# Gangu v. Smt. Alka Arora & Anr

- **Citation:** (2022) 11 ILRA 301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-29
- **Case number:** Matter Under Article 227 No. 2725 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gangu-v-smt-alka-arora-anr-47816
- **Pages:** 5

## Headnote

302 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - Civil Procedure Code, 1908Order XV, Rule 5-application by landlord
to strike off defence of tenant for nondeposit
of
rent,
month
by
monthPetitioner had been depositing rent in the
court of Civil Judge u/s 30 of the U.P. Act
1972-Petitioner was not aware of the
requirement of law regarding deposit
under
Order
XV,
Rule
5,
CPC-no
justification for the petitioner after he
had put in appearance in the suit and filed
his
written
statement-Thus,
the
petitioner's defence has been rightly
struck off-While depositing the amount at
or before the first hearing of the suit, the
tenant can deduct the amount deposited
u/s 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.(Para 1 to 10)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

11 All. Gangu Vs. Smt. Alka Arora & Anr.
301
include any other dispute in the definition of
'commercial dispute' by notification.

17. On 03.03.2020, Mr. Manoj
Kumar,
learned
Central
Government
Standing
Counsel
was
asked
to
get
instructions whether the Central Government
has issued any notification, as contemplated
under Section 2(1) (c) (xxii) of the
Commercial Courts Act, 2015. He was
further asked to get definite instruction as to
whether the dispute arising out of land
acquisition for the purpose of construction of
highway has been treated as commercial
dispute by any notification issued by the
Central Government under Section 2(1) (c)
(xxii) of the Act.

18. Today, Mr. Manoj Kumar,
learned
Central
Government
Standing
Counsel, on instructions, submitted that no
such notification has been issued by the
Central Government under Section 2(1) (c)
(xxii) of the aforesaid Act.

19. It is nobody's case that
petitioners are into real estate business.
Learned counsel appearing for respondent no.
2 fairly concedes that petitioners are not
doing trade or business in immovable
property. It is an admitted position that the
property belonging to the petitioners were
compulsorily acquired under the provisions
of National Highways Act, 1956, therefore,
Clause-vii of Section 2(1) (c) of the
Commercial Courts Act, 2015 also cannot be
pressed into service for treating 9 the dispute
raised by the petitioners before the District
Judge, as commercial dispute.

20. In view of the aforesaid
discussion, this Court has no hesitation in
holding that the dispute raised by the
petitioners before the learned District Judge is
not a 'commercial dispute', therefore, learned
District Judge erred in transferring the
application filed by the petitioners under
Section 34 of the Arbitration and Conciliation
Act to the Commercial Court, Dehradun.

19. The principles in Richa Bisht are
squarely applicable to the facts here,
because the petitioners' land has been
acquired for the purpose of a National
Highway. It is by no means a 'commercial
dispute' within the meaning of Section
2(1)(c) of the Commercial Courts Act,
2015. For the said reason, the application
under Section 34 of the Act of 1996 would
not be maintainable before the Commercial
Court. Thus, for reasons very different
from those that have weighed with the
Commercial Court in passing the order
impugned, this Court concurs in the
conclusions reached. It is made clear that
upon return of the application under
Section 34 of the Act of 1996 to the
petitioners, it would be open to them,
subject of course to the law of limitation, to
institute proceedings, if so advised, before
the Court of competent jurisdiction, entitled
to hear an application under Section 34 of
the Act of 1996.

20. Subject to the above clarifications,
this petition is dismissed. There shall be no
order as to costs.
----------
(2022) 11 ILRA 301
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

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

Matter Under Article 227 No. 2725 of 2022

Gangu ...Petitioner
Versus
Smt. Alka Arora & Anr. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Srivastava

Counsel for the Respondents:
Prakhar Tandon
302 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law - Civil Procedure Code, 1908Order XV, Rule 5-application by landlord
to strike off defence of tenant for nondeposit
of
rent,
month
by
monthPetitioner had been depositing rent in the
court of Civil Judge u/s 30 of the U.P. Act
1972-Petitioner was not aware of the
requirement of law regarding deposit
under
Order
XV,
Rule
5,
CPC-no
justification for the petitioner after he
had put in appearance in the suit and filed
his
written
statement-Thus,
the
petitioner's defence has been rightly
struck off-While depositing the amount at
or before the first hearing of the suit, the
tenant can deduct the amount deposited
u/s 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.(Para 1 to 10)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Kedar Nath Vs Waqf Sheikh Abdullah
Charitable Madursa & ors. (2015) SCC Online All
7172

2. Haider Abbas Vs ADJ & ors. (2006) 1 ADJ 197
All (DB)

3. Om Prakash Gupta Vs DJ, Mainpuri & anr.
(2019) 3 AWC 2543

4. Sunil Kumar & ors. Vs Kapoor Chandra
Agarwal Dharamshala Trust (2019)10 ADJ 682

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

1. Heard Mr. S.K. Srivastava, learned
Counsel for the petitioner and Mr. Prakhar
Tandon, Advocate appearing on behalf of
plaintiff-respondents.

2. The petitioner is a tenant and the
defendant in S.C.C. Suit No. 350 of 2018,
pending before the Judge, Small Cause
Court, Kanpur Nagar.

3. On an application made by the
respondent-landlord under Order XV Rule
5 of the Code of Civil Procedure (for short,
'the CPC'), the learned Judge, Small Cause
Court has ordered the petitioner's defence
to be struck off on the ground of failure to
regularly deposit rent, month by month,
with the Trial Court. The order was
challenged in a revision preferred to the
District Judge of Kanpur Nagar, being Civil
Revision No. 91 of 2021. The said revision
was heard and dismissed by the Additional
District Judge, Court No. 16, Kanpur
Nagar.

4. Accordingly, the petitioner has
instituted this petition under Article 227,
asking this Court to set aside the two orders
dated 08.02.2021 and 09.09.2021 passed by
the Courts below and restore his defence.

5. The facts of this case, relevant for
the purpose of this petition, show that there
is no issue about compliance with the first
part of Rule 5 of Order XV CPC, which
requires deposit to be made on the first date
of hearing. What had led to the petitioner's
defence being struck off, is non-compliance
with the part that requires monthly rent to
be deposited regularly with the Court,
where the suit is pending, within 7 days of
the date of its accrual. Here, the petitioner
claims to be depositing rent under Section
30(1)
of
The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (U.P. Act No. 13 of
1972) (for short, 'the Act') in the Court of
the Civil Judge (Jr. Div.), Kanpur Nagar
vide
Misc.
Case
No.
425/70/2018.
Summons of the suit were received by the
petitioner's wife, Kiran on 13.12.2019. On
08.03.2019, Mr. Sushil Kumar Srivastava,
Advocate, instructed by the petitioner,
Gangu, put in appearance on his behalf in
the suit and obtained necessary copies of
11 All. Gangu Vs. Smt. Alka Arora & Anr.
303
the plaint etc. On the 8th April, 2019, a
written statement was filed on behalf of the
petitioner. Thus, the petitioner put in
appearance on 8th April, 2019 and filed his
written statement on 8th April, 2019.
Surprisingly,
however,
the
petitioner
continued to deposit monthly rent in the
Court of the Civil Judge (Jr. Div.) under
Section 30 (1) of the Act for the months of
April, 2019 to November, 2020, and that too,
in lump sum for two months at a time. The
first deposit of monthly rent in the Court,
where the suit is pending, was made on 1st
February, 2021. It was for the months of
December, 2020 and January, 2021.

6. It is submitted by Mr. S.K.
Srivastava,
learned
Counsel
for
the
petitioner that the petitioner contested the
suit through his Counsel and was not aware
of the requirements of the law regarding
deposit under Order XV Rule 5 CPC. He
acted as per advice of the learned Counsel
and deposited rent under Section 30 of the
Act, which he did regularly. It is submitted
that on account of lack of awareness of the
law, he cannot be deprived of his valuable
right, as valuable as his defence in an
eviction suit. Reliance has been placed by
the learned Counsel upon the decision of
this Court in Kedar Nath v. Waqf Sheikh
Abdullah
Charitable
Madursa
and
others, 2015 SCC OnLine All 7172.

10. In Pramod Mehrotra and others
Versus Ram Shankar Chaurasia and
others, 2007(3) ARC 77, where the
amount was deposited with some delay,
this Court relying upon Bimal Chand Jain
(supra), held that discretion should be
exercised not to strike off the defence
where the entire amount has been paid with
some delay.

11. Again in Sudhir Kumar Gupta
Versus Dr. S.K. Raj and another, 1998
(1) ARC 545, the Court observed that the
purpose of enacting the provision Rule 5
Order XV was not to give a lever to the
landlord to get a tenant punished for
insignificant lapses. The purpose was
merely to ensure that the dues of the
landlord are properly secured and he can
get his rent regularly even though the
litigation may continue.

12. In Pyare Lal Versus Distrit Judge,
Lucknow and others, 2010(2) ARC 260
wherein, the Court allowed the deposit of rent
upon imposing cost.

13. In Dr. Ram Prakash Mishra
Versus Additional District Judge, Etah and
another, 1999 (1) AWC 715, it was observed
that the question whether the deposit is valid
or not is relevant for determining the question
whether the tenant could be held to be
defaulter or not in the eye of law, but so far as
Order XV, Rule 5 C.P.C. is concerned, the
only requirement is that the tenant has to
deposit the entire amount on or before the first
hearing of the suit. If the deposit has been
made under section 30 of Act 13 of 1972 then
it will ensure to the benefit of the tenant.

14. The provisions of Order XV Rule 5 is
discretionary, the court is not bound to strike
off the defence in every case of mere technical
or bonafide default. The provision should not
be interpreted in such a way that the tenant
should be trapped to be evicted. (Refer-Vinod
Chandra Kala Versus Premier Precisions
Tools Manufacturing (P). Ltd., 1996(1)
ARC 62; Bhawani Vastrya Bhandan
Versus Smt. Sahodra Devi,1996(2) ARC
406).

7. A Division Bench of this Court in
Haider Abbas v. Additional District Judge
and others, 2006 (1) ADJ 197 (All) (DB),
held:

23. The aforesaid decision of the
Supreme Court in the case of Atma Ram
304 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) emphasizes that if the tenant wishes
to take advantage of the beneficial
provisions of the Rent Control Act, he must
strictly comply with the requirements and if
any condition precedent is required to be
fulfilled before the benefit can be claimed,
the tenant must strictly comply with that
condition failing which he cannot take
advantage of the benefit conferred by such
a provision. It has further been emphasised
that the rent must be deposited in the Court
where it is required to be deposited under
the Act and if it is deposited somewhere
else, it shall not be treated as a valid
payment/tender
of
the
rent
and
consequently the tenant must be held to be
in default.

24. In view of the aforesaid principles
of law enunciated by the Supreme Court in
the aforesaid case of Atma Ram (supra), it
has to be held that the tenant must comply
with the requirements of Order XV, Rule 5,
CPC and make the deposits strictly in
accordance with the procedure contained
therein. A deposit which is not made in
consonance with the aforesaid Rule cannot
enure to the benefit of the tenant and,
therefore, only that amount can be deducted
from the ''monthly amount'' required to be
deposited
by
the
tenant
during
the
pendency of the suit which is specifically
mentioned in Explanation 3 to Rule 5 (1) of
Order XV, CPC.

25. It, therefore, follows that the
amount due to be deposited by the tenant
throughout the continuation of the suit has
to be deposited in the Court where the suit
is filed otherwise the Court may strike off
the defence of the tenant since the deposits
made by the tenant under Section 30 (1) of
the Act after the first hearing of the suit
cannot be taken into consideration.

8. Again, in a later decision of this
Court in Om Prakash Gupta v. District
Judge, Mainpuri and another, 2019 (3)
AWC 2543, it has been held:

13. The
Division
Bench
placed
reliance on the judgment of Supreme Court
in Atma Ram (supra) in holding that if the
tenant desires to take advantage of a
beneficial provision under the Rent Control
Act, he must strictly comply with the
requirements thereof. If any condition
precedent is required to be fulfilled before
the benefit can be claimed, the tenant must
strictly comply with that condition, failing
which he cannot take advantage of the
benefit conferred by the said provision.
Accordingly, it was held that a deposit
made not in consonance with the statutory
provision would not enure to the benefit of
the tenant. The monthly amount required to
be deposited by the tenant during pendency
of the suit has to be deposited in the court
where the suit is filed and not in any other
Court
or
proceedings.
It
has
been
concluded by holding that deposit of
monthly rent under Section 30 of the Act,
after receipt of summons of the suit is
contrary to the requirements of Order 15
Rule 5 CPC and would therefore not enure
to the benefit of the tenant :-

"The
aforesaid
decision
of
the
Supreme Court in the case of Atma Ram
(supra) emphasizes that if the tenant wishes
to take advantage of the beneficial
provisions of the Rent Control Act, he must
strictly comply with the requirements and if
any condition precedent is required to be
fulfilled before the benefit can be claimed,
the tenant must strictly comply with that
condition failing which he cannot take
advantage of the benefit conferred by such
a provision. It has further been emphasised
that the rent must be deposited in the Court
where it is required to be deposited under
the Act and if it is deposited somewhere
else, it shall not be treated as a valid
11 All. Indrapal Singh Vs. State of U.P. & Ors.
305
payment/tender
of
the
rent
and
consequently the tenant must be held to be
in default. In view of the aforesaid
principles of law enunciated by the
Supreme Court in the aforesaid case of
Atma Ram (supra), it has to be held that the
tenant must comply with the requirements
of Order XV Rule 5 CPC and make the
deposits strictly in accordance with the
procedure contained therein. A deposit
which is not made in consonance with the
aforesaid Rule cannot enure to the benefit
of the tenant and, therefore, only that
amount can be deducted from the "monthly
amount" required to be deposited by the
tenant during the pendency of the suit
which
is
specifically
mentioned
in
Explanation 3 to Rule 5 (1) of Order XV
CPC. It, therefore, follows that the amount
due to be deposited by the tenant
throughout the continuation of the suit has
to be deposited in the Court where the suit
is filed otherwise the Court may strike off
the defence of the tenant since the deposits
made by the tenant under Section 30 (1) of
the Act after the first hearing of the suit
cannot be taken into consideration.

.................We, therefore, upon an
analysis of the provisions of Rule 5 (1) of
Order XV CPC, 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." (emphasis supplied)

9. Similar view has been expressed in
Sunil Kumar and others v. Kapoor
Chandra Agarwal Dharamshala Trust,
2019 (10) ADJ 682.

10. There is absolutely no justification
here for the petitioner to have deposited
rent for months together before the Court
exercising jurisdiction under Section 30 of
the Act, after he had put in appearance in
the suit and filed his written statement. The
monthly rent had to be deposited in the
Court, where the suit was pending in
accordance with the provisions of Order
XV Rule 5 CPC, within a week of accrual
of rent every month. This having not been
done, the petitioner's defence has been
rightly struck off.

11. This Court is of opinion that no
case for interference under Article 227 of
the Constitution is made out.

12. This petition is, accordingly,
dismissed.

13. The interim stay order dated
25.04.2022 is hereby vacated.
----------
(2022) 11 ILRA 305
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2022

BEFORE

THE HON'BLE JYOTSNA SHARMA, J.

Matter Under Article 227 No. 9112 of 2022

Indrapal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Pratap Singh, Sri Vijay Tripathi

Counsel for the Respondents:
G.A.