# J.B. Motors v. Smt. Hemlata Kapoor & Ors

- **Citation:** (2025) 9 ILRA 1127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-04
- **Case number:** Matters Under Article 227 No. 7409 of 2025
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/j-b-motors-v-smt-hemlata-kapoor-ors-53861
- **Pages:** 11

## Headnote

powers under Section 25 of the Provincial Small
Cause Courts Act, 1887, was justified in setting
aside the order of the Judge, Small Cause Court
rejecting the application under Order XV Rule 5
C.P.C. and remanding the matter for fresh
consideration,
when
the
defendant
had
categorically
denied
the
landlord-tenant
relationship and claimed ownership on the basis
of a registered sale deed, and whether such
remand order warranted interference under
Article 227 of the Constitution of India.

Headnotes
Civil Procedure Code, 1908 - Order XV
Rule 5 (U.P. Amendment) - Provincial
Small Cause Courts Act, 1887 - ss.23, 25
- Constitution of India - Art.227 -
Striking
off
defence
-
Discretionary
power
-
Denial
of
landlord-tenant
relationship - Claim of ownership by
defendant
-
Scope
of
revisional
jurisdiction - Remand by Revisional Court
- Interference under Article 227 - Order
set aside.

Held:
Order XV Rule 5 C.P.C. (U.P. Amendment)
confers a discretionary and not mandatory
power upon the Court to strike off the defence
of a tenant for non-deposit of admitted rent.
The discretion is required to be exercised
judiciously, having regard to the facts and
circumstances of each case. [Paras 7-8]

Where the defendant, from the inception,
categorically denies the relationship of
landlord and tenant and claims ownership of
the property on the basis of a registered sale
deed, the Judge, Small Cause Court is required
to first examine the seriousness of the title
dispute, including the applicability of Section
23 of the Provincial Small Cause Courts
Act, before exercising power under Order XV
Rule 5 C.P.C. [Paras 10-11]

The Judge, Small Cause Court had rejected the
application under Order XV Rule 5 C.P.C. after
recording a finding that the defendant was
claiming ownership
of the property and,
therefore, could not be compelled to deposit
rent. Such exercise of discretion could not be
termed perverse or illegal. [Paras 10-11]

The
Revisional
Court,
while
exercising
jurisdiction under Section 25 of the Act,
exceeded its limited scope by setting aside
the discretionary order of the Judge, Small
Cause Court and remanding the matter for fresh
consideration, without recording any finding of
jurisdictional error, miscarriage of justice, or
illegality as contemplated under Section 25 of
the Act. [Paras 11-12]
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
The scope of interference under Section 25 of
the Provincial Small Cause Courts Act is confined
to cases of miscarriage of justice or decision not
according to law. The Revisional Court cannot
substitute its own discretion merely because
another view is possible. [Para 12]

The
impugned
revisional
order
dated
01.05.2025 was held unsustainable and was
set aside. The Judge, Small Cause Court was
directed to proceed with the suit and decide
the pending application under Section 23 of
the Act in the light of settled law. [Paras 1314]

Petition allowed. (E-14)

Case Law Cited
Asha Rani Gupta v. Vineet Kumar, 2022
LiveLaw (SC) 607 - relied on; Bhure Khan
Warsi v. Mohd. Israr, 2024 (1) ADJ 1440
(DB) - relied on; Jugeshwar Prasad v.
Hanuman Prasad, 2025:AHC-LKO:28022 -
relied on; Hari Shankar v. Rao Girdhari Lal
Chowdhary, AIR 1963 SC 698 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908; Provincial Small
Cause Courts Act, 1887

List of Keywords
Striking off defence; Discretionary power; Denial
of
landlord-tenant
relationship;
Ownership
claim;
Registered
sale
deed;
Revisional
jurisdiction; Remand order set aside.

Case Arising From
Order dated 01.05.2025 passed by the
Additional District Judge, Court No. 8, Bareilly in
S.C.C. Revision No. 28 of 2023 (Smt.
Hemlata Kapoor and Others v. J.B. Motors),
arising out of S.C.C. Suit No. 3 of 2016,
pending before the Judge, Small Cause Court,
Bareilly.

Appearance for Parties
For the Petitioner: Mr. Shreyas Srivastava
For the Respondents: Ms. Rama Goel Bansal,
Ms. Shalini Goel

## Text

9 All. J.B. Motors Vs. Smt. Hemlata Kapoor & Ors.
1127
vs. ICICI Bank (supra) had
observed that the later Statue (IBC) would
prevail over and override the other Statute
(Electricity Act).

48. In view of aforesaid facts and
discussion, impugned order dated 15th
May, 2025 is set aside and the respondents
are directed to install power connection in
the premises of the petitioner. However, it
is open for the respondents to collect its
dues from the Liquidator.

49.
The
writ
petition
is,
accordingly, allowed.
----------
(2025) 9 ILRA 1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Matters Under Article 227 No. 7409 of 2025

J.B. Motors ...Petitioner
Versus
Smt. Hemlata Kapoor & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Shreyas Srivastava

Counsel for the Respondents:
Mrs. Rama Goel Bansal, Ms. Shalini Goel

Issue for Consideration
Whether the Revisional Court, in exercise of
powers under Section 25 of the Provincial Small
Cause Courts Act, 1887, was justified in setting
aside the order of the Judge, Small Cause Court
rejecting the application under Order XV Rule 5
C.P.C. and remanding the matter for fresh
consideration,
when
the
defendant
had
categorically
denied
the
landlord-tenant
relationship and claimed ownership on the basis
of a registered sale deed, and whether such
remand order warranted interference under
Article 227 of the Constitution of India.

Headnotes
Civil Procedure Code, 1908 - Order XV
Rule 5 (U.P. Amendment) - Provincial
Small Cause Courts Act, 1887 - ss.23, 25
- Constitution of India - Art.227 -
Striking
off
defence
-
Discretionary
power
-
Denial
of
landlord-tenant
relationship - Claim of ownership by
defendant
-
Scope
of
revisional
jurisdiction - Remand by Revisional Court
- Interference under Article 227 - Order
set aside.

Held:
Order XV Rule 5 C.P.C. (U.P. Amendment)
confers a discretionary and not mandatory
power upon the Court to strike off the defence
of a tenant for non-deposit of admitted rent.
The discretion is required to be exercised
judiciously, having regard to the facts and
circumstances of each case. [Paras 7-8]

Where the defendant, from the inception,
categorically denies the relationship of
landlord and tenant and claims ownership of
the property on the basis of a registered sale
deed, the Judge, Small Cause Court is required
to first examine the seriousness of the title
dispute, including the applicability of Section
23 of the Provincial Small Cause Courts
Act, before exercising power under Order XV
Rule 5 C.P.C. [Paras 10-11]

The Judge, Small Cause Court had rejected the
application under Order XV Rule 5 C.P.C. after
recording a finding that the defendant was
claiming ownership
of the property and,
therefore, could not be compelled to deposit
rent. Such exercise of discretion could not be
termed perverse or illegal. [Paras 10-11]

The
Revisional
Court,
while
exercising
jurisdiction under Section 25 of the Act,
exceeded its limited scope by setting aside
the discretionary order of the Judge, Small
Cause Court and remanding the matter for fresh
consideration, without recording any finding of
jurisdictional error, miscarriage of justice, or
illegality as contemplated under Section 25 of
the Act. [Paras 11-12]
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
The scope of interference under Section 25 of
the Provincial Small Cause Courts Act is confined
to cases of miscarriage of justice or decision not
according to law. The Revisional Court cannot
substitute its own discretion merely because
another view is possible. [Para 12]

The
impugned
revisional
order
dated
01.05.2025 was held unsustainable and was
set aside. The Judge, Small Cause Court was
directed to proceed with the suit and decide
the pending application under Section 23 of
the Act in the light of settled law. [Paras 1314]

Petition allowed. (E-14)

Case Law Cited
Asha Rani Gupta v. Vineet Kumar, 2022
LiveLaw (SC) 607 - relied on; Bhure Khan
Warsi v. Mohd. Israr, 2024 (1) ADJ 1440
(DB) - relied on; Jugeshwar Prasad v.
Hanuman Prasad, 2025:AHC-LKO:28022 -
relied on; Hari Shankar v. Rao Girdhari Lal
Chowdhary, AIR 1963 SC 698 - relied on.

List of Acts / Statutes
Code of Civil Procedure, 1908; Provincial Small
Cause Courts Act, 1887

List of Keywords
Striking off defence; Discretionary power; Denial
of
landlord-tenant
relationship;
Ownership
claim;
Registered
sale
deed;
Revisional
jurisdiction; Remand order set aside.

Case Arising From
Order dated 01.05.2025 passed by the
Additional District Judge, Court No. 8, Bareilly in
S.C.C. Revision No. 28 of 2023 (Smt.
Hemlata Kapoor and Others v. J.B. Motors),
arising out of S.C.C. Suit No. 3 of 2016,
pending before the Judge, Small Cause Court,
Bareilly.

Appearance for Parties
For the Petitioner: Mr. Shreyas Srivastava
For the Respondents: Ms. Rama Goel Bansal,
Ms. Shalini Goel

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Shreyas Srivastava,
learned counsel for the petitioner-defendant
and Mrs. Rama Goel Bansal along with Ms.
Shailini Goel, learned counsel appearing
for the respondents-plaintiffs.

2. Brief facts of the case are that
respondents-plaintiffs have instituted a
Small Cause Suit No.3 of 2016 before the
Judge,
Small
Cause
Court,
claiming
themselves to be the landlord of the
property in question. The respondentsplaintiffs are claiming their title through
Mr. Harish Chandra Kapoor, the late
husband of respondent no.1 and late father
of respondent no.2. The property in
question is part and parcel of a huge
portion of land situated at 189, Civil Lines,
District Bareilly. One S.C.C. Suit No. 4 of
2020 was instituted by one Mr. Darab Shah
in the court of Judge, Small Cause Court,
District Bareilly, impleading Sri Anoop
Chaddha as the opposite party which was
decided on the basis of compromise. In
S.C.C. Suit No.3 of 2016, original
petitioner-defendant (J.B. Motors) put in
appearance and filed application under
Order 11 Rule 16 of the Civil Procedure
Code
(for
short
"C.P.C."),
seeking
production of document / title by original
plaintiffs-respondents before the Judge,
Small
Cause
Court.
The
petitioner/defendant
filed
his
written
statement, denying the ownership of the
plaintiffs-respondents in respect to the
property in question. Replication was filed
on 8.3.2022 by the plaintiffs-respondents.
Plaintiffs-respondents filed an application
dated 20.2.2023 (paper no.67C) under
Order 15 Rule 5 of the C.P.C., praying for
striking off the defendant's-petitioner's
defence. The petitioner-defendant filed his
objection dated 17.3.2023 to the application
under Order 15 Rule 5 of the C.P.C. The
petitioner-defendant
also
filed
an
9 All. J.B. Motors Vs. Smt. Hemlata Kapoor & Ors.
1129
application under Section 23 of the
Provincial Small Cause Court Act, 1887
(for short the "Act"). The plaintiffsrespondents filed their objection to the
application filed by the petitioner-defendant
under Section 23 of the Act and the Judge,
Small Cause Court Act vide order dated
19.4.2023 dismissed the application filed by the
plaintiffs-respondents, recording finding of fact
that defendants are the owner of the property in
question, as such, they cannot be accepted to
pay the rent of the accommodation/property in
question. The plaintiffs-respondents challenged
the order of the Judge, Small Cause Court dated
19.4.2023 by way of revision under Section 25
of the Act. The aforementioned revision was
numbered as S.C.C. Revision No.28 of 2023.
The revisional court vide impugned order dated
1.5.2025, set aside the order of the Judge, Small
Cause Court dated 19.4.2023 and remanded the
matter back before the Judge, Small Cause
Court for fresh consideration of the application
under Order 15 Rule 5 of the C.P.C. Hence, this
petition under Article 227 of the Constitution of
India for the following reliefs:-

"1. Issue appropriate orders,
setting aside the order dated 1.5.2025
passed by the Addl. District Judge,
Court No.8, District Bareilly in S.C.C.
Revision No.28/2023 (Hemlata Kapoor
and Others vs. J.B. Motors)

2. Issue appropriate orders,
directing the Judge, Small Cause Court,
District Bareilly, seized with S.C.C. Suit
No.3/2016 (Hemlata Kapoor and Others
vs. J.B. Motors) to decide the application
(paper no.83 ga) under Section 23 of the
Provincial Small Cause Court Act, 1887
(Annexure No.13 to the petition), before
proceeding any further with the suit."

3. Counsel for the petitioner-defendant
submitted that the Judge, Small Cause
Court has rightly exercised his jurisdiction
in rejecting the application filed under
Order 15 Rule 5 of the C.P.C. at the
instance of plaintiffs-respondents but the
revisional court has illegally set aside the
order of the Judge, Small Cause Court and
remanded the matter back to decide the
application under Order 15 Rule 5 of the
C.P.C. afresh. He submitted that the
petitioner is the owner of the property in
question which is the subject matter of
S.C.C. Suit No.3/2016 on the basis of
registered
sale
deed
dated
2.9.2011
executed by Mr. Darab Shah and Others.
He submitted that the plaintiffs-respondents
are claiming title through Mr. Harsh
Chandra Kapoor who was the power of
attorney holder of Mr. Darab Shah and
Others, as such, the plaintiffs-respondents
cannot be treated as the owner of the
property in question. He submitted that the
provision of striking of the defence under
Order 15 Rule 5 of the C.P.C. is
discretionary and directory in nature, as
such, the jurisdiction exercised by Judge,
Small Cause Court in rejecting the
application under Order 15 Rule 5 of the
C.P.C. cannot be interfered with by the
revisional court in exercise of jurisdiction
under Section 25 of the Act. He submitted
that the plaintiffs-respondents in their
plaint, have categorically stated that rent
was being paid to Mr. Darab Shah till
31.3.2011,
i.e.,
before
execution
of
registered sale deed dated 2.9.2011, as
such, the plaintiffs-respondents cannot
become owner/landlord of the property in
question in view of the registered sale deed
executed in favour of the petitionerdefendant. He submitted that the impugned
revisional order should be set aside and the
order passed by the Judge, Smal Cause
Court, rejecting the application under Order
15 Rule 5 of the C.P.C. filed by plaintiffsrespondents should be maintained. He
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
placed reliance on the following judgments
of Hon'ble the Apex Court and that of this
Court in support of his arguments:-

"1. 2022 Live Law (SC) 607
Asha Rani Gupta vs. Sri Vineet Kumar;

2. 2024 (1) ADJ 1440, Bhure
Khan Warsi vs. Mohd. Israr;

3.
2025:AHC-LKO:
28022,
Jugeshwar
Prasad
vs.
Hanuman
Prasad."

4. Counsel appearing for the plaintiffsrespondents submitted that the order passed
by the Judge Small Cause Court is not a
reasoned order, as such, the revisional court
has
rightly
exercised
his
revisional
jurisdiction in setting aside the order of the
Judge, Small Cause Court dated 19.4.2023
and directing the Judge, Small Cause Court
to decide the application under Order 15
Rule 5 of the C.P.C. afresh. She submitted
that the petitioner-defendant has full
opportunity to contest the application filed
under Order 15 Rule 5 of the C.P.C. before
the Judge, Small Cause Court rather instant
petition before this Court under Article 227
of the Constitution of India. She submitted
that in view of the provisions contained
under Order 15 Rule 5 of the C.P.C., the
courts should exercise the jurisdiction in
proper manner. She also submitted that the
Judge, Small Cause Court has not assigned
proper reason while passing the order dated
19.4.2023, rejecting the application filed
under Order 15 Rule 5 of the C.P.C., as
such, no interference is required against the
remand order passed by the revisional court
by which the matter has been sent back
before the Judge, Small Cause Court to
decide the application filed under Order 15
Rule 5 of the C.P.C. afresh. She submitted
that the petition filed under Article 227 of
the Constitution of India by the petitionerdefendant should be dismissed.

5. I have considered the arguments
advanced by learned counsel for the parties
and perused the records.

6. There is no dispute about the fact
S.C.C. Suit No.3 of 2016 filed by plaintiffsrespondents is pending for adjudication
before the Judge, Small Cause Court. There
is also no dispute about the fact that
application under Order 15 Rule 5 of the
C.P.C. filed by the plaintiffs-respondents
has been dismissed under the order dated
19.4.2023. There is also no dispute about
the fact that the revision filed by the
plaintiffs-respondents has been allowed,
setting aside the order of the Judge, Small
Cause Court dated 19.4.2023 and the
matter has been sent back before the Judge,
Small
Cause
Court
to
decide
the
application under Order 15 Rule 15 C.P.C.
afresh.

7.
In
order
to
appreciate
the
controversy involved in the matter, perusal
of Order 15 Rule 5 of the C.P.C. will be
relevant which is as under:-

"Uttar
Pradesh.-
In
its
application to the State of Uttar Pradesh,
in Order XV, for the existing Rule 51,
the following rule shall be substituted,
namely: -

"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
9 All. J.B. Motors Vs. Smt. Hemlata Kapoor & Ors.
1131
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." [Vide U.P. Act 57
of 1976, Section 7 (1-1-1977)]"

8. On the scope of Order 15 Rule 5
C.P.C., the judgment of the Apex Court in
the case of Asha Rani Gupta (supra) will be
relevant. Paragraph nos.11 to 16 of the
judgment rendered in Asha Rani Gupta
(supra) will be relevant for perusal which
are as under:-

11. The present suit has been
filed by the plaintiff-appellant claiming
her capacity as the lessor after having
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
purchased the suit property from its
erstwhile
owner.
According
to
the
plaintiff, the defendant has been the
lessee in the suit shop and his lease was
determined; and while alleging the rent
to be due and having not been paid
despite demand, the plaintiff has filed
this suit for eviction and recovery of
arrears of rent and damages for use and
occupation. Having regard to the plaint
averments, the suit in question is clearly
the one to which the provisions of Order
XV Rule 5 CPC are applicable.

11.1. Though the aforesaid
decisions in cases of Miss Santosh Mehta,
Smt. Kamla Devi and Manik Lal
Majumdar related to the respective rent
control legislations applicable to the
respective jurisdictions, which may not
be of direct application to the present
case
but
and
yet,
the
relevant
propositions to be culled out for the
present purpose are that any such
provision depriving the tenant of defence
because of default in payment of the due
amount
of
rent/arrears
have
been
construed liberally; and the expression
'may' in regard to the power of the
Court to strike out defence has been
construed
as
directory
and
not
mandatory. In other words, the Courts
have leaned in favour of not assigning a
mandatory character to such provisions
of drastic consequence and have held
that a discretion is indeed reserved with
the Court concerned whether to penalise
the tenant or not. However, and even
while reserving such discretion, this
Court has recognised the use of such
discretion against the defendant-tenant
in case of wilful failure or deliberate
default or volitional non-performance.
This Court has also explained the
principles in different expressions by
observing that if the mood of defiance or
gross neglect is discerned, the tenant
may forfeit his right to be heard in
defence. The sum and substance of the
matter is that the power to strike off
defence is considered to be discretionary,
which
is
to
be
exercised
with
circumspection
but,
relaxation
is
reserved for a bonafide tenant like those
in the cases of Miss Santosh Mehta and
Smt. Kamla Devi (supra) and not as a
matter of course. The case of Bimal
Chand Jain (supra) directly related with
Order XV Rule 5 CPC where the tenant
had deposited the arrears admitted to be
due but, failed to make regular deposits
of monthly rent and failed to submit
representation in terms of sub-rule (2) of
Rule 5 of Order XV. The defence was
struck off in that matter with the Trial
Court and the High Court taking the
said provisions of Order XV Rule 5 CPC
as being mandatory in character. Such
an approach was not approved by this
Court while indicating the reserve of
discretion in not striking off defence if,
on the facts and circumstances existing
on record, there be good reason for not
doing so. The common thread running
through the aforesaid decisions of this
Court is that the power to strike off the
defence is held to be a matter of
discretion where, despite default, defence
may not be struck off, for some good and
adequate reason.

11.2. The question of good and
adequate reason for not striking off the
defence despite default would directly
relate with such facts, factors and
circumstances where full and punctual
compliance had not been made for any
bonafide cause, as contradistinguished
from an approach of defiance or
volitional/elective non-performance.
9 All. J.B. Motors Vs. Smt. Hemlata Kapoor & Ors.
1133

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 defendantrespondent 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
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 bonafide manner.
Of course, the question of bonafide 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 landlord- tenant/lessorlessee, 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.

15. Taking the facts of the
present case, it is at once clear that the
defendant-respondent, by his assertions
and conduct, has left nothing to doubt
that he has been steadfast in not making
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
payment of rent/damages, despite being
lessee of the suit shop. The present one
has clearly been the case of volitional
non-performance with nothing left to
guess about the defendant's mood of
defiance. Nothing of any fact or any
circumstance is existing on record to find
even a remote reason for extending any
latitude or relaxation in operation of
Order XV Rule 5 CPC to the present
case. It shall be apposite at this juncture
to also observe that the contentions on
behalf of the defendant-respondent to
the effect that he had made payment of
rent to the alleged erstwhile landlord
Smt.
Sudha
Sharma
and
contra
submissions on behalf of the appellant
that
even
in
the year
1990,
the
defendant-respondent admitted the said
Shri Rajiv Kant Sharma as the owner of
the property as also the factors corelated with these submissions, do not
call for adjudication in this appeal. This
is for two simple reasons: One, that so
far as the fact of volitional nonperformance
by
the
defendantrespondent is concerned, with no cogent
evidence of lawful payment of rent, the
findings of fact by the Trial Court and
the
Revisional
Court
against
the
defendant-respondent stand final and
have not been disturbed even by the
High Court. There appears no reason for
this Court to enter into any factual
inquiry as regards payment of rent to
Smt. Sudha Sharma or otherwise, now in
this appeal. Secondly, so far as any
affidavit
filed
by
the
defendantrespondent in the year 1990, allegedly
admitting Shri Rajiv Kant Sharma as
owner of property is concerned, it may
be a matter of adjudication by the Trial
Court but would not be a matter of
consideration in this appeal. Suffice it to
observe that the present one is a case
very near and akin to that of Hisamul
Islam Siddiqui (supra) wherein, the
learned Single Judge of the same High
Court has approved the order striking
off the defence after finding want of
deposit of the amount of rent, despite the
defendant having not denied his status as
tenant.

16. In the totality of facts and
circumstances, we are clearly of the view
that there was absolutely no reason for
the High Court to have interfered in the
present case, where the Trial Court had
struck off the defence after finding that
there was no evidence on record to show
the payment or deposit of rent in favour
of the plaintiff by the defendant-
respondent. The Revisional Court had
also approved the order of the Trial
Court on relevant considerations. Even
the High Court did not find the pleas
taken by the defendant-respondent to be
of bonafide character, particularly when
survey number of the shop let out to him
was clearly stated in the sale deed
executed in favour of the plaintiff. We
find it rather intriguing that, despite
having not found any cogent reason for
which discretion under Rule 5 of Order
XV CPC could have been exercised in
favour of the defendant-respondent, the
High Court, in the last line of paragraph
45 of the order impugned, abruptly
stated its conclusion that" 'yet the
defendant/tenant
deserves
some
indulgence'.

9. In the Division Bench matter of this
Court reported in 2024 (1) ADJ 1440,
Bhure Khan Warsi vs. Mohd. Israr, the
reference made by the Single Judge in case
of
disputing
the
landlord-tenant
relationship
by
defendant
upon
the
application under Order 15 Rule 5 C.P.C.,
9 All. J.B. Motors Vs. Smt. Hemlata Kapoor & Ors.
1135
the reference has been answered by
Division Bench in paragraph no.31 of the
judgment which is as under:-

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.

(iv) As per the explanation-II of
Order XV Rule 2 C.P.C., the entire
amount admitted by the defendant-lessee
has to be construed as the entire gross
amount whether as rent or compensation
for use and occupation, calculated at the
"admitted rate of rent" for the admitted
period.

(v) The monthly amount due
which had to be paid within one week
after the monthly amount payable
became due was also to be paid at the
"admitted rate of rent".

(vi) The law, as had been laid
down in paragraph no.11 of Pradyuman
Jee vs. Special/Additional District Judge,
Ballia reported in 2008 (71) ALR 892
which had stated that if the defendant
denies the existence of the landlordtenant relationship then 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, is not a
correct law. Order XV Rule 5 of C.P.C.
does not talk about the denial of the
landlord-tenant relationship. It only
talks about "admitted rent".

(vii) As per the judgment of
Kunwar Baldevji and etc. vs. The XI
Additional District Judge, Bulandshahr
& Ors. reported in (2003) 51 ALR 758 if
the amount of rent is not admitted then
it is required to be adjudicated by the
Court. In case, the tenant/defendant
denies any rent to be due, the Court
would be required to decide the same.
Obviously then the Court will have to
adjudicate and arrive at a finding at the
first date of hearing contemplated under
Order XV Rule 5 CPC as to what is the
rent and what is payable. This issue has
to be framed and thereafter adjudicated
upon on the leading of evidence of the
parties.

(viii) If the tenant-defendant
denies the relationship of landlordtenant then as per the judgment of the
Supreme Court in Asha Rani Gupta vs.
Vineet Kumar reported in (2022) 8 ADJ
572 (SC) and as per the provisions of
section 23 of the Provincial Small Cause
Courts Act, 1887, the Court will have to
determine whether the question raised
by the defendant with regard to title of
the plaintiff was a serious one or whether
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
the denial of the title was a question
which was to be determined with the
help of evidence which would be led by
the parties. If the denial was a definite
denial with substantial evidence then the
Court of Small Causes, which did not
have
the
jurisdiction/authority
to
determine the title of the plaintiff, would
have the discretion to return the plaint at
any stage of the proceedings to be
presented before the Court having
jurisdiction to determine the title.

10. It is material to mention that in the
instant matter the Small Cause Suit No.3 of
2016 has been filed in the year 2016 by the
plaintiff-respondents. Petitioner-defendant
has denied from very beginning that
plaintiffs-respondents are not the landlordowner of the property in question rather the
petitioner-defendant is the owner of the
property in question on the basis of
registered sale deed. The application 67 Ga
filed under Order 15 Rule 5 of the C.P.C.
dated 20.1.2023 for striking off the defence
of the defendant has been rejected by the
Judge, Small Causes, recording finding that
the application filed under Order 15 Rule 5
of the C.P.C. cannot be allowed in view of
the
fact
that
petitioner-defendant
is
claiming himself to be the owner on the
basis of the registered sale deed.

11. The revisional court in exercise of
his revisional jurisdiction has set aside the
order of the Judge, Small Cause Court and
again sent the matter back before the Judge,
Small Causes to decide the application filed
under Order 15 Rule 5 of the C.P.C. afresh
which is not sustainable in the eye of law,
as such, the order dated 1.5.2025 passed by
the revisional court is liable to be set aside.

12. So far as the scope of Section 25
of Provincial Small Cause Court Act is
concerned, the perusal of paragraph no.12
of the judgment of Hon'ble Apex Court,
reported in 1963 AIR SC 698, Hari
Shankar vs. Rao Girdhari Lal Chowdhary
will be relevant which is as under:-

"The section we are dealing
with, is almost the same as S. 25 of the
Provincial Small Cause Courts Act. That
section has been considered by the High
Courts in numerous cases and diverse
interpretations have been given. The
powers that it is said to confer would
make a broad spectrum commencing, at
one end, with the view that only
substantial
errors
of
law
can
be
corrected under it, and ending, at the
other with a power of interference a little
better than what an appeal gives. It is
useless to discuss those cases in some of
which the observations were probably
made under compulsion of certain
unusual facts. It is sufficient to say that
we consider that the most accurate
exposition of the meaning of such
sections is that of Beaumont, C.J. (as he
then was) in Bell & Co. Ltd. v. Waman
Hemraj (1) where the learned Chief
Justice, dealing with s. 25 of the
Provincial Small Cause Courts Act,
observed:

"The object of s. 25 is to enable
the High Court to see that there has been
no miscarriage of justice, that the
decision was given according to law. The
section does not enumerate the cases in
which the Court may interfere in
revision, as does s.115 of the Code of
Civil Procedure, and I certainly do not
propose
to
attempt
an
exhaustive
definition of the circumstances which
may justify such interference; but
instances which readily occur to the
mind are cases in which the Court which
9 All. Shashank Sharma Vs. State of U.P. & Anr.
1137
made the order had no jurisdiction or in
which the Court has based its decision
on evidence which should not have
been admitted, or cases where the
unsuccessful party has not been given a
proper opportunity of being heard, or
the burden of proof has been placed on
the wrong shoulders. Wherever the
court comes to the conclusion that the
unsuccessful party has not had a
proper trial according to law, then the
Court can interfere. But, in my
opinion, the Court ought not to
interfere merely because it thinks that
possibly the Judge who heard the case
may have arrived at a conclusion which
the High Court would not have arrived
at."

13.
Considering
the
facts
and
circumstances of the case, the impugned
revisional order dated 1.5.2025, passed by
the Additional District Judge, Court No.8,
District
Bareilly
in
S.C.C.
Revision
No.28/2023 (Hemlata Kapoor and Others
vs. J.B. Motors) is liable to be set aside and
the same is hereby set aside.

14. The petition is allowed. The
Judge, Small Causes is directed to decide
the S.C.C. Suit No.3 of 2016, considering
the pending application under Section 23 of
the Act in the light of the ratio of law laid
down by the Division Bench of this Court
in
Bhure
Khan
Warsi
(supra)
expeditiously, preferably within a period of
6 months from the date of production of the
certified copy of the order, in accordance
with law.
----------
(2025) 9 ILRA 1137
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2025

BEFORE
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Misc. Bail Cancellation Application No.
67 of 2025

Shashank Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sandeep Mishra, Vishvendra Singh

Counsel for the Opposite Parties:
Ankit Srivastava, Ch. Dil Nisar, G.A.

ISSUE FOR CONSIDERATION
Whether the bail granted to accused-opposite
party no. 2 by the Additional Sessions Judge,
Ghaziabad should be cancelled on grounds of
improper consideration of facts and gravity of
allegations.

HEADNOTES
Criminal Law - Criminal Procedure Code,
1973 - Sections - 439, - Indian Penal Code
(IPC) - Sections - 34, 120-B, 147, 323,
342, 386, 411, 504, 506- Bail cancellation
application - filed by informant - seeking
cancellation of the Bail granted to the accused
opposite party no. 2 - passed by the Additional
Sessions Judge
- Applicant pleaded
that
recovery of rupees 8 lakhs from accused and his
role as main accused was ignored - Sessions
Judge allegedly granted bail casually, without
considering seriousness of charges - Opposite
party argued that bail cancellation requires
proof of misuse of liberty, violation of conditions,
or fraud in obtaining bail - Court finds that
recovery
not
supported
by
independent
witnesses - observations in the bail order were
narration of FIR allegations, not findings,
opposite party no.2 has not been granted bail
on the ground of parity - held, No evidence of
misuse of bail, threats, or tampering with
evidence - hence, Bail cancellation application is
rejected. (Para - 7, 8, 9)
Application Allowed. (E-11)

CASE LAW CITED
Ajwar Vs. Waseem and Another, 2024 (10) SCC
768,