# Bal Krishna v. Ramanand Dixit and another - **Citation:** (2001) 2 ILRA 253 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2001 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishna-v-ramanand-dixit-and-another-39881 - **Pages:** 5 ## Text 2All] Bal Krishna V. Ramanand Dixit and another 253 provisions it appears that were the joint family firm is carrying on business, the members of Joint Hindu Family shall also be deemed to be partners in the business. 11. Learned counsel for the appellants have also referred to the case of Gaya Din through L.R.s and others Versus Hanuman Prasad, 2001(92) R.D.79 decided by the Apex Court. It was observed in this case "that the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. Till then, it is an undivided interest. The view expressed in Mahabir Singh and other cases mentioned above, that the members were not the tenants of the holding because they had no interest in it, is, with respect, fallacious. In law, the members of the joint Hindu family together become the tenants of the holding. The coparcenary body as such and as an entity apart from its members, does not own property. The property does not vest in the co-parcenary but in its members though collectively." 12. I have considered the provision of law referred to by the learned counsel. However under these provisions the members of joint Hindu family does not become entitled to file objections under section 47 C.P.C. Section 47 C.P.C. is a special provision regarding objection in the execution by the parties to the suit. It can not be extended to the persons, who are not parties to the suit on the basis that they are also members of joint Hindu family. This provision can not be availed by them and the only option for them was to file a separate suit. 13. The objections against the execution were already filed by the other partners. Therefore, separate objections by the appellant of Second Appeal no.1238 of 1974 were not maintainable and were wrongly entertained. They are not entitled to file separate objection under section 47 C.P.C. not being parties to the suit. 14. In view of the above the objections by Shyam Sunder and others were wrongly entertained. Therefore, the objections were not maintainable. Therefore, the appeals preferred by them is also liable to be dismissed. Both the appeals are dismissed with costs. The stay orders, if any, are hereby vacated. 5(9,6,21$/ -85,6',&7,21 5(9,6,21$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( '6 6,1+$ - 7+( +21·%/( '6 6,1+$ - &LYLO 5HYLVLRQ 1R RI %DO .ULVKQD «$SSOLFDQW 9HUVXV 5DPDQDQG 'L[LW DQG DQRWKHU «2SSRVLWH 3DUWLHV &RXQVHO IRU WKH 5HYLVLRQLVW 6KUL %1 $JDUZDO &RXQVHO IRU WKH 5HVSRQGHQWV 6KUL 3UDNDVK *XSWD 6KUL 55 'XEH\ &RGH RI &LYLO SURFHGXUH 2UGHU U 6WULNH RI GHIHQFH FODLP RI WKH 7HQDQW IRU DGMXVWPHQW RI 5V 7KHRU\ RI DGYDQFH QRW SHUPLVVLEOH ([FHSW WKH DPRXQW SDLG WRZDUGV WD[HV WR WKH ORFDO DXWKRULWLHV INDIAN LAW REPORTS ALLAHABAD SERIES [2001 254 +HOG SDUD &RGH LQ DV PXFK DV WKH ([SODQDWLRQ WR VXE ±UXOH RI 5XOH RI 2UGHU ;9 RI WKH FRGH FOHDUO\ IRUELGV DQ\ GHGXFWLRQ IURP μWKH PRQWKO\ DPRXQW GXH¶ H[FHSW WKH WD[HV LI DQ\ SDLG WR D ORFDO DXWKRULW\ LQ UHVSHFW RI WKH EXLOGLQJ RQ OHVVRU¶V DFFRXQW ,W LV UDWKHU SHU LQFXULDP DQG FDQQRW OHQG VXSSRUW WR WKH FRQWHQWLRQ RI WKH OHDUQHG FRXQVHO RI WKH DSSOLFDQW &DVH ODZ GLVFXVVHG $5& By the Court 1. Heard Sri B.N. Agarwal, the learned counsel appearing for the defendant- applicant and Sri Prakash Gupta, the learned counsel appearing for the respondent opposite parties. 2. Instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887, as amended by the State of U.P., is directed against the order dated 16th September, 1989 passed by the Judge, Small Causes Court/IV Addl. District & Sessions Judge, Jhansi in Original Suit No.15 of 1988, Ramanand Dixit & another Vs. Bal Krishna. 3. The impugned order was passed on the application No.30-C moved by the plaintiff opposite parties under Rule 5 of Order XV of the Code of Civil Procedure, 1908, hereinafter called the 'Code', and by the order the defence of the defendantapplicant has been struck off. The applicant seeks to assail the impugned order on the following two grounds:- 1. That the trial court has misconstrued the provisions of Order XV Rule 5 of the Code of Civil Procedure and wrongly struck off the defence of the defendant applicant in as much as under Order XV Rule 5 of the Code of Civil Procedure only admitted amount is to be deposited by the defendant-applicant but defendantapplicant has not admitted any amount which is due and as such the defence was not liable to be stuck off and 2. that the application of the plaintiffopposite parties for striking off the defence of the applicant was not maintainable after close of the evidence of the plaintiffs witnesses and the trial court committed illegality in entertaining and allowing the application. 4. So far as ground no.2 is concerned, it does not survive in as much as on a reference made in this case itself a Division Bench of this Court by its judgement and order rendered on 9th April, 1996 has held as below: "---in view of the provisions of Rule 5 of order XV of the Code, where the defendant commits default in making the deposit of the monthly amount due, during the continuation of the suit, even after the closure of the evidence of the plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV Rule 5 C.P.C. and decide the same on merits." 5. For the purposes of proper appreciation of and adjudication upon ground No.1, the provisions of Rule 5 of Order XV of the Code, as amended by the up Act. No.57 of 1976, is quoted below in extenso:- "5. Striking of defence for failure to deposit admitted rent, etc.:- ( 1) In any suit by a lessor for the eviction of lessee after the determination of his lease 2All] Bal Krishna V. Ramanand Dixit and another 255 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 :- The expression 'first hearing' means the date for filling 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 lessor in writing signed by him) and the amount, if any, deposited in any Court under S 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction ) Act, 1972. 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 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." (Emphasis supplied ) 6. Sub-rule (1) of Rule 5 of Order XV of the Code mandates that in any suit by lessor for 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 at the rate of nine per Centum per annum". It further ordains that the defendant shall, whether or not he INDIAN LAW REPORTS ALLAHABAD SERIES [2001 256 admits any amount to be due, throughout continuation of the suit regularly deposit " the monthly amount due " within a week from the date of its accrual. Disobedience of the mandate of making the deposit of " the entire amount admitted by him to be due" as aforesaid, may, subject to the provisions of sub-rule (2), invite penalty of striking off the defence of the defendant. 7. In the instant case, obligation with regard to the deposit of the entire amount admitted to be due together with interest thereon at the rate of nine per centum, at or before the first hearing of the suit, does not arise in as much as the applicant has not admitted any amount to be due. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance of the mandate with regard to deposit of the monthly amount due within a week from the date of its accrual regularly during the continuations of the suit. 8. The expression "monthly amount due" as defined by Explanation (3) to subrule (1) of Rule 5 of Order XV of the Code, 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. 9. In the instant case, it is not disputed that the amount falling due every month as rent is Rs.300/- Further, it is admitted that no monthly amount due has been deposited by the applicant. Thus, there is no escape from the conclusion that the applicant did commit default in compliance of the mandatory requirement of depositing "the monthly amount due", which means the amount of rent due from him in respect of building for use and occupation at the admitted rate of rent, namely Rs300/-. 10. The learned counsel appearing for the applicant further contends that the trial court should have decided the question whether the applicant was entitled to adjustment towards rent from the advance of Rs.8000/-deposited by him as per agreement, and the trial court committed error in the eye of law in not accepting the theory of advance deposit put forward by the defendant applicant. Thus, the impugned order deserves to be annulled. 11. To buttress his contention, Sri Agarwal places reliance upon the order dated April 12, 1990 passed by a learned single judge of this Court in Civil Revision No. 273 of 1990, Anil Kumar Mahajan Vs. Ashok Kumar and another, reported in 1990 (2) Allahabad Rent Cases at page 189, wherein it has been observed as below: "After hearing learned Counsel for the parties at some length, I am of the opinion that the trial Court should record a finding as to whether the plea taken by the defendant is a bona fide plea and also a finding as to whether there was a consent of the landlord for spending Rs.45,000/- and adjusting the same in the rent which would have become due for the future months. It is only after recording such a finding on the aforesaid question that the application under Order XV, Rule 5, C.P.C. be disposed of in accordance with the contract, whether implied or express, arrived at between the 2All] Ghanshyam Upadhyay V. The U.P.P.S.C., Allahabad and others 257 parties. It is, however, made clear that this Court is not expressing any opinion on merits of the case and the Court below will records its own finding on the basis of the materials filed by the parties before it.' 12. Mere perusal of the part of the order extracted above makes it clear that the opinion expressed in the order does not constitute a binding precedent. An order cannot be read beyond what it decides. Therefore, the opinion expressed in the order on the basis of the facts and circumstances of that case cannot be assigned a status higher than an instance of the course adopted by the Court. 13. The provisions of sub-rule (1) of Rule 5 of Order XV of the Code unmistakably, enjoin upon the defendant in a suit by a lessor for his eviction to regularly deposit the monthly amount due within a week from the date of its accrual throughout continuation of the suit. In the event of default, the Court may, subject to the provisions of sub-rule (2) of Rule 5 of Order XV of the Code, strike off his defence. The opinion expressed by the learned single judge in the case of Anil Kumar Mahajan Vs. Ashok Kumar and another (supra) is not in consonance with the provisions of Rule 5 of Order XV of the Code in as much as the Explanation (3) to sub - rule ( 1) of Rule 5 of Order XV of the Code clearly forbids any deduction from "the monthly amount due except the taxes, if any, paid to a local authority in respect of the building on lessor's account. It is rather per incuriam, and cannot lend support to the contention of the learned counsel of the applicant. 14. All told, in the opinion of the Court, the revision lacks merit and is dismissed. The interim order/ orders shall stand vacated. There is no order as to costs. 15. The suit has remained pending for over twelve years. Therefore, the trial court is directed to dispose of the suit as expeditiously as possible, but not later than six months from the date of receipt of the certified copy of this order. 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$ '$7(' $//$+$%$' 0$5&+ %$' 0$5&+ %()25( %()25( 7+( +21·%/( 65 6,1*+ - 7+( +21·%/( 65 6,1*+ - 7+( +21·%/( '5 &+$8'+$5< - 7+( +21·%/( '5 &+$8'+$5< - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI *KDQVK\DP 8SDGK\D\ 3HWLWLRQHU 9HUVXV 7KH 83 3XEOLF 6HUYLFH &RPPLVVLRQ $OODKDEDG DQG RWKHUV «5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL $VKRN %KXVKDQ 6KUL