# Kunwar Baldevji v. The XI A.D.J., Bulandshahr and others

- **Citation:** (2003) 2 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-27
- **Case number:** Civil Misc. Writ Petition No. 37571 of 2002
- **Bench:** A.K. Yog, Ghanshyam Dass
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-baldevji-v-the-xi-a-d-j-bulandshahr-and-others-40090
- **Pages:** 6

## Headnote

Code of Civil Procedure- Order 15 rule 5-
first dated of Hearing- what is- the
tenant denied the liability of rent as well
as the relationship- when the court is
considering the liability of rent in future
should be treated as admitted rent-
answered accordingly.

Held- Para 11 and 16 Printed

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

Our answer to the question referred to
us is that order 15 Rule 5 Code of Civil
Procedure does not contemplate that
when Court decides the question of
liability of payment of rent in future, the
same should be treated as the admitted
rent due within the meaning of the
expression contained under order 15
Rule 5 Code of Civil Procedure.
Case law discussed:
2001 (44) ALR 804, 1995 AWC 56
1984 (2) ARC-144, 1983 (2) ARC-453
1979 AWC-183, 1976 ALJ 494 Pra 6
1980AWC-124, 1978 ALJ-1310
1985 (2) ARC-21

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
316
13. The appellant is on bail. He shall
be taken into custody to serve out the
sentence.

14. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Lalitpur, who shall cause the appellant
Bhai Khan arrested and sent to jail to
serve out the sentence awarded to him. He
shall also submit compliance report
within two months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.3.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE GHANSHYAM DASS, J.

Civil Misc. Writ Petition No. 37571 of 2002

Kunwar Baldevji

...Petitioner
Verses
The
XI
Additional
District
Judge,
Bulandshahr and others ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri Som Narain Mishra

Counsel for the Respondents:
Sri R.B. Singhal

Code of Civil Procedure- Order 15 rule 5-
first dated of Hearing- what is- the
tenant denied the liability of rent as well
as the relationship- when the court is
considering the liability of rent in future
should be treated as admitted rent-
answered accordingly.

Held- Para 11 and 16 Printed

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

Our answer to the question referred to
us is that order 15 Rule 5 Code of Civil
Procedure does not contemplate that
when Court decides the question of
liability of payment of rent in future, the
same should be treated as the admitted
rent due within the meaning of the
expression contained under order 15
Rule 5 Code of Civil Procedure.
Case law discussed:
2001 (44) ALR 804, 1995 AWC 56
1984 (2) ARC-144, 1983 (2) ARC-453
1979 AWC-183, 1976 ALJ 494 Pra 6
1980AWC-124, 1978 ALJ-1310
1985 (2) ARC-21

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard Sri Rajesh Tandon, Senior
Advocate along with Sri Som Narain
Misra, Advocate on behalf of the
petitioners (tenants) and Sri R.B. Singhal,
Advocate on behalf of the contesting
respondents (landlord).

2. Above Writ Petitions have been
listed, before us on a reference made by a
learned single Judge. Referring order
dated September 10, 2002 is extracted:

"I have heard the learned counsel for
both sides.

Order 15 Rule 5 CPC as added in
U.P. requires that the tenant/defendant
should deposit the arrears of rent which is
admitted by him to be due with interest at
the first hearing. He should also deposit
future rent month to month during the
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2 All] Kunwar Baldevji V. The XI A.D.J., Bulandshahr and others
317
pendency of the suit. Failing such deposit
the defence in the suit is liable to be
struck off.

In
this
particular
case,
the
tenant/petitioner in his written statement
has denied the relationship of the
landlord and tenant, and therefore
obviously no rent could be said to be
admittedly due. He did not deposit any
amount towards rent. His defence was
struck off on the finding that relationship
of the landlord and tenant existed.

Learned counsel for the petitioner
relies upon the clear words of Order 15
Rule 5 as interpreted by a decision of this
Court in the case of Rakesh and company
Vs. Heera Lal reported in 2001 (44) ALR
804 for the proposition that only such
amount is liable to be deposited which is
admitted to be due.

On the contrary, learned counsel for
the respondents, Sri R.B. Singhal submits
that words "rent admitted by the tenant to
be due" used in Order 15 Rule 5 CPC
should be interpreted to mean "rent found
by the Court to be due although not
admitted by the tenant to be due."

Prima
facie
the
Rules
of
interpretation of statues do not permit of
doing such violence to the words of the
statute, as to make their meaning just
reverse of what the language suggests.
Exceptions may be possible (a) where the
language used in a statute is ambiguous
or capable of two interpretations or (b)
where
but
for
such
interpretation
absurdity or serious anomaly would
result.

However, learned counsel for the
respondent relies certain single Judge
decisions in support of his contention. The
decisions are as follows:

(i) 1995 AWC 56 Jai Chand Gangwar
Vs. IIIrd A.D.J.
(ii) 1984 (2) ARC 144 Guru Charan Lal
Vs III A.D.J.
(iii) 1983 (2) ARC 45 Kishan Lal Vs. Ist
A.D.J.
(iv) 1979 AWC 183 Thakur Prasad Vs.
Guru Prasad

"--------

of the above the case of Guru
Charan and the case of Kishan Lal do not
deal with the issue directly. The other two
cases namely Jai Chand Gangwar and
Thakur Prasad do support the respondent.
However the only reason that can be spelt
out in support of the conclusion or
interpretation of Order 15 Rule 5,
appears to be the anxiety on part of the
learned judges that the tenant may not
deny the liability to pay rent and drag on
the proceeding arrears of rent, and (2)
secondly regarding the current rent. Both
these can be avoided only by denial of the
landlord's title, which is highly risky for
any tenant as it gives another ground for
eviction. Besides as stated above the
language of the statutory provision does
not permit of the interpretation. And non
of the two decisions aforesaid have
considered the said language while giving
the interpretation. To my mind the
aforesaid anxiety would not be sufficient
justification on part of the Court to adopt
an interpretation which is just reverse of
the
statutory
language.
In
the
circumstances being unable to agree with
the decision in the two cases of Jai Chand
Gangwar and Thakur Prasad, I refer the
following question for consideration by a
larger Bench;
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
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"Whether the defence can be struck
of under Order 15 Rule 5 CPC for nondeposit of rent which is not admitted to be
due despite the express words to the
contrary in that statutory provision?"

Let the papers of this case be placed
before the Hon'ble the Chief Justice for
appropriate orders.

Further proceedings in SCC Suit
No.2 of 2002 will remain stayed till
further orders."

To answer the 'referred question' we
take Kunwar Baldav Ji Vs. XI A.D.J. and
others.

3. Dr. Subodh Mohan, Plaintiffrespondent No.3- filed S.C.C. Suit No. 2
of 2002 (Dr. Subodh Mohan Versus
Kunwar
Baldevji)
for
eviction
and
possession (apart from other usual reliefs)
in the Court of Judge Small Causes on the
ground that Defendant-Petitioner Kunwar
Baldev
Ji
was
his
tenant
of
the
accommodation described in the plaint of
the said suit. The defendant, on the other
hand, denied landlord-tenant relationship
and contended that he admits no rent to be
due under Order 15 Rule 5, Code of Civil
Procedure.

4. After parties had exchanged
pleadings, the plaintiff filed an application
(Annexure 1 to the Writ Petition) before
the trial court-praying that defence of the
tenant was liable to be struck-of since the
tenant had made no deposit and that the
defence be struck off at the time of final
decision
of
the
suit.
Tenant
filed
objections dated 27.5.2002 (Annexure 1
to the supplementary Affidavit) and also
an application dated 27.5.2002/ Annexure
2 to the Writ Petition praying for framing
and to decide as preliminary issue
whether defence was liable to be struck
off under Order 15 Rule 5, Code of Civil
Procedure before parties proceeded to
lead evidence on other issues.

5. The trail Court accepted the
contention of the plaintiff, proceeded to
decide issue under Order 15 Rule 5 Code
of Civil Procedure and found that the
tenant
failed
to
comply
with
the
conditions contained under Order 15 Rule
5 Code of Civil Procedure; and hence his
defence was liable to be struck off.

6. The tenant, being aggrieved, filed
revision under section 25, Provincial
Small Causes Court Act. The said
revision was also dismissed by the Court
below. Consequently, the tenants have
come before this Court by filing present
three writ petitions.

7. At the admission stage, learned
single
Judge
referred
afore
quoted
question to larger bench.

8. The Hon'ble the Chief Justice thus
nominated this bench to decide the said
referred question.

9. The aforesaid question, we may
note, need no further deliberations as
Division Bench of this Court had already
answered it. Order 15 Rule 5 Code of
Civil Procedure, as amended in the State
of U.P., is reproduced below-

"5. Striking off defence on nondeposit of admitted rent, etc.- (1) In any
suit by a lessor for the eviction of a lessee
from any immovable property after the
determination of his lease, and for the
recovery from him of rent in respect of the
period of occupation thereof during the
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2 All] Kunwar Baldevji V. The XI A.D.J., Bulandshahr and others
319
continuance
of
the
lese,
or
of
compensation for the use and occupation
thereof, whether instituted before or after
the commencement of the Uttar Pradesh
Civil Laws Amendment Act, 1972, the
defendant shall, at or before the first
hearing of the suit (or in the case of a suit
instituted before the commencement of the
said Act, the first hearing after such
commencement) deposit the entire amount
of rent or compensation for use and
occupation, admitted by him to be due,
and thereafter throughout the continuance
of the suit, deposit regularly the amount
of monthly rent, or compensation for use
and occupation, due at the rate admitted
by him, and in the event of any default in
this regard, the Court may, unless after
considering any representation made by
him in that behalf it allows him further
time on security being furnished for the
amount, refuse to entertain any defence
or, as the case may be strike off his
defence.

(2) The provisions of this rule are in
addition to and not in derogation of
anything contained in Rule 10 of Order
XXXIX.."

10. Sri Rajesh Tandon, Senior
Advocate, appearing for the Tenant
Petitioner referred to the following
decisions-

1. Ladly Prasad Vs. Ram Shah
Billa 1976 ALJ 494 Pr 6 (DB)

"---- If, however, the defendant does
not admit that any amount is due to the
plaintiff as rent or damages for use and
occupation, he need not make any deposit.
At this stage the court is not required to
decide the questions whether any amount
is really due and whether the lease has
been validly terminated. -----"

2. Sri Surendra Nath Dubey Vs.
Smt. Shakuntla Devi, 1980 AWC 124
Pr.10

"----As the defendant in this case did
not admit that any amount by way of rent
or compensation for use and occupation
of the premises was due from him at the
time when the first hearing took place on
16th of September, 1976, no question of
his making a representation seeking
further time to make such deposit, arose-"

3. Thakur Prasad @ Bhola Nath
Vs. Guru Prasad 1979 AWC 183 Pr.5

"In a case like the present, it is
always necessary for a court to determine
the question of relationship of landlord
and tenant before striking out the defence.
It the court finds that the plea of the
defendant to strike off the defence is
untenable and that such a recording a
finding to that effect and thereafter in
making an order striking off the defence
under Order XV Rules 5 C.P.C. is
adopted, that would discharge a frivolous
plea which may be taken to avoid
consequences of Order XV Rule 5 C.P.C.
....."

4. Ami Singh Vs. Prakashwati
Verma 1978 ALJ 1310 Pr.5 K.N. Singh,
J.

"---At that stage, the Court is not
required to decide the question whether
any amount is really due and whether the
lease has validly been terminated. The
Court cannot compel the defendant to
deposit the amount claimed by the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
320
plaintiff if the defendant does not admit
any amount due from him."

5. Hoob Lal Vs. District Judge
Mirzapur and others 1985 (2) ARC 21Pr.4. V.K. Khanna, J.

"----The provisions of Order XV,
Rule 5 Civil Procedure Code apply when
the defendant admits his liability for
payment of rent to the landlord. As has
been stated above in this case the
petitioner-defendant does not admit his
liability to pay rent to the plaintiff
landlord the provisions of Order XV, Rule
5, Civil Procedure Code will have clearly
no application the present case and the
impugned orders passed by the Judge
Small Causes Court and the District
Judge Mirzapur are liable to be quashed."

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

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

13. In this context we may refer the
case of Hub Lal (supra) and observations
made by the Division Bench of our Court
in the case of Ladly Prasad (Pr.6),
quoted above.

The
learned
Single
Judge
has
referred to the two judgments of the
learned Single Judge, namely, Gur
Charan Lal (supra) and Kishan Lal
(supra)
and
observed
that
these
judgments are not relevant. However,
other two judgments were referred to in
the referring order. We find that Division
Bench judgment in the cases of Ladly
Prasad (supra) and Hub Lal now relied
upon on behalf of tenant were not brought
to the notice of the Learned Single Judge.

14. Learned counsel for the landlord
has placed reliance on the following
decisions-

(i) M/S Rakesh & Company and
others Vs. M/s Hira Lal and Sons, 2001
(44) ALR 840. Janardan Sahai, J.

(ii) Jai Chandra Gangwar Vs. IIIrd
Additional District Judge, Farrukhabad,
AWC 1995-A.B. Srivastava, J.

(iii) Ashma Bibi Vs. Ahsan Ali and
another, 1990 (1) ARC 48- M.P. Singh, J.

(iv) Guru Charan Lal Vs. IIIrd
Additional District Judge, Farrukhabad
and others, Allahabad Rent Cases, 1984
(2)- R.B. Lal, J.
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2 All] Ram Jai Shri V. State of U.P. and others
321

(v) Sri Kishan Lal Vs. Ist Additional
District Judge, Saharanpur 1983 (2) ARC
453. U.C. Srivastava, J.

(vi) Maqsood Ali Vs. Shamsher
Khan, 1983(2) ARC 319- K.C. Agarwal,
J.

(vii) Thakur Prasad alias Bholanath
Vs. Gur Prasad, AWC 1979 183-K.C.
Agrawal, J.

15. As already indicated earlier in
our order the aforesaid judgments have no
relevance to the question referred to us.

Writ petition is yet to be decided by
the learned Single Judge.

16. Our answer to the question
referred to us is that order 15 Rule 5 Code
of Civil Procedure does not contemplate
that when Court decides the question of
liability of payment of rent in future, the
same should be treated as the admitted
rent due within the meaning of the
expression contained under order 15 Rule
5 Code of Civil Procedure.

Papers returned with our answer for
decision
of
the
Writ
Petition
by
appropriate bench.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 41124 of 2002

Ram Jai Shri,

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri S.P. Singh
S.C.

Mines and Mineral Rules Rule-72-Grant
of lease for excavating building stone,
gitti, bolder and mild stone-renewal
application of erstwhile lease holders
rejected- application for grant of fresh
leave invited and granted in favour of
petitioner - cannot be questioned unless
it
exceed
the
limit
of
restriction
contained in rule 10.

Held- Para 8

Vinod Kumar was the first applicant in
pursuance of the notification dated
01.03.2001 but since he did pursue the
matter further, the grant in favour of
Ram Jai Shri cannot be questioned or set
aside. Bharat Lal was not left with any
surviving interest in the area. There is no
bar in holding several mining leases in
the district except the restriction in Rule
10 which provided that the maximum
area for mining else should not cover a
total area of thirty acres. There is
nothing on record to show that the total
area covered or held by petitioner
exceeds thirty acres.
Case Law discussed:
2000(I) AWC-433

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Dr. R.G. Padia assisted by
Sri Prakash Padia for petitioner and Sri
S.P. Singh for respondent No. 4 as well as
learned Standing Counsel for rest of
respondent.

2. Sri Bharat Lal-respondent no. 4
was granted a mining lease for excavating
building stone, gitti, bolder and mild
stones in respect of plot no. 485 (area 5
acres)
for
a
period
beginning
on