37. We, therefore, upon an
analysis of the provisions of Rule 5(1) of
Order
XV,
C.P.C.,
hold
that
while
depositing the amount at or before the first
hearing of the suit, the tenant can deduct
the amount deposited under section 30 of
the Act but the deposits of the monthly
amount
thereafter
throughout
the
continuation of the suit must be made in the
Court where the suit is filed for eviction
and recovery of rent or compensation for
use and occupation and the amount, if any,
deposited under section 30 of the Act
cannot be deducted."

13. The question was examined again
by this Court more recently in Krishna
Kumar Gupta v. Manoj Kumar Sahu,
(2017) 4 All LJ 127, a decision to which
the Revisional Court has also alluded to. In
Krishna Kumar Gupta (supra), it has
been held:

"11. The difference between the
two categories discussed herein above,
apart from the stage at which they apply, is
two fold : (a) in the first category the
defendant is required to make deposit of the
admitted dues whereas in the second
category, which relates to monthly deposits,
whether he admits it to be due or not, the
deposit has to be made on monthly basis, at
the admitted rate of rent, throughout the
continuance of the suit; and (b) in the first
category the tenant can seek adjustment of
the amount deposited under section 30 of
UP Act No. 13 of 1972 as well as the
amount, if any, paid to the lessor
acknowledged by the lessor in writing
signed by him, whereas in the second
category, which relates to monthly deposits,
no such adjustment is permissible as would
be clear from the difference between
Explanation and Explanation 3.

12. One of the common features
in the two categories, which is reflected by
the use of words "admitted rate of rent" in
both Explanation and Explanation of Order
XV, Rule 5, C.P.C., is that there has to be
an admitted jural relationship of lessor and
lessee (landlord and tenant) between the
plaintiff and defendant fortiori, if the
relationship of landlord and tenant or lessor
and lessee is not admitted by the defendant
between
the
plaintiff
and
him,
the
provisions of Order XV, Rule 5, C.P.C.
3 All. Anoop Mehrishi & Anr. Vs. Ashok Kumar Mishra
1187
would not be applicable. In the case of
Chandan Singh v. Shyam Sunder Agrawal,
(2006) 64 ALR 673, this Court while
dealing with the object of enacting the
provisions of Order XV, Rule 5, C.P.C.,
observed as follows:

"The idea of enactment of Order
XV, Rule 5, C.P.C. is to compel the tenant
to pay the rent at least at the rate he was
paying
earlier
to
the
landlord
notwithstanding the pendency of the
litigation. Order XV, Rule 5, C.P.C. was
enacted with view that the landlord may not
have to wait till the final decision of the
case to recover his rent. He should at least
get the rent at the rate he was getting before
the start of litigation and tenant may not
enjoy the tenanted property without paying
rent. The purport and object of Order XV,
Rule 5, C.P.C. is to see that tenant does not
get undue advantage by withholding the
payment of rent or pay it at lesser rate than
the one at which he was paying earlier on
some lame excuse. Looking to the object
which Order XV, Rule 5, C.P.C. seeks to
achieve, literal interpretation to the word
"admitted" would not serve the purpose and
this Court is of the view that purposive
approach of interpretation should be
resorted to."

14. Here, this Court finds that
whatever sum of money was paid by the
tenants to the landlord, was in respect of a
completely different transaction relating to
sale of the demised shop. It had nothing to
do with the contract of tenancy. Even if it
be assumed that the earnest of Rs. 7.50 lacs
recorded in the agreement to sell was to be
adjusted against the arrears of rent, it could
be adjusted against the tenants' obligation
to deposit the outstandings on the first date
of hearing only, if the tenants produced an
acknowledgment in writing from the
landlord accepting appropriation of the
money received in respect of a different
transaction towards the entire amount
admitted by the tenants to be due, which
the tenants were obliged to deposit on the
first date of hearing.

15. So far as monthly deposit of rent
within seven days of accrual is concerned,
there could be no adjustment of any
advance. Quite apart, it has figured in the
order impugned that the tenants are
pursuing their suit for specific performance
against the landlord being Suit No. 1174 of
2014, which would hardly make allowance
for any kind of adjustment, even against the
entire amount admitted by the tenants to be
due on account of rent etc. that had to be
deposited on or before the first date of
hearing. The Trial Court has opined that
since there is no deposit made during the
pendency of the suit on a monthly basis,
there could be no escape from the
consequences or the rigour of the Rule
carried in sub-Rule (1) of Rule 5 of Order
XV.

16. So far as the Court's discretion in
accepting the tenants' representation, if
made within ten days of the first date of
hearing or the expiry of the week, as regard
the monthly deposit of rent, the period of
time would long be gone under both heads
of liability for the Court to condone.
Therefore, the action of the Court in
holding the tenants' defence liable to be
struck off, if not under the first part,
decidedly under the second part, cannot be
faulted.

17. Here, this Court must add that the
much emphasized transformation of the
character of the tenants' possession from
that of a tenant into one of a man holding it
in part performance of the registered
agreement, has been noticed and rejected
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinbefore, with reference to the recitals
carried in the registered agreement to sell.
Any explanation, therefore, based upon
ceasure of the tenants' liability to pay rent
or to comply with the terms of Order XV
Rule 5 of the Code cannot be accepted.

18. In the considered opinion of this
Court, there is no force in this revision. It
fails and is, accordingly, dismissed.
----------
(2023) 3 ILRA 1188
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1109 of 1988

Khandar Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Shashank Shekhar, Sri Deepak Rana

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323/149, 324/149 & 325/149
- Appeal Against conviction under of IPC-
appellants inflicted injuries by lathi, bulli,
tabal
and
garasa-
Section
324
IPC-
Voluntary
causing
hurt
by
dangerous
weapons or means- Fracture of bone- not
necessary that bone should be cut through
and through- cutting, splintering, rupture or
fissure in bone is sufficient- injury inflicted
by the appellants on the victims proved-
conviction by trial court upheld. (Paras 19,
20, 21, 22, 32, 40)

HELD: In Hori Lal & anr. Vs St. of U.P., (1970) 1
SCC 8 the Apex Court has held that for the
application of clause 7 of Section 325 it is not
necessary that a bone should be cut through
and through or that the crack must extend from
the outer to the inner surface or that there
should be displacement of any fragment of the
bone. If there is a brake by a cutting or
splintering of the bone or there is a rupture or
fissure in it, it would amount to fracture within
the meaning of Clause 7 of Section 320 I.P.C.
(Para22)

B. Benefit of Probation of Offenders Act,
1958-
Section
4-
Code
of
Criminal
Procedure- Section 360- 40 years since
the date of incident- appellants and
informant are living in peace together- no
criminal
history-
reformatory
and
correctional object of sentencing- trial and
appellate
courts
to
give
benefit
of
probation in fit cases- appellants released
on probation under supervision of the trial
court for one year- compensation of Rs.
5,000 awarded- Appeal partly allowed.
(Paras 36 to 39, 40and 41)

HELD:
These
statutory
provisions
very
emphatically lay down the reformatory and
correctional object of sentencing and obligates
the trial court as well as appellate courts to give
benefit of probation in fit cases as provided
under law. Unfortunately, this branch of law has
not been much 14 utilized by the courts. It
becomes more relevant and important in our
system of administration of justice where trial is
often concluded after a long time and by the
time decision assumes finality, the very purpose
of sentencing looses its efficacy as with the
passage of time the penological and social
priorities change and there remains no need to
inflict punishment of imprisonment, particularly
when the offence involved is not serious and
there is no criminal antecedent of the accused
persons. The facts and given circumstances in
each case, the nature of the crime, the manner
in which it was planned and committed, the
motive for commission of the crime, the conduct
of the accused, the nature of weapons used and
all other attending circumstances are relevant
facts which would enter into the area of
consideration. It is, therefore, the duty of every
court to award proper sentence having regard to
the nature of the offence and the manner in
which it was executed or committed. (Para 36)