# Jagdish Prasad Gupta & Anr v. Smt. Sudha Mehra & Anr

- **Citation:** (2023) 6 ILRA 535
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-19
- **Case number:** Matters Under Article 227 No. 4541 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-prasad-gupta-anr-v-smt-sudha-mehra-anr-50320
- **Pages:** 19

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Order
XV,
Rule
5-applicationstriking of defence-rejection-Incorrect
or illegal advice cannot be a ground to
reject application under Order XV, Rule
5 CPC and issue orders for adjustment of
amount so deposited under Section 30 of
Act of 1972 against monthly deposit of
rent-So far as first part of Order XV, Rule
5 with regard to deposit of arrears of
rent on or before first hearing of suit,
amount so deposited under section 30 of
Act of 1972 can be adjusted, but so far
as second part of Order XV, Rule 5, i.e.
monthly deposit of rent is concerned,
amount so deposited under Section 30
of Act of 1972 cannot be adjusted and it
is mandatory requirement to deposit
same
before
Court
where
suit
is
pending.(Para 1 to 49)

The petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,946 of 64,723. This is a partial read: ask again with offset=39946 for what follows._

6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
535

Under the circumstances, the
High Court has rightly dismissed the writ
petition.

No interference of this Court is
called for.

The
present
Special
Leave
Petition stands dismissed."

21. So far as the judgment of Supreme
Court of India in Red Chilli International Sales
(supra) is concerned, the Court directed the High
Court to consider the reply filed by the petitioner
to the notice under section 148A(b) as well as the
order passed under section 148A(d) of the Act of
1961 as the High Court had refused to examine
the issue in view of the alternative remedy. This
direction by the Supreme Court of India is on the
facts of the case as the issues raised by the
petitioner before the High Court were not
examined. The Supreme Court did not endorse
the view that a writ petition itself would not be
maintainable against the order passed under
section 148A(d) of the Act, 1961 and
consequently directed the High Court to examine
the merits of order.

22. Maintainability of the writ petition
against the order passed under section 148A(d) is
distinct from the scope of adjudication available
qua the order passed under section 148A(d) of
the Act. The limited scope available under
Article 226 of the Constitution of India to
adjudicate an order passed under section
148A(d) of the Act, 1961 would be confined to
existence of the information only, in view of the
scheme of the Act of 1961. A contrary
construction cannot be culled out from the
judgment of the Supreme Court of India in Red
Chilli International Sales (supra).

23. In Anshul Jain (supra) the Supreme
Court did examine the scope of proceedings
under section 148A vis-a-vis reassessment
proceedings under section 148 of the Act to
observe that by the very nature of proceedings
the examination would remain more exhaustive
at the stage of reassessment proceedings with
elaborate remedies available under the statute to
the assessee.

24. The order passed by the Assessing
Officer under section 148A(d) of the Act
regarding existence of information suggesting
that income chargeable to tax has escaped
assessment would otherwise remain subject to
reassessment order passed under section 148 of
the Act. Thus, any observations of the assessing
authority while passing order under section
148A(d) with regard to merits of assessment of
income would remain subject to the order to be
ultimately passed in reassessment proceedings
under section 148 and would not be to the
prejudice of rights and contentions of the
assessee under section 148 as well as
departmental remedies in respect thereof.

25. In view of our deliberations and
discussions held above, we do not find any
merit in the challenge laid to the order of
assessing authority under section 148A(d) of
the Act, 1961, dated 29.03.2023, as well as
the notice issued under section 148 of the
Act, 1961. Subject to the observations
contained in this judgment the writ petition
accordingly fails and is dismissed.
----------
(2023) 6 ILRA 535
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 4541 of 2023

Jagdish Prasad Gupta & Anr. ...Petitioners
Versus
Smt. Sudha Mehra & Anr. ...Respondents

Counsel for the Petitioners:
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Prakhar Tandon, Sri Atul Dayal

Counsel for the Respondents:
Sri Ashutosh Sharma, Sri Sumit Srivastava

A. Civil Law - Code of Civil Procedure,
1908-Order
XV,
Rule
5-applicationstriking of defence-rejection-Incorrect
or illegal advice cannot be a ground to
reject application under Order XV, Rule
5 CPC and issue orders for adjustment of
amount so deposited under Section 30 of
Act of 1972 against monthly deposit of
rent-So far as first part of Order XV, Rule
5 with regard to deposit of arrears of
rent on or before first hearing of suit,
amount so deposited under section 30 of
Act of 1972 can be adjusted, but so far
as second part of Order XV, Rule 5, i.e.
monthly deposit of rent is concerned,
amount so deposited under Section 30
of Act of 1972 cannot be adjusted and it
is mandatory requirement to deposit
same
before
Court
where
suit
is
pending.(Para 1 to 49)

The petition is dismissed. (E-6)

List of Cases cited:
1. Bimal Chand Jain Vs Gopal Agarwal (1981) 0
SSC 347

2. Asha rani Gupta Vs Vineet Kumar (2022) 0
SSC 594

3. Kedar Nath Vs Waqf Sheikh Abdullah
Cheritable Madursa & ors. (2015) SCC Online All
7172

4. Atma Ram Vs Shakuntala Rani (2005) 7 SCC
211

5. Haidar Abbas Vs ADJ & ors. (2006) 1 ADJ 197
All

6. Panaru lal Vs Ganpati Jha (2015) 111 ALR
866 C.M.W.P No 3358 of 2015

7. More Singh Vs Chandrika Prasad, Mukesh
Verma & ors. Vs Harishchandra & ors. (2018) 8
ADJ 128

8. Om Prakas Gupta Vs DJ, Mainpuri & anr..
(2019) 3 AWC 253 \

9. Gangu Vs Smt Alka Arora & anr.. C.M.W.P. No
2725 of 2022

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

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Atul Dayal, learned
Senior Counsel, assisted by Sri Prakhar
Tandon, learned counsel for the petitionersdefendants and Sri Sumit Srivastava,
learned counsel for the respondentsplaintiffs.

2. Present petition has been filed
seeking the following relief:

"i. Set aside the impugned order dated
16.08.2018 passed by learned trial court in
SCC Suit No. 266 of 2007.

ii. Set aside the impugned order dated
15.12.2022 passed by the learned revision
court in SCC Revision No. 120 of 2018."

3. Since, only legal question is
involved in this matter, therefore, with the
consent of parties without inviting for
affidavits, the matter is being decided at the
admission stage itself.

4. Brief facts of the case are as
follows:

5. The original landlord Late Sudha
Mehra filed SCC Suit No. 266 of 2007
against the original tenant Late Munnu Lal
seeking ejectment and recovery of arrears
of rent upon which, defendant-original
tenant has filed written statement in the
year 2010. During the pendency of the suit,
original plaintiff and defendant died and
6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
537
substitution applications had also been
allowed.

6.

Plaintiff-respondent
filed
application 58-Ga dated 09.07.2015 under
Order XV Rule 5, CPC to srtike off the
defence of the petitioner-defendant upon
which, objection paper No. 59-Ga was filed
by the petitioner-defendant. Application 58Ga was allowed vide first impugned order
dated 16.08.2018 upon which, petitionerdefendant preferred SCC Revision No. 120
of 2018 on 27.09.2018. During the
pendency of the revision, petitionerdefendant has also filed application 24-Ga
dated 28.09.2018 seeking permission of the
Revisional Court to deposit the entire
amount of rent due on the ground that due
to incorrect advice of counsel, he has not
deposited the rent as required under Order
XV Rule 5 CPC. The Revisional Court vide
judgment and order dated 15.12.2022 has
dismissed the SCC Revision No. 120 of
2018, hence present petition.

7. Aforesaid facts are undisputed
between the parties.

8. Learned Senior Counsel appearing
for petitioners-defendants submitted that
there is no dispute on the point that from
the date of first hearing to the dismissal of
the revision vide order dated 15.12.2022,
petitioner-defendant has deposited the rent
before the court under Section 30 of the Act
No. 13 of 1972(hereinafter referred to as,
'Act of 1972').

9. He next submitted that under incorrect
advice of the counsel, petitioner-defendant
could not deposit the rent before the SCC
Court and the mistake so committed by the
petitioner-defendant is bonafide due to ill
advice of the counsel. Therefore, it is
required on the part of the Revisional Court
to allow Application 24-Ga and permit the
petitioner-defendant to deposit the rent
before the SCC Court. He firmly submitted
that any order passed under the provision of
Order XV Rule 5 CPC is penal in nature,
therefore, while passing such order, Court
must consider the factum of the bonafide.
In the present case, there is no dispute on
the point that rent was deposited before the
Court under Section 30 of Act of 1972,
therefore, same must have been considered
while deciding the Revisions along with
Application 24-Ga by the Revisional Court.
Any order passed by the Revisional Court
ignoring the bonafide is bad and liable to
be set aside.

10. He further submitted that in Order
XV Rule 5 CPC, word 'may' has been used,
which indicates that the provision is
discretionary in nature and not mandatory.
Therefore, it is required on the part of the
Revisional Court to consider each and
every aspect including the bonafide, i.e.
default made due to willful failure or
deliberate
default
or
volitional
performance. In case it is bonafide, it is
required on the part of the Court not to
strike off the defence.

11. In support of his contention, Sri
Atul Dayal, learned Senior Counsel has
placed reliance on the judgment of Apex
Court in the matter of Bimal Chand Jain
Vs. Gopal Agarwal: 1981 0 Supreme(SC)
347, Asha Rani Gupta Vs. Vineet Kumar:
2022 0 Supreme(SC) 594 and also
judgment of this Court in the matter of
Kedar Nath Vs. Waqf Sheikh Abdullah
Cheritable Madursa and Others.: 2015
SCC Online All 7172.

12. Per contra, Sri Sumit Srivastava,
learned counsel for the respondent-plaintiff
vehemently opposed the submission made
538 INDIAN LAW REPORTS ALLAHABAD SERIES
by learned Senior Counsel appearing for
petitioners-defendants and submitted that
as provided under Order XV Rule 5 CPC
and also in catena of judgments, it is very
well settled that any amount so deposited
under Section 30 of Act of 1972 can be
adjusted against the arrears of rent due
before the first hearing of the suit, but so
far as monthly deposit of rent is concerned,
the same cannot be adjusted. It is
undisputed in the present case that written
statement was filed in the year 2010 and
monthly amount of rent has never been
deposited before the SCC Court rather it
was deposited under Section 30 of Act of
1972. Therefore, same cannot be adjusted
and under such fact of the case, there is no
illegality in the impugned orders dated
16.08.2018 and 15.12.2022 and petition is
liable to be dismissed.

13. In support of his contention, Sri
Sumit Srivastava has placed reliance upon the
judgment of Apex Court in the matter of
Atma Ram Vs. Shakuntala Rani: (2005) 7
SCC 211. He also placed reliance upon
judgments of this Court in the matter of
Haidar Abbas Vs. Additional District Judge
and others: 2006(1) ADJ 197(All), Panaru
Lal Vs. Ganpati Jha: 2015(111) ALR 866,
C.M.W.P. No. 3358 of 2015: More Singh Vs.
Chandrika Prasad, Mukesh Verma and Ors.
Vs. Harishchandra and Ors.: 2018(8)
ADJ128, Om Prakas Gupta V. District
Judge, Mainpuri and another: 2019 (3)
AWC 253, C.M.W.P. No. 2725 of 2022:
Gangu Vs. Smt. Alka Arora And Another.

14. He also pointed out that any ill
advice of counsel cannot be a ground to
reject the application under Order XV Rule
5 CPC.

15. I have considered submission
made by learned counsel for the parties,
perused Order XV Rule 5 CPC as well as
judgments relied upon by counsels for the
parties.

16. The issues before the Court are to
decide as to whether any amount so
deposited under Section 30 of the Act of
1972 may be adjusted in compliance of
Order XV Rule 5 CPC against monthly
deposit of rent after first date of hearing of
the suit and effect of wrong or incorrect
advice of counsel in case of default in
deposit.

17. From the perusal of Order XV
Rule 5 CPC, it is apparently clear that it is a
beneficial legislation in favour of tenant
which consists of two parts to be complied
with by the tenant. The first part is arrears
of rent admitted, which has to be deposited
on or before first hearing of the suit and
second part is monthly amount of rent,
admitted or not admitted to be deposited
during the continuation of suit on monthly
basis within a week from the date of
accrual.

18. Present controversy is arising out
of interpretation of Order XV Rule 5, CPC,
therefore, the same is being quoted
hereinbelow:

"5. 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
6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
539
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 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."

19.

For
present
controversy,
Explanation 2 and 3 are relevant.

20. Explanation 2 provides that any
amount so deposited under Section 30 of
the Act of 1972 shall also be adjusted while
depositing the arrears of rent on or before
the first hearing of the suit. Explanation 3 is
with regard to monthly amount of rent due
and certainly, same does not include the
provision of Section 30 of the Act of 1972.
Therefore, intention of the legislation is
very much clear that any amount deposited
under Section 30 of the Act of 1972 can be
adjusted against the arrears of rent due to
be deposited on or before first hearing of
the suit, but the same cannot be adjusted
against monthly deposit of rent due, which
is to be deposited before the Court, where
the suit is pending. Therefore, there is no
ambiguity or infirmity in the language of
the statutory provision of Order XV Rule 5
CPC. It is a beneficial legislation and to get
the benefit of that, it is required on the part
of tenant to comply the same in verbatim
and he cannot be permitted to read between
the lines. Therefore, in light of provisions
of Order XV Rule 5 CPC, any amount so
deposited under Section 30 of the Act of
1972 before Court cannot be adjusted
540 INDIAN LAW REPORTS ALLAHABAD SERIES
against the monthly deposit of rent required
before the SCC Court.

21. Now I am coming to the
judgments relied upon by the learned
counsel for the petitioner-defendant.

22. The first judgment relied upon by
learned Senior Counsel is a judgment of
Apex Court in the matter of Bimal Chand
Jain(Supra), relevant paragraph of which
is quoted hereinbelow:

"6. It seems to us on a comprehensive
understanding of Rule 5 of Order XV that
the true construction of the Rule should be
thus. Sub-rule (1) obliges the defendant to
deposit, at or before the first hearing of the
suit, the entire amount admitted by him to
be due together with interest thereon at the
rate of nine per cent per annum and further,
whether or not he admits any amount to be
due, to deposit regularly throughout the
continuation of the suit the monthly amount
due within a week from the date of its
accrual. In the event of any default in
making any deposit;

"the
court
may
subject
to
the
provisions of sub-rule (2) strike off his
defence". We shall presently come to what
this means. Sub-rule (2) obliges the court,
before making an order for striking off the
defence to consider any representation
made by the defendant in that behalf. In
other words, the defendant has been vested
with
a
statutory
right
to
make
a
representation to the court against his
defence being struck off. If a representation
is made the court must consider it on its
merits, and then decide whether the defence
should or should not be struck off. This is a
right expressly vested in the defendant and
enables him to show by bringing material
on the record that he has not been guilty of
the default alleged or if the default has
occurred, there is good reason for it. Now,
it is not impossible that the record may
contain such material already. In that
event, can it be said that sub-rule (1)
obliges the court to strike off the defence?
We must remember that an order under
sub-rule (1) striking off the defence is in the
nature of a penalty. A serious responsibility
rests on the court in the matter and the
power is not to be exercised mechanically.
There is a reserve of discretion vested in
the court entitling it not to strike off the
defence if on the facts and circumstances
already existing on the record it finds good
reason for not doing so. It will always be a
matter for the judgment of the court to
decide whether on the material before it,
notwithstanding
the
absence
of
a
representation under sub- rule (2), the
defence should or should not be struck off.
The word "may" in sub-rule (1) merely
vests power in the court to strike off the
defence. It does not oblige it to do so in
every case of default. To that extent, we are
unable to agree with the view taken by the
High Court in Puran Chand (supra). We
are of opinion that the High Court has
placed an unduly narrow construction on
the provisions of clause (1) of Rule 5 of
Order XV."

23. In the said judgment, the ratio of
law is that, while passing any order under
Order XV Rule 5 CPC, it is required on the
part
of
the
Court
to
consider
the
representation. In case representation has
not been filed, even though, Court is
required to consider all relevant facts
available on record. In the present case, it is
not the case of the petitioner-defendant that
the material so available have not been
considered, but contrary to that, after
considering each and every fact, Courts
have taken a view that any such application
for adjustment of amount so deposited
6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
541
under Section 30 of the Act of 1972 and
permission
to
tenant
to
fulfill
the
requirement of Order XV Rule 5 CPC is
not permissible under the law. Therefore,
this judgment is of no use in the present
controversy.

24. Learned Senior Counsel has also
relied upon another judgment of this Court
in the matter of Kedar Nath(Supra),
relevant paragraphs of the said judgment
are quoted hereinbelow:

"4.
The
premises
No.
205/46,
Minhajpur, Dr. Katju Road, Allahabad
belongs to the frist respondent, a suit for
eviction, arrears of rent and damages was
instituted. During the pendency of the suit,
an application under Order XV Rule 5
C.P.C. was filed with the allegation that the
suit is of 1999 but no amount was deposited
on the first date of hearing nor regular
deposit was made, thereafter. The applicant
contested stating that the entire amount
was deposited on the first date of hearing.
The trial court allowed the application,
struck off the defence of the applicant. The
revisional court affirmed the order passed
by the trial court.

5. The learned counsel for the
applicant would submit that the courts
below have failed to record the first date of
hearing, written statement was filed on 13
October 2008 and on the said date a sum of
Rs. 4000/- was deposited which included
the rent from January 1996 to September
2008, interest and expenses, further, it is
sought to be urged that even presuming that
there was some delay in depositing the
subsequent sums, even then the application
under Order XV Rule 5 could not have been
allowed,
admittedly
the
respondentlandlord received the entire sum. It is,
therefore, submitted that the purpose of
Order XV Rule 5 is to ensure the payment
of the rent and not being a penal provision
to punish the defendant.

8. The Supreme Court in Bimal Chand
Jain Versus Sri Gopal Agarwal1, on
considering the provisions of Order XV
Rule 5, as applicable to U.P., observed that
the sub-rule (1) obliges the defendant to
deposit, at or before the first hearing of the
suit, the entire amount admitted by him to
be due together with interest, thereon, at
the rate of nine per cent per annum,
whether or not he admits any amount to be
due. Sub-rule (2) obliges the court, before
making an order for striking off the defence
to consider any representation made by the
defendant in that behalf. In other words,
the defendant has been vested with a
statutory right to make a representation to
the court against his defence being struck
off.

9. Sub-rule (1) obliges the court to
strike off the defence which is in the nature
of a penalty. A serious responsibility,
therefore, rests on the court in the matter,
the
power
is
not
to
be
exercised
mechanically. There is a reserve of
discretion vested in the court entitling it not
to strike off the defence if on the facts and
circumstances already existing on the
record it finds good reason for not doing
so.

10. The word "may" in sub-rule (1)
merely vests power in the court to strike off
the defence. It does not oblige it to do so in
every case of default. If on the facts and
circumstances already existing on the
record it finds good reason for not doing
so, the court is not obliged to strike off the
defence, merely in the absence of such
representation under sub-section(2).

11. This Court in Shiv Balak Singh
Versus A.D.J., XI, Lucknow2, held that the
provision of Order XV Rule 5 is
discretionary.
542 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. Even though technically at the time
of arguments also, plea of Order XV, Rule
5, C.P.C. could be raised, however in
normal course such an application should
have been filed (and is normally filed)
before the start of the evidence."

12. In Pramod Mehrotra and others
Versus Ram Shankar Chaurasia and
others3 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.

13. Again in Sudhir Kumar Gupta
Versus Dr. S.K. Raj and another4, 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.

14. In Pyare Lal Versus Distrit Judge,
Lucknow and others5 wherein, the Court
allowed the deposit of rent upon imposing
cost.

15. In Dr. Ram Prakash Mishra Versus
Additional
District
Judge,
Etah
and
another6, 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.

16. 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 v. Smt. Sahodra Devi, 1996(2)
ARC 406)."

25. In the aforesaid judgment, the
dispute was about the first date of hearing
of the suit and the Court while considering
different judgments has taken a view that
Court is not bound to strike off the defence
in every case. This judgment would also
not come in the rescue of the petitionerdefendant for the very simple reason that in
the present matter, there is no dispute on
the facts and it is very well admitted. The
issue was, as to whether any amount so
deposited under Section 30 of the Act of
1972 may be adjusted against monthly
deposit of rent or not and further, whether
permission may be granted to tenant to
fulfill the requirement of Order XV Rule 5
CPC.

26. Learned Senior Counsel also
placed reliance upon the judgment of Apex
Court in the matter of Asha Rani
Gupta(Supra),
relevant
paragraphs
of
which are quoted hereinbelow:

"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
6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
543
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 subrule (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.
17. With respect, the said conclusion of the
High Court could only be said to be an
assumptive one, being not supported by any
reason. In paragraph 44, of course, the
High Court observed with reference to the
decisions
of
this
Court
that
the
discretionary power must be exercised with
great circumspection but, such enunciation
by this Court cannot be read to mean that
whatever may be the fault and want of
bonafide in the defendant/tenant, he would
be readily given the so-called 'indulgence'
of not striking off defence. Such an
approach is neither envisaged by the
statutory provisions nor by the referred
decisions. In fact, such an approach would
simply render the relevant provisions of law
rather
nugatory.
The
expected
circumspection would require the Court to
be cautious of all the relevant facts and the
material on record and not to strike off the
defence as a matter of routine. However,
when a case of the present nature is before
the Court, disclosing deliberate defiance
and volitional/elective non-performance,
the consequence of law remains inevitable,
that the defence of such a defendant would
be struck off."

27. I have perused the abovesaid
judgment. The Court is of the view that in
case of default, bonafide of the defendant
544 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be considered based upon the facts
of each case. In this case, facts of filing of
application under Order XV Rule 5 is
entirely different and same is recorded in
paragraph 4.5. of the judgment.

"4.5 Thereafter, the plaintiff-appellant
filed an application with reference to the
provisions of Order XV Rule 5 CPC as
applicable to the present case and prayed
that
the
defence
of
the
defendantrespondent be struck off, for the reason that
defendant had not deposited any rent and
no evidence was adduced by him to
establish any payment of rent. This
application was contested by the defendantrespondent with the submissions that the
provisions of Order XV Rule 5 CPC were
applicable only to a case where the
defendant would accept the plaintiff as his
landlord; and in the present case, he had
taken the special plea that the plaintiff was
not the landlord or the owner of the suit
shop and had clearly averred that there
was no relationship of landlord and tenant
between the plaintiff and defendant. The
defendant-respondent
also
referred
to
certain rent receipts said to have been
issued by the said Smt. Sudha Sharma.

28. From the perusal of para 4.5, it is
apparently clear that in that case, defendant
has
disputed
the
landlord-tenant
relationship and that he was not responsible
for depositing the rent. Ultimately, Court
has taken a view that in such matters
bonafide has to be considered and Courts
should take a liberal view while striking off
the defence, but in the present case, fact
was entirely different. There is no dispute
on the landlord-tenant relationship and
further monthly rent has been deposited
under Section 30 of the Act of 1972, but
not before the Court where the suit is
pending. Therefore, the ratio of law laid
down by the Court is not applicable in the
present case. This issue was before the
Apex Court in the matter of Atma
Ram(Supra), but it appears that the said
judgment was not placed before the Apex
Court in the matter of Asha Rani
Gupta(Supra)

29. Now I am coming to the
judgments relied upon by the learned
counsel for the respondent-plaintiff.

30.

Learned
counsel
for
the
respondent-plaintiffs has placed reliance
upon the judgment of Atma Ram(Supra).
In the said case, same issue was before the
Court for consideration and Court has
framed the issue in paragraph 7 of the
judgment
and
the
same
is
quoted
hereinbelow:

"7. The core question, therefore,
which arises for consideration is whether
the appellant defaulted in payment of rent
inasmuch as he had not paid or tendered or
deposited the rent for the aforesaid period
in the manner required by law. The
question also arises whether the deposit of
rent under the Punjab Act can be construed
to be a valid deposit under the Act."

31. The issue referred in the abovesaid
paragraph was replied in paragraph 21 of
the judgment, which is being quoted
hereinbelow:

"21. The Act, therefore, prescribes
what must be done by a tenant if the
landlord does not accept rent tendered by
him within the specified period. He is
required to deposit the rent in the Court of
the Rent Controller giving the necessary
particulars as required by sub-section (2)
of Section 27. There is, therefore, a specific
provision which provides the procedure to
6 All. Jagdish Prasad Gupta & Anr. Vs. Smt. Sudha Mehra & Anr.
545
be followed in such a contingency. In view
of the specific provisions of the Act it would
not be open to a tenant to resort to any
other procedure. If the rent is not deposited
in the Court of the Rent Controller as
required by Section 27 of the Act, and is
deposited somewhere else, it shall not be
treated as a valid payment/tender of the
arrears of rent within the meaning of the
Act and consequently the tenant must be
held to bein default.

32. From the perusal of the question
so framed and answer given by the Court, it
is apparently clear that amount has to be
deposited in the Court of Rent Controller,
in the present case, SCC Court and any
amount deposited somewhere else shall not
be treated as valid payment or tender of
arrears of rent within the meaning of the
Act. The same fact is here that amount so
deposited under Section 30 of the Act of
1972 cannot be treated to be deposited as
provided under Order XV Rule 5 CPC.

33. In the matter of Asha Rani
Gupta(Supra) alongwith background of
fact that landlord-tenant relationship has
been denied and amount so required under
Order XV Rule 5 CPC has not been
deposited, Apex Court has laid down a
general principle of law that while dealing
with the applications filed under Order XV
Rule 5 CPC bonafide of the application has
to be considered, whereas in the matter of
Atma Ram(Supra), issue was that in case
money deposited under the provision of Act
before any other court can be adjusted or
not and Court has opined that such amount
cannot be adjusted. In the present case,
issue is squarely covered by the judgment
of Atma Ram(Supra), therefore, the
general law laid down by the Apex Court in
the matter of Asha Rani Gupta(Supra) shall
not be applicable and this case has to be
governed by the law laid down by the Apex
Court in the matter of Atma Ram(Supra).

34.

Learned
counsel
for
the
respondent-plaintiffs
has
also
placed
reliance upon the judgment Division Bench
of this Court in the matter of Haidar Abbas
(Supra), in which ration of law laid down
by the Apex Court in the matter of Atma
Ram(Supra) has been followed. Relevant
paragraph of the said judgment is quoted
hereinbelow:

"21. It, therefore, follows that when
the "entire amount admitted by him to be
due" is deposited at or before the first
hearing of the suit, the amount deposited
under Section 30 of the Act, if any, can be
deducted but while depositing the "monthly
amount due" throughout the continuation of
the suit, the amount deposited under
Section 30 of the Act cannot be deducted.
Needless to say 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 the period stipulated in
Order XV Rule 5 CPC.

22. The Supreme Court in the case of
Atma Ram Vs. Shakuntala Rani (2005) 7
SCC 211 had the occasion to examine
whether the tenant defaulted in payment of
rent if he had not paid or tendered or
deposited the rent in the manner required
by law and whether the deposit of rent
under some other Act could be construed to
be a valid deposit. The tenant had sent a
money-order remitting the rent but the
landlord refused to accept it and, therefore,
the tenant deposited the rent for the period
from 1st February, 1992 to 31st January,
1995 in January, 1995 under the provisions
of the Punjab Relief Indebtedness Act, 1934
(called the ''Punjab Act'). The landlord,
however, sent a notice dated 16th May,
546 INDIAN LAW REPORTS ALLAHABAD SERIES
1996 to the tenant to pay arrears of rent.
The tenant on 20th July, 1996 deposited the
rent for the period February, 1995 to 12th
July, 1996 under Section 27 of the Delhi
Rent Control Act, 1961 (called the ''Delhi
Act'). The arrears of rent from 1st
February, 1992 to 31st January, 1995 was
not included since the tenant had deposited
the same under the Punjab Act. Section 27
of the Delhi Act provides that where the
landlord does not accept any rent tendered
by the tenant, the tenant may deposit such
rent with the Rent Controller in the manner
provided for in that section. The landlord
then filed an application for eviction of the
tenant under Section 14 (1) (a) of the Delhi
Act. The Supreme Court after considering a
number of its earlier decisions in Kuldeep
Singh Vs. Ganpat Lal (1996) 1 SCC 243,
Jagat Prasad Vs. Distt. Judge, Kanpur
1995 Supp (1) SCC 318, M. Bhaskar Vs. J.
Venkatarama Naidu (1996) 6 SCC 228,
Ram Bagas Taparia Vs. Ram Chandra Pal
(1989) 1 SCC 257, and E. Palanisamy Vs.
Palanisamy (2003) 1 SCC 123 observed:-

"It will thus appear that this Court has
consistently taken the view that in the Rent
Control legislations if the tenant wishes to
take advantage of the beneficial provisions
of the Act, he must strictly comply with the
requirements of the Act. If any condition
precedent is to be fulfilled before the
benefit can be claimed, he must strictly
comply with that condition. If he fails to do
so he cannot take advantage of the benefit
conferred by such a provision.

The Act, therefore, prescribes what
must be done by a tenant if the landlord
does not accept the rent tendered by him
within the specified period. He is required
to deposit the rent in the Court of the Rent
Controller giving the necessary particulars
as required by sub-section (2) of Section
27. There is, therefore, a specific provision
which provides the procedure to be
followed in such a contingency. In view of
the specific provisions of the Act it would
not be open to a tenant to resort to any
other procedure. If the rent is not deposited
in the Court of the Rent Controller as
required by Section 27 of the Act, and is
deposited somewhere else, it shall not be
treated as a valid payment/tender of the
arrears of rent within the meaning of the
Act and consequently the tenant must be
held to be in default.

We are, therefore, satisfied that the
High Court was right in holding that the
appellant had failed to pay/tender arrears
of rent for the period 1-2-1992 to 31-11995.
The
deposit
made under
the
provision of the Punjab Act was of no avail
in view of the express provision of Section
27 of the Act."

23.