# Bhure Khan Warsi Revisionist v. Mohd. Israr

- **Citation:** (2024) 1 ILRA 1143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Bench:** Siddhartha Varma, Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhure-khan-warsi-revisionist-v-mohd-israr-50844
- **Pages:** 13

## Headnote

Civil Law - Civil Procedure Code,1908
(U.P. Amendment) - Order XV Rule 5 -
Landlord-Tenant Relationship Dispute - The
revisionist challenged the Trial Court's order
striking off his defence under Order XV Rule 5
Civil Procedure Code,1908 for non-deposit of
rent, denying the landlord-tenant relationship -
Held, the court must first determine the
existence of a landlord-tenant relationship if
disputed, as the obligation to deposit rent under
Order XV Rule 5 applies only to admitted rent or
when the relationship is established, following
*Kunwar Baldevji Vs XI A.J., Bulandshahr*.
(Paras 7, 11, 23, 30, 31)

Revisional Jurisdiction - Scope and Limits
- The revisionist argued that the Trial Court
erred in striking off the defence without
adjudicating the landlord-tenant relationship -
Held, the court's revisional jurisdiction is limited
to
correcting
jurisdictional
errors
or
misinterpretations of law, and the Trial Court's
failure to address the disputed relationship
before applying Order XV Rule 5 warranted
scrutiny, as per *Asha Rani Gupta Vs Vineet
Kumar* and *Budhu Mal Vs Mahabir Prasad*.
(Paras 4, 19, 30, 31)
Denial of Landlord-Tenant Relationship -
Effect on Rent Deposit - The revisionist
denied being a tenant, claiming ownership
through an agreement to sell - Held, a bona
fide denial of the landlord-tenant relationship,
supported by evidence, requires adjudication
before enforcing rent deposits under Order XV
Rule 5; a mere denial simpliciter does not
absolve the defendant from depositing rent, but
substantial evidence of title dispute may lead to
plaint return under Section 23 of the Provincial
Small Cause Courts Act, 1887. (Paras 3, 12, 14,
19, 30, 31)

Civil Procedure Code,1908 - Order XV Rule 5
- Admitted Rent - The plaintiff argued that rent
must be deposited regardless of the denial of the
landlord-tenant relationship - Held, Order XV Rule
5 mandates deposit of "admitted rent" only; the
term "monthly amount due" refers to rent at the
admitted rate, and no deposit is required if the
relationship is genuinely disputed, contradicting
*Pradyuman Jee Vs Special/A.J., Ballia*. (Paras 9,
11, 17, 29, 30, 31)

Provincial Small Cause Courts Act, 1887 -
Section 23 - Title Disputes - The revisionist
claimed the property was purchased under an
agreement to sell, disputing the plaintiff's title -
Held, if a serious title dispute arises, the Small
Cause Court may return the plaint to a court
with jurisdiction to determine title, as per
*Budhu
Mal
Vs
Mahabir
Prasad*
and
*Rameshwar
Dayal
Vs
Banda*,
ensuring
adjudication of the dispute before applying
Order XV Rule 5. (Paras 12, 13, 14, 30, 31)

Reference Answered Interim Order to
Continue Until Revision Decided.

List of Cases cited:

## Text

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1 All. Bhure Khan Warsi Vs. Mohd. Israr
1143
production of the certified copy of this
order. There shall be no order as to cost.
----------
(2024) 1 ILRA 1143
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SIDDHARTH , J.

S.C.C. Revision no. 55 of 2023

Bhure Khan Warsi ...Revisionist
Versus
Mohd. Israr ...Respondent

Counsel for the Revisionist:
Sri Iqbal Ahmad

Counsel for the Respondent:
Sri Ashish Agarwal

Civil Law - Civil Procedure Code,1908
(U.P. Amendment) - Order XV Rule 5 -
Landlord-Tenant Relationship Dispute - The
revisionist challenged the Trial Court's order
striking off his defence under Order XV Rule 5
Civil Procedure Code,1908 for non-deposit of
rent, denying the landlord-tenant relationship -
Held, the court must first determine the
existence of a landlord-tenant relationship if
disputed, as the obligation to deposit rent under
Order XV Rule 5 applies only to admitted rent or
when the relationship is established, following
*Kunwar Baldevji Vs XI A.J., Bulandshahr*.
(Paras 7, 11, 23, 30, 31)

Revisional Jurisdiction - Scope and Limits
- The revisionist argued that the Trial Court
erred in striking off the defence without
adjudicating the landlord-tenant relationship -
Held, the court's revisional jurisdiction is limited
to
correcting
jurisdictional
errors
or
misinterpretations of law, and the Trial Court's
failure to address the disputed relationship
before applying Order XV Rule 5 warranted
scrutiny, as per *Asha Rani Gupta Vs Vineet
Kumar* and *Budhu Mal Vs Mahabir Prasad*.
(Paras 4, 19, 30, 31)
Denial of Landlord-Tenant Relationship -
Effect on Rent Deposit - The revisionist
denied being a tenant, claiming ownership
through an agreement to sell - Held, a bona
fide denial of the landlord-tenant relationship,
supported by evidence, requires adjudication
before enforcing rent deposits under Order XV
Rule 5; a mere denial simpliciter does not
absolve the defendant from depositing rent, but
substantial evidence of title dispute may lead to
plaint return under Section 23 of the Provincial
Small Cause Courts Act, 1887. (Paras 3, 12, 14,
19, 30, 31)

Civil Procedure Code,1908 - Order XV Rule 5
- Admitted Rent - The plaintiff argued that rent
must be deposited regardless of the denial of the
landlord-tenant relationship - Held, Order XV Rule
5 mandates deposit of "admitted rent" only; the
term "monthly amount due" refers to rent at the
admitted rate, and no deposit is required if the
relationship is genuinely disputed, contradicting
*Pradyuman Jee Vs Special/A.J., Ballia*. (Paras 9,
11, 17, 29, 30, 31)

Provincial Small Cause Courts Act, 1887 -
Section 23 - Title Disputes - The revisionist
claimed the property was purchased under an
agreement to sell, disputing the plaintiff's title -
Held, if a serious title dispute arises, the Small
Cause Court may return the plaint to a court
with jurisdiction to determine title, as per
*Budhu
Mal
Vs
Mahabir
Prasad*
and
*Rameshwar
Dayal
Vs
Banda*,
ensuring
adjudication of the dispute before applying
Order XV Rule 5. (Paras 12, 13, 14, 30, 31)

Reference Answered Interim Order to
Continue Until Revision Decided.

List of Cases cited:

1. Kunwar Baldevji Vs XI A.J., Bulandshahr,
(2003) 51 ALR 758

2. Asha Rani Gupta Vs Vineet Kumar, 2022 8
ADJ 572 (SC)

3. Budhu Mal Vs Mahabir Prasad, (1988) 4 SCC
194

4. Rameshwar Dayal Vs Banda, (1993) 1 SCC
531
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Nirmal Jeet Singh Hoon Vs Irtiza Hussain,
(2010) 14 SCC 564

6. Krishna Kumar Gupta Vs Manoj Kumar Sahu,
2017 All.C.J. 1415

7. Pradyuman Jee Vs Special/A.J., Ballia, 2008
(71) ALR 892

8. Maya Devi Vs Vipin Kumar Kushwaha, 2016
(3) ARC 474

9. Maqsood Ali Vs Shamsher Khan, Civil Revision
No. 1363 of 1975, decided on 03.01.1979

10. Thakur Prasad @ Bhola Nath Vs Gur Prasad,
Civil Revision No. 1134 of 1978, decided on
12.01.1979

11. Ashma Bibi Vs Ahsan Ali, Civil Mis. Writ
Petition No. 8631 of 1984, decided
on
07.02.1990

12. Jai Chandra Gangwar Vs IIIrd A.J.,
Farrukhabad, Civil Mis. Writ Petition No. 4822 of
1991, decided on 29.09.1994

13. Ram Chandra Srivastava Vs VIIth A.J.,
Barabanki, 2011 (2) ADJ 777

14. Sri Ram Agarwal Vs Smt. Sheela Devi, 2015
(1) AWJ 874

15. Dinesh Enameled Wire Industries Pvt. Lt Vs
M/s Swastik Udyog, 2012 (3) ADJ 298

16. Mahboob @ Challa Vs Mohammad Hussain,
1983 ARC 651

17. Haider Abbas Vs A.J., 2006 (1) ADJ 197

18. Shrimant Shanrao Suryavanshi Vs Pralhad
Bhairoba Suryavanshi, (2002) 3 SCC 676

19. Bal Krishna Vs Ramanand Dixit, 1996 (2)
ARC 285

20. Bimal Chand Jain Vs Gopal Agarwal, (1981)
3 SCC 486

21. Vineet Kumar Vs Upper District Judge, Court
No. 4, 2018 Suppl. ADJ 464
22. Mukesh Singh Vs Ramesh Chand Solanki,
2011 (3) ARC 592

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Siddharth, J.)

1. When the learned Single Judge had
referred the matter for being placed before
a Larger Bench on 18.5.2023, Hon'ble the
Chief Justice placed the case before this
Court. Following is the question which the
learned Single Judge had referred:-

"1) In case of disputing the
landlord-tenant
relationship
by
the
revisionist-defendant upon the application
under Order XV Rule 5 CPC (U.P.
Amendment), as to whether it is required
on the part of the SCC Court to decide the
landlord-tenant relationship first or not,
before proceeding to pass final order on the
application."

2. Heard the learned counsel for the
applicant in the Revision Sri Iqbal Ahmad
and the counsel for the respondent-opposite
party Sri Ashish Agrawal.

3. Briefly stated facts of the case are
that a Suit being S.C.C. Suit No. 10 of 2017
was filed by the plaintiff-respondent on the
ground that there were arrears of rent which
had not been paid by the defendant and,
therefore, a prayer was made that the
defendant be evicted from the premises, the
boundaries of which were given at the
bottom of the plaint. Further prayer was
that the tenant be directed by a mandatory
decree to deposit Rs. 1,51,333/- with the
plaintiff-respondent as arrears of rent.
There were other reliefs also prayed for in
the plaint. The defendant-applicant in the
Revision filed a written statement and
denied
the
fact
that
the defendant-
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1145
revisionist was ever a tenant of the plaintiff.
He had further stated that there was no
agreement
between
the
plaintiff
and
defendant with regard to tenancy of the
property in question and had stated that the
burden of proving that the relationship of
landlord and tenant existed between the
parties was on the plaintiff. He had also
denied the fact that any rent was ever paid by
the defendant to the plaintiff. He had further
stated that the property numbered as
M.M.I.G. No. A-222 situate at Ekta Vihar
North Moradabad was constructed by the
defendant from his own income. Still further,
it was stated that the property in question was
purchased by the plaintiff on 7.10.2009 from
the actual owner Sri Faizan Khan son of
Babban Khan and the plaintiff, thereafter
with an intention to sell the property to the
defendant had entered into an agreement with
him that the property would be sold to the
defendant for Rs. 8,94,927/- and that at the
time of the execution of the agreement for
sale Rs. 2,10,000/- were paid to the plaintiff
and, thereafter, the plaintiff had put the
defendant into actual and physical possession
where he was staying ever since the year
2011 peacefully. The defendant had further
stated in the written statement that the
payment which the defendant had made at the
time when the agreement to sell was entered
into was of Rs. 2,10,000/- and that was only a
part payment. This meant that Rs. 6,84,927/-
were still payable. The defendant has further
stated that the remaining amount was also in
fact paid off subsequently. In the written
statement, it had been stated that malafidely
despite the fact that the complete payment
was made and despite the fact that the
defendant had asked for the execution of the
sale deed on various occasions the plaintiff
had dishonestly filed the Suit in question
treating the defendant a tenant. During the
pendency of the suit, when almost 5 years
had passed, an application under Order XV
Rule 5 of the C.P.C. was filed by the
plaintiff/opposite party on 24.1.2023 (paper
no. 51ga), to which the applicant-defendant
had objected on 13.2.2023. To prove the fact
that the defendant had paid to the plaintiff
various amounts as sale consideration, the
applicant-defendant had also filed a statement
of
account
of
the
Account
No.
16257300000104 as an evidence in the case.

4. The Trial Court / Additional
District Judge, Court No. 5, Moradabad,
when had allowed the application under
Order XV Rule 5 of the C.P.C. and had
struck
off
the
defence
of
the
defendant/applicant in the Revision by
his order dated 29.3.2023, the instant
S.C.C. Revision No. 55 of 2023 was filed
in this Court.

5. Before the learned Single Judge
there were 4 decisions which were placed
by the counsel for the defendant/revisionist,
namely, Civil Revision No. 1363 of 1975:
Maqsood Ali Vs. Shamsher
Khan,
decided on 03.01.1979, Civil Revision No.
1134 of 1978: Thakur Prasad alias Bhola
Nath Vs. Gur Prasad, decided on
12.01.1979, Civil misc. Writ Petition No.
8631 of 1984: Ashma Bibi Vs. Ahsan Ali
and another, decided on 07.02.1990 and
Civil Misc. Writ Petition No. 4822 of
1991: Jai Chandra Gangwar Vs. IIIrd
Additional District Judge, Farrukhabad
and others, decided on 29.09.1994, stating
that the Judge Small Causes Court had first
to decide, the issue whether the relationship
of landlord-tenant existed, which had to be
decided at the first instance when the
relationship was denied by the defendant.

6. The counsel appearing for the
plaintiff-opposite
party
had,
however,
relied upon the judgements reported in
2015 0 Supreme (All) 3530 : Maya Devi
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
and Anr. vs. Vipin Kumar Kushwaha
and Anr;
2008
(71) ALR
892
:
Pradyaman Jee v. Special/Additional
District Judge, Ballia and others, 2011
(89) ALR 655 : Mukesh Singh and
another vs. Ramesh Chand Solanki and
2012 (92) ALR 526 : Yusuful Haq @
Yusuf and others vs. Smt. Ghayyur
Fatma and others, wherein it was held
that
whether
the
landlord
-tenant
relationship was accepted or denied by the
defendant, it was essential on the part of the
defendant to deposit the rent from month to
month as per the Order XV Rule 5 of the
C.P.C. and the question with regard to the
relationship of landlord and tenant was to
be looked into at the time of the final
hearing of the Suit. Since there were
contrary views taken in the two sets of
decisions, the learned Single Judge had
made the reference.

7. Learned counsel for the applicant
in the Revision/defendant has submitted
that a bare perusal of the provisions of
Order XV Rule 5 of the C.P.C. as were
applicable in the State of U.P., it was clear
that when any suit by a lessor for the
eviction of a lessee was filed after the
determination of lease for the eviction of
the lessee and for the recovery of arrears of
rent from him, then only all the "admitted
rent
or
compensation"
for
use
and
occupation of the premises had to be
deposited by the defendant at or before "the
first hearing of the Suit". This amount
would include the arrears admitted by him
along with the interest thereon at the rate of
9 per cent per annum.

8. He had further submitted that the
order XV Rule 5 of the C.P.C. very clearly
had stated that whether or not there was an
admission on the part of the tenant that any
amount was due, he shall throughout the
continuation of the suit regularly deposit
the monthly amount due within a week
from the date of its accrual. Learned
counsel for the revisionist-applicant had
also stated that in the event there was any
default in the making the deposit of the
entire amount due or the monthly amount
due,
then
the
Court
had
to,
after
considering any representation made by the
defendant as per Clause 2 of the Order XV
Rule 5 of the C.P.C., strike off the defence
of the defendant. Relying upon the
Explanation 1 of the Order XV Rule 5 of
the
C.P.C.,
learned
counsel
for
the
revisionist-applicant had stated that 'first
hearing' would mean the date of filing of
the written statement or the date for hearing
mentioned in the summons or where more
than one of such dates of hearing were
there then the last date of hearing
mentioned in the summon would be
considered as the first date of hearing.

9. Learned counsel for the applicantrevisionist Sri Iqbal Ahmad has further
stated that the explanation 2 of the Order
XV Rule 5 of the C.P.C. has explained the
expression "entire gross amount admitted
by him to be due". Further learned counsel
for the applicant-revisionist has shown to
the Court the explanation 3 which explains
the expression "monthly amount due" and
he states that as per the explanation given
in explanation 3 of the Order XV Rule 5 of
the C.P.C. "monthly amount due" meant the
amount due every month, whether as rent
or compensation for use and occupation at
the admitted rate of rent.

10. Learned counsel for the applicantrevisionist, therefore, has submitted that the
Order XV Rule 5 of the C.P.C. was a very
clear piece of legislation and any wrong
interpretation to it could not be permitted,
as by doing so, the meaning of the
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1147
provision of Order XV Rule 5 of the C.P.C.
would be changed. He states that the
provision, as was contained in Order XV
Rule 5 of the C.P.C., was unambiguous and
there were no two interpretation possible of
it. He also states that if any distorted
interpretation is made then it would result
in an absurdity.

11. Learned counsel for the applicantrevisionist states that as per the explanation
3 of the Order XV Rule 5 of the C.P.C., the
monthly amount due had to be calculated at
the admitted rate of rent. He states that if
there was an admitted rate of rent then only
could there be any amount said to be due
before the first hearing. He further states
that if there was any admitted rate of rent
by an actual tenant only then the question
of payment of month to month rent would
arise.

12.

Learned
counsel
for
the
Revisionist states that the Provincial Small
Cause
Courts
Act,
1887
has
also
contemplated that if there was serious
dispute raised by the defendants with
regard to the title of the plaintiff and with
regard to the relationship between the
landlord and tenant then the Court could at
any stage of the proceedings return the
plaint to be presented to the Court having
the jurisdiction to determine the title. In
this regard, learned counsel for the
Revisionist read out the contents of section
23(1) of the Provincial Small Cause Courts
Act, 1887 which is reproduced here as
under :-

23. Return of plaints in suits
involving
questions
of
title.-
(1)
Notwithstanding anything in the foregoing
portion of this Act, when the right of a
plaintiff and the relief claimed by him in a
Court of Small Causes depend upon the
proof or disproof of a title to immovable
property or other title which such a Court
cannot finally determine, the Court may at
any stage of the proceedings return the
plaint to be presented to a Court having
jurisdiction to determine the title.

13.

Learned
counsel
for
the
Revisionist has also relied upon the
judgment of the Supreme Court in Budhu
Mal vs. Mahabir Prasad and others
reported in (1988) 4 SCC 194 and since he
relied heavily on paragraph 10 of the
judgment, the same is being reproduced
here as under :-

"10. It is true that Section 23
does not make it obligatory on the Court of
Small Causes to invariably return the plaint
once a question would not be cognizable by
a Court of Small Causes and it is for these
reasons that we are of the opinion that
these are such cases where the plaints
ought
to
have
been
returned
for
presentation to appropriate court so that
none of the parties was prejudiced."

14.

Learned
counsel
for
the
Revisionist has also relied upon the
decisions
of
the Supreme
Court
in
Rameshwar Dayal vs. Banda (dead)
through his Lrs. And others reported in
(1993) 1 SCC 531 and Nirmal Jeet Singh
Hoon vs. Irtiza Hussain and others
reported in (2010) 14 SCC 564 which
judgments clearly were to the effect that if
the defendant denied the title of the
applicant seriously then it was in the
discretion of the Court to return the plaint
for being presented to a Court having
jurisdiction to determine the title.

15.

Learned
counsel
for
the
revisionist- applicant thereafter dealt with
the judgements as were cited by the
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff-opposite party and submitted that
when Maya Devi and Another vs. Vipin
Kumar Kushwaha and another reported
in 2016 (3) ARC 474 was saying that there
were two parts of Order XV Rule 5 of the
C.P.C. then it had erred in law. Learned
counsel
for
the
revisionist-applicant
states that when the decision in Maya
Devi (supra) had stated that the first part
dealt with the deposit of the amount
admitted by the tenant to be due on the
first hearing and the second part dealt
with the law that when the relationship of
tenant and landlord was denied then the
monthly amount due was to be deposited
whether it was admitted by the tenant or
not then he submits that the Court erred
in law as the payment had to be done of
the admitted rent only and only when the
relationship of tenant and landlord was
established/admitted.
He,
therefore,
submits that the Court in the judgement
reported in 2008 (71) ALR 892 :
Pradyuman Jee v. Special/Additional
District
Judge,
Ballia, decided
on
2.4.2008 also erred in law when it had
stated that if the defendant denies the
existence of relationship between the
landlord and tenant then he may not be
required to deposit the amount as is
referred in the first part of Order XV Rule
5 of the C.P.C. but he would still deposit
the monthly amount due as per the second
part of the Order XV Rule 5 of the C.P.C.

16.
Learned
counsel
for
the
revisionist-applicant, to explain that the
judgement had erroneously stated that
when the relationship of landlord and
tenant had been denied tenant had to pay
the monthly rent, read out paragraph no.
11 of the judgement in Pradyuman Jee
(supra) and compared it with the
provision of Order XV Rule 5 of the
C.P.C.

17. Since the learned counsel for the
revisionist-applicant compared the law as
had been laid down in Pradyuman Jee
(supra) and the Order XV Rule 5 of the
C.P.C., the paragraph no. 11 of the
aforesaid judgement and the Order XV
Rule 5 of the C.P.C. are being reproduced
here as under;

11. It is, therefore, clear that
Order XV Rule 5 CPC is in two parts. The
first part deals with the deposit of the
"amount admitted by him to be due" while
the second part deals with the "monthly
amount due" whether or not the tenant
admits any amount to be due. Thus, in a
case 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 whether or not he
admits any amount to be due.

Order XV Rule 5 C.P.C.

Striking off defence for 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 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 any default
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1149
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 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."

18.

Learned
counsel
for
the
revisionist-applicant
has
therefore
submitted that nowhere in the Order XV
Rule 5 of the C.P.C. it had been stated that
if the relationship between tenant-landlord
had been denied then also the defendant
would have to deposit the monthly amount
due at the admitted rate of rent.

19.

Learned
counsel
for
the
revisionist-applicant submitted that the
judgement of the Supreme Court reported
in 2022 8 ADJ 572 (SC) : Asha Rani
Gupta vs. Vineet Kumar, which had been
heavily relied upon by the J.S.C.C. had
stated that whether the defendant has not
denied his status of being the lessee it was
imperative for him to have scrupulously
complied with the provisions of Order XV
Rule 5 of C.P.C. i.e. he had to pay the
arrears of rent due and he was also required
to make regular deposits of the monthly
amount due. However, he states that
definitely the Supreme Court had stated
that in every case of denial of relationship
of landlord and tenant, the defendant would
not enjoy the luxury of not paying the
monthly
rent.
He
submits
that
the
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement in Asha Rani Gupta (supra),
the Supreme Court had stated that when
there was a denial of the title of the plaintiff
by
the
defendant
and
also
of
the
relationship of the landlord and tenant then
such denial simplicitor did not mean that it
would absolve the tenant/lessee to deposit
the due amount of rent. He submits that the
Supreme Court had stated that this question
was a question of fact and was to be
determined in every case with reference to
its fact but it could not be stated to be a
general proposition of law that the mere
denying of title of the plaintiff or the
relationship of landlord and tenant between
the plaintiff and the defendant, the latter
would be absolved of the duty of depositing
the amount as was to be deposited in Order
XV Rule 5 of the C.P.C.

20. Learned counsel for the applicant
has stated that the judgment in Asha Rani
Gupta (supra) has virtually reiterated what
section 23 of the Provincial Small Cause
Courts Act, 1887 has stated.

21. Learned counsel for the applicant
in the Revision, to bolster his case, relied
upon paragraphs no. 12, 12.1, 13 and 14 of
judgement in Asha Rani Gupta (supra)
and therefore they are being reproduced
here as under:

"12. Reverting to the provisions
under consideration, it is noticed that while
the first part of sub-rule (1) of Rule 5 of
Order XV CPC requires deposit of the
admitted due amount of rent together with
interest, the second part thereof mandates
that whether or not the tenant admits the
amount to be due, he has to, throughout the
continuation of the suit, regularly deposit
monthly amount due within a week from the
date of its accrual. Read as a whole, it is
but clear that Order XV Rule 5 CPC
embodies the fundamental principle that
there is no holidaying for a tenant in
payment of rent or damages for use and
occupation, whether the lease is subsisting
or it has been determined. The only basic
requirement in the suit of the nature
envisaged by Order XV Rule 5 CPC is the
character of defendant as being the
lessee/tenant in the suit premises. Viewed
from this angle, we are not inclined to
accept the line of thought in some of the
decisions of the High Court that in every
case of denial of relationship of landlord
and tenant, the defendant in suit for
eviction and recovery of rent/damages
could enjoy holidays as regards payment of
rent.

12.1.
For
what
has
been
discussed hereinabove, the decision of the
High Court in Ladly Prasad (supra) does
not require much dilation when it remains
indisputable that it is not always obligatory
on the Court to strike off the defence.
However, the said decision cannot be read
to mean that despite default of the tenant in
payment of rent, the defence has to be
permitted irrespective of its baselessness.
The decision in Kunwar Baldevji (supra),
again, would have no application to the
facts of the present case. Herein, the
defendant-respondent has not only omitted
to deposit the rent on the first date of the
hearing but, has also omitted to deposit the
accrued rent during the pendency of the
suit.

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
interest on or before the first date of
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1151
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.

14. In the context of the
proposition of denial of title of the plaintiff
and denial of relationship of landlord and
tenant between the plaintiff and defendant,
we may also observe that such a denial
simpliciter does not and cannot absolve the
lessee/tenant to deposit the due amount of
rent/damages for use and occupation,
unless he could show having made such
payment in a lawful and bona fide manner.
Of course, the question of bona fide is a
question of fact, to be determined in every
case with reference to its facts but, it
cannot be laid down as a general
proposition that by merely denying the
title
of
plaintiff
or
relationship
of
landlordtenant/lessor-lessee, a defendant
of the suit of the present nature could
enjoy the property during the pendency of
the suit without depositing the amount of
rent/damages."

22.

Learned
counsel
for
the
revisionist-applicant, therefore, submitted
that the Supreme Court in Asha Rani
Gupta (supra) definitely did not lay down
the law that in simply all cases where the
defendant
denied
the
relationship
of
landlord and tenant, the defendant as per
the Order XV Rule 5 of the C.P.C. would
still have to pay the monthly amount due
even if it was absolved from paying the
arrears due at the time of first hearing.

23.

Learned
counsel
for
the
revisionist-applicant,
thereafter,
heavily
relied upon a decision of this Court
reported in 2003 (51) ALR 758 : Kunwar
Baldevji and etc. vs. The XI Additional
District Judge, Bulandshahr and others
and had submitted that the question
whether the defendant had to pay the
monthly rent even if he denied that any
amount done was no longer res intergra as
in the Division Bench, aforementioned, it
had very clearly been stated that the
provisions of Order XV Rule 5 of the
C.P.C. were unambiguous and clear and
only the "rent admitted" by the tenant had
to be deposited as per the provisions of
Order XV Rule 5 C.P.C. He submits that if
the tenant denies any rent to be due then the
Court as per the Division Bench judgement
in Kunwar Baldevji (supra) had to
adjudicate on the allegation and that
finding could be given only after the first
date of hearing. Since the learned counsel
for the applicant read out the paragraphs
no. 12 and 13 of the judgement, they are
being reproduced here as under:-

"12.
Having
considered
the
aforesaid decisions we find that the
language of Order 15, Rule 5, Code of
Civil Procedure is unambiguous, clear and
there is no scope of doing violence with it
and stretch it to mean that expression "rent
admitted by the tenant to be due" should
mean rent found by the Court to be
due......... Question of interpretation - of a
statutory provision arises only when it is
ambiguous or admits two interpretation or
it is required to save the provision from
being declared void. No such contingency
exists in the present case.

13. If amount of rent is admitted
then it is not required to be adjudicated by
the Court. In case, tenant denies any rent to
be due, court shall be required to decide the
same. It is obvious that in such contingency
Court will have to adjudicate and its
finding will come subsequent to the 'first
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
date of hearing' contemplated under Order
15, Rule 5, Code of Civil Procedure. It is,
therefore, evident that by the time the Court
will render its finding, 'first date of
hearing' which is cut off date for deposition
of rent, shall be over. It also requires no
comment that such an issue is first to be
framed and thereafter adjudicated after
parties have led evidence in accordance
with law.

24. Learned counsel for the applicant
also heavily relied upon a judgement of this
Court reported in 2017 All.C.J. 1415 :
Krishna
Kumar
Gupta
vs.
Manoj
Kumar Sahu and had submitted that if the
relationship of landlord and tenant or lessor
and lessee is not admitted by the defendant
then the provisions of Order XV Rule 5 of
the C.P.C. would not be applicable. Since
the learned counsel for the revisionist read
out the paragraph no. 13 of the judgement,
it is being reproduced here as under:-

"13. One of the common features
in the two categories, which is reflected by
the use of words "admitted rate of rent" in
both Explanation 2 and Explanation 3 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. A
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. would not be applicable.

25. Learned counsel for the applicantrevisionist, therefore, submitted that the
four judgements which have been relied
upon by the revisionist and which have
found mention in the order of the learned
Single Judge dated 18.5.2023 laid down the
correct law. He, however, submitted that as
per the decision of Supreme Court in Asha
Rani Gupta (Supra) read along with
Section 23 of the Provincial Small Causes
Court Act, 1887, the court below had to see
as to whether the denial of the relationship
of the landlord and tenant was denial
simplicitor or whether it was an actual
denial based on evidence. He, therefore,
submits that if there was a denial of the
relationship and was based on evidence
then the Court will have to adjudicate upon
the denial and its finding could be given
subsequent to the first date of hearing as
was contemplated under Order XV Rule 5
of the C.P.C.

26. Learned counsel for the plaintiffopposite party in the Revision Sri Ashish
Agrawal, however, in reply submitted that
even if there was a denial of landlordtenant relationship by the defendant, the
defendant would not be absolved of the
responsibility of depositing the monthly
rent due and he heavily relied upon 2016
(3) ARC 474 : Maya Devi and another vs.
Vipin Kumar Kushwaha and another,
2011 (2) ADJ 777 : Ram Chandra
Srivastava vs. VIIth Additional District
Judge, Barabanki an dothers, 2015 (1)
AWJ 874 : Sri Ram Agarwal vs. Smt.
Sheela Devi, 2022 (8) ADJ 572 : Asha
Rani Gupta vs. Sri Vineet Kumar, 2012
(3) ADJ 298 : Dinesh Enameled Wire
Industries Private Ltd. vs. M/s Swastik
Udyog and others, 1983 ARC 651 :
Mahboob alias Challa v. Mohammad
Hussain, 2006 (1) ADJ 197 : Haider
Abbas vs. Additional District Judge and
others, 2002 (3) SCC 676 : Shrimant
Shanrao Suryavanshi & anr vs. Pralhad
Bhairoba Suryavanshi (D) by Lrs. &
Ors, 1996 (2) ARC 285 : Bal Krishna vs.
Ramanand Dixit, 1981 (3) SCC 486 :
Bimal Chand Jain vs. Gopal Agarwal,
2018 Suppl. ADJ 464 : Vineet Kumar vs.
1 All. Bhure Khan Warsi Vs. Mohd. Israr
1153
Upper District Judge, Court No. 4 and
others, 2011 (3) ARC 592 : Mukesh
Singh and another vs. Shri Ramesh
Chand Solanki and 2008 (71) ALR 892 :
Pradyuman Jee vs. Special/Additional
District Judge, Ballia.

27. Learned counsel for the plaintiff -
opposite party in the Revision submitted,
relying upon the above judgements that
even when there was a denial by the
defendant of the relationship of landlord
and tenant, the defendant had to pay the
monthly rent from month to month as per
the provisions of Order XV Rule 5 of the
C.P.C..

28. Analysing the judgements as have
been cited by the plaintiff - opposite party
in 2012 (3) ADJ 298 : Dinesh Enameled
Wire Industries Prvt. Ltd vs. M/s.
Swastik Udyog and others we find that it
supports the defendants case inasmuch as it
has in clear word stated that the learned
Division Bench in Kunwar Baldevji
(supra) was a correct law. The judgement
cited by the defendant in 2006 (1) ADJ 197
: Hairder Abbas vs. Additional District
Judge and others was with regard to the
law as to whether the amounts deposited
under Section 30 of the Rent Control Act
and should be adjusted towards the
payment under Order XV Rule 5 CPC. The
judgement of 1996 (2) ARC 285 : Bal
Krishna vs. Ramanand Dixit and Ors.
also does not relate to the present question
at hand.

29. Having heard the learned counsel
for the parties, this Court opines that a bare
reading of Order XV Rule 5 of the C.P.C.
shows that upon the filing of a Suit by a
lessor for the eviction of a lessee and for
the recovery from him of the rent or
compensation the defendant shall at or
before the first hearing of the Suit deposit
the entire amount admitted by him to be
due together with the interest thereon @ 9
% per annum and that the Order XV Rule 5
of the C.P.C. further goes on to say that
even if the defendant does not admit 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 if there was
a default then the Court may, subject to the
decision to be taken under Order XV Rule
5 (2) of the C.P.C., strike off the defence of
the defendant. The Court also finds that the
expression "entire amount admitted by him
to be due" has been explained under the
explanation 2 which means the "entire
gross amount".

30. The Court also finds that the
explanation 3 clearly explains "the monthly
amount due" and as per the explanation it
would be the "admitted" rate of rent. A
perusal of the Order XV Rule 5 of the
C.P.C. definitely does not show that if the
defendant
denied
the
relationship
of
landlord and tenant then there was a
compulsion on the defendant to pay the rent
from month to month as had been held in
the four judgements cited by the plaintiff
and have been noted by the learned Single
Judge in his order dated 18.5.2023. In the
judgement of the Division Bench in
Kunwar Baldevji (supra), the Court very
clearly states that there was no requirement
to interpret the Order XV Rule 5 of the
C.P.C. when it is absolutely unambiguous
and clear. There was no occasion to stretch
the meaning of the expression "rent
admitted by the tenant to be due" should
mean "rent found by the Court to be
due......" It states that the question of
interpretation of a statutory provision arises
only when the provision is ambiguous or
admits of two interpretation or the
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
interpretation is required to save the
provision from being declared void. The
judgement in Kunwar Baldevji (supra)
clearly states that with regard to Order XV
Rule 5 of the C.P.C. no such contingency
exists. Relying upon Kunwar Baldevji
(supra), we also hold that only admitted
rent would have to be paid when arrears
were being paid. This Court further opines
in view of the judgement of Asha Rani
Gupta(supra) and in view of section 23 of
the Provisional Small Cause Courts Act
1887 that if there was a case of denial of
the
relationship
of
landlord by
the
defendant then not in every case the
defendant would be absolved of the
responsibility of paying the month to
month rent. A denial simplicitor did not
absolve the defendant of the responsibility
to pay the month to month rent. The denial
had to be bonafide and that question could
be determined in every case with reference
to its facts and it cannot be laid down that a
simple mere denial of title of the plaintiff or
the relationship of landlord - tenant, the
defendant of a Suit could be absolved from
paying the monthly rent as per the
provisions of Order XV Rule 5 of C.P.C.
This is also the law as had been laid down
by the Supreme Court in Budhu Mal vs.
Mahabir Prasad and others reported in
(1988) 4 SCC 194 which had stated that
the plaint had to be returned for a definite
adjudication of a Civil Court in case there
was a serious dispute with regard to the
title. The Court, therefore, as per us,
definitely would have to look into the
degree of the denial.

31. Ultimately, this Court answers the
reference in the following manner :

(I) In a suit for eviction, on the
determination of lease if the lessee admits
that there was rent due then at or before the
first hearing of the suit he shall pay the
entire admitted amount along with interest
thereon at the rate of 9% per annum.

(ii) If he does not admit any
amount to be due then he would throughout
the continuation of the suit regularly
deposit the monthly amount due within a
week from the date of its accrual.

(iii) Default of the above two
would give the Court a right to strike off
the defence, subject to the provisions of
sub-rule (2) of Order XV Rule 5 of the
C.P.C. which gives the defendant an
opportunity to represent within ten days
from the first hearing.