# Radhe Shyam Chaurasiya & Anr. Revisionists v. Smt. Babita

- **Citation:** (2022) 5 ILRA 1443
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-30
- **Case number:** S.C.C. Revision No. 41 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhe-shyam-chaurasiya-anr-revisionists-v-smt-babita-48427
- **Pages:** 5

## Headnote

Civil Law - Code of Civil Procedure,1908
- Order XV Rule 5 - Suit for eviction and
arrears of rent against revisionist-opposite
party filed Written St.ment denying tenancy
of revisionist no.1 but accepted tenancy of
revisionist
no.2
-opposite
party
filed
application under Order XV Rule 5 to strike off
defence-no payment of rent before the Court
concerned- after first hearing of suit-defence
rightly struck off.

Revision dismissed. (E-9)

List of Cases cited:
1444 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

5 All. Radhe Shyam Chaurasiya & Anr. Vs. Smt. Babita
1443
of the High Court under Section 25 of the
Provincial Small Causes Courts Act is
wider then Section 115 of the Code of Civil
Procedure. But the fact that Revision is
provided for by the statute, and not an
Appeal, itself is suggestive of the fact that
ordinarily Revisional jurisdiction can be
exercised only when a question of law
arises.

"23. We however do not mean to
say that under no circumstances finding of
fact cannot be interfered with. A pure
finding of fact based on appreciation of
evidence although may not be interfered,
with but if such finding has been arrived at
upon taking into consideration irrelevant
factors or therefore, relevant fact has been
ignored, the Revisional Court will have the
requisite jurisdiction to interfere with the
finding of fact. Applicability of provisions
of Section 2 (2) of the Act may in that sense
involve determination of mixed question of
law and fact."

19. Having heard the learned counsel
for the Revisionist and the learned counsel
appearing on behalf of the respondent
landlord, I have also carefully perused the
order impugned. This is not a case where
the trial court has considered any irrelevant
fact or has ignored any relevant fact. There
is also no perverse finding of fact against
the record. The Revisionist may have been
alleging that he had paid all arrears of rent
due to the landlord, the burden was on him
to prove such allegations. The learned trial
court on the basis of documentary evidence
and provisions of Order 15 Rule 5 of the
CPC has come to a conclusion that despite
an application being made, the defendant
had not made any payment at all during the
pendency of the Suit in the account of the
respondent landlord nor had deposited any
sum in cash in the court concerned where
the Suit for Arrears of Rent and Eviction
was pending. This Court, therefore, finds
no good ground to show interference in the
order impugned.

20. The Revision stands Rejected.
Since the order of the trial court stands
affirmed it shall be complied with strictly
by the Revisionist, who shall pay all arrears
of rent and also damages pendente lite with
interest at the rate of 12 percent per annum
and vacate the premises in question within
a period of two months.
----------
(2022)05ILR A1443
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 41 of 2022

Radhe Shyam Chaurasiya & Anr.
 ...Revisionists
Versus
Smt. Babita ...Opposite Party

Counsel for the Revisionist:
Sri Mahadeo Singh Chandel

Counsel for the Opposite Party:
Sri Harsh Narayan Singh

Civil Law - Code of Civil Procedure,1908
- Order XV Rule 5 - Suit for eviction and
arrears of rent against revisionist-opposite
party filed Written St.ment denying tenancy
of revisionist no.1 but accepted tenancy of
revisionist
no.2
-opposite
party
filed
application under Order XV Rule 5 to strike off
defence-no payment of rent before the Court
concerned- after first hearing of suit-defence
rightly struck off.

Revision dismissed. (E-9)

List of Cases cited:
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Maya Devi & anr. Vs Vipin Kumar Kushwaha &
anr. passed in S.C.C. Revision No. 489 of 2014
decided on 26.8.2016

2. S.B.I., City Branch Pandey Hata, Thru. its
Branch Manager & anr. Vs Ram Niwas Verma &
ors. reported in 2018 (127) ALR 362

3. Gaya Prasad Vs Thakur Krishna Chandra Ji
Maharaj Virajman Mandir Bag Beniram & anr.
reported in 2018 (127) ALR 104
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
revisionists and Sri Harsh Narayan Singh,
learned counsel for the opposite party.

2. Present revision has been filed
challenging the impugned order dated
3.11.2021 passed by the Additional Session
Judge, Court No.1, Banda in SCC No. 3 of
2019 (Smt. Babita vs. Radhe Shyam
Chaurasiya).

3. Learned counsel for the revisionist
submitted that revisionist no.1 is never the
tenant of opposite party, whereas tenancy is
with the revisionist no. 2 through her
husband since 1989. After institution of
Suit No. 3 of 2019, opposite party has filed
written statement denying the tenancy of
revisionist no.1, but accepted the tenancy
of revisionist no. 2. During the pendency of
suit proceedings, opposite party has filed an
application under Order XV Rule 5 of Code
of Civil Procedure (in short C.P.C.) on
5.1.2021 to struck off the defence, which
was replied by the revisionists-defendants
on 2.2.2021. In its reply, it is stated that
revisionist no.1 is never the tenant and
revisionist no.2 is shown to be sub-tenant,
against whom, no rent is claimed, therefore,
both are not liable to pay rent as required
under Order XV Rule 5 of C.P.C.. Further,
revisionist no. 2 is continuously tried to pay
rent, but the same was not accepted by the
opposite party, therefore, revisionist no.2
sent the rent of shop in question through
post office on 30.4.2019. He also stated that
revisionist no.2 paid the rent of 32 months
from 13.2.2015 to 13.10.2017. Lastly, he
submitted that under such facts and
circumstances, application has wrongly
been allowed and order is bad in law and
liable to be set aside.

4. Per contra, Sri Harsh Narayan
Singh, learned counsel for the opposite
party submitted that both the defendantsrevisionists are tenant of shop in question
and taking contrary view. On one hand,
they are saying that they are not tenant and
on the other hand, it is accepted by
revisionist no.2 that she has deposited rent
from time to time. He next submitted that
in case, revisionist no.1 is not the tenant, he
must file an affidavit to this effect before
the Court below with the specific averment
that his name may be deleted from the
array of the parties and he is only visitor at
the shop of revisionist no.2, who is original
tenant. He further submitted that now it is
admitted by the revisionist no.2 that she is
tenant. Further, from the pleadings of this
revision as well as objection filed to the
application under Order XV Rule 5 of
C.P.C., it is admitted by the revisionist no.1
that he was not the tenant, therefore, he has
not paid rent and revisionist no.2 is tenant,
but never deposited the rent as required
under provision of Order XV Rule 5 of
C.P.C. Therefore, there is no illegality or
irregularity in allowing the application filed
under Order XV Rule 5 C.P.C.

5. In support of this contention, he
placed reliance upon the judgments of this
Court in the cases of Maya Devi another
vs. Vipin Kumar Kushwaha and another
passed in S.C.C. Revision No. 489 of 2014
decided on 26.8.2016, State Bank of India,
5 All. Radhe Shyam Chaurasiya & Anr. Vs. Smt. Babita
1445
City Branch Pandey Hata, Thru. its
Branch Manager and another vs. Ram
Niwas Verma and others reported in 2018
(127) ALR 362 and Gaya Prasad Vs.
Thakur Krishna Chandra Ji Maharaj
Virajman Mandir Bag Beniram and
another reported in 2018 (127) ALR 104.

6. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
provision of Order XV Rule 5 of C.P.C. as
well as judgments of this Court. Order XV
Rule 5 of C.P.C. Provides as follows:-

"5. Striking of defence for failure
to deposit admitted rent, etc. 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 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 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 any 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
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

7. The first part deals with the deposit
of the 'entire amount admitted by him to be
due' together with interest at or before the
first hearing of the suit. The second part
deals with the deposit of 'monthly amount
due' which has to be made throughout the
continuation of the suit. So far as any
amount deposited prior to institution of the
suit, may be adjusted against the arrears, if
any such application is filed. Whereas
second part is concerned, it is mandatory
requirement to deposit the rent before the
Court concerned, where the suit
is
instituted. In the objection dated 2.2.2021
filed to the application under Order XV
Rule 5 of C.P.C as well as affidavit filed
before the Court, it is accepted by the
revisionist no.2 that no rent has been paid
by her before the Court concerned after
first hearing of the suit.

8. This Court in the matter of Maya
Devi (Supra) has taken specific view that in
case of denial of tenancy, he may not be
required to deposit the amount admitted to
be due at or before the first hearing of the
suit but he would still be required to
deposit the monthly amount due within a
week. Relevant paragraph of the said
judgment is being quoted hereinbelow:-

"In the aforesaid case it was held
that where the defendant denies the
existence
of
landlord
and
tenant
relationship, he may not be required to
deposit the amount admitted to be due at or
before the first hearing of the suit but he
would still be required to deposit the
monthly amount due within a week from the
date
of
its
accrual
throughout
the
continuation of the suit because such
deposit has to be made in spite of the fact
he admits any amount to be due or not."

9. In the matter of Gaya Prasad
(Supra), Court has taken the view that rent
is required to be deposited in compliance of
provisions of Order XV Rule 5 of C.P.C.
Relevant paragraph of the said judgment is
being quoted hereinbelow:-

"Default in payment of rent is
admitted and stands proved on record
inasmuch as according to own case of the
defendant-petitioner he has not paid rent
after 04.08.1999. It is also not disputed that
the rent has not been deposited in
compliance to the provisions of Order XV
Rule 5 C.P.C. Consequently, his defense
was also struck off. The order striking off
the defense, therefore, also does not suffer
from any manifest error of law."

10. In the matter of State Bank of
India, City Branch Pandey Hata (Supra),
Court has again taken the same view that
rent is not deposited by the tenant,
therefore, there is no illegality in striking
off the defence. Relevant paragraph of the
said
judgment
is
being
quoted
hereinbelow:-

"Considering the admitted facts
of the case that the defendants-petitioners
have neither disputed the arrears of rent on
the first date of hearing nor paid monthly
rent and as such protection of order XV
Rule 5 C.P.C. was not available to him.
Consequently, the court below has not
committed any error of law in allowing the
application 37Ga and striking off the
defence
of
the
defendantspetitioners/tenants. So far as the rejection
of application 50Ga is concerned, I find
that as per statement made by learned
5 All. Kamlesh Shukla & Ors. Vs. Smt. Annapurna Devi & Anr.
1447
counsel
for
the
plaintiffs-respondents
before this Court and not disputed by
learned
counsel
for
the
defendantspetitioners, the date 8.2.2018 is fixed before
the court below for arguments. Therefore, I
find it appropriate to request the court
below to decide the aforesaid SCC Suit
No.05 of 2016 (Ram Niwas Verma and
others Vs. State Bank of India and another)
in accordance with law, expeditiously,
preferably within eight weeks from the date
of presentation of a certified copy of this
order, without granting any unnecessary
adjournment to either of the parties."

11. From perusal of Order XV Rule 5
of C.P.C., it is apparently clear that any
deposit made prior to first appearance in
SCC suit may be adjusted for arrears of
rent due upon filing an application, but
after institution of suit, it is mandatory
requirement to deposit rent before the
Court, where the suit is instituted. Once it
is not disputed that rent has not been
deposited before the Court concerned,
where the suit is instituted, there is no
option before the Court to struck off the
defence as provided under the provisions of
Order XV Rule 5 of C.P.C.

12. So far as present case is
concerned, there is admission on the part of
revisionist no.2 that she has paid rent from
time to time and she is tenant. She also
admitted that she has never paid rent before
the Court concerned after first hearing of
the suit as required under Order 5 Rule 15
of C.P.C.

13. Therefore, in light of facts of the
case as well as law laid down by this Court
from time to time, there is no illegality or
irregularity and Court has rightly struck off
the defence of revisionists. Revision lacks
merit and is, accordingly, dismissed. No
order as to costs.
----------
(2022)05ILR A1447
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2022

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Second Appeal No. 940 of 1997

Kamlesh Shukla & Ors. ...Appellants
Versus
Smt. Annapurna Devi & Anr.
 ...Respondents

Counsel for the Appellants:
Sri S.D. Kautilya, Sri Dinesh Dwivedi

Counsel for the Respondents:
Sri R.P. Shastri, Sri H.P. Mishra, Sri
Raghvendra P. Shastri, Sri Vivek Saran

Civil Law - Hindu Succession Act, 1956 -
Section 14 -Deceased had two wives-deceased
wife was entitled for residence and maintenance
from her husband-family settlement-several
properties devised in her favour and also to her
step son-to avoid future dispute-house in
dispute-right to transfer with consent of step
son-possession handed to her-she died in 1977Hindu Succession Act came into force in 1956she was occupying the property on that timethrough family settlement-her pre-existing right
of maintenance and residence was recognizedshe became full owner of the property in
question by virtue of section 14(1) and section
14 (2) cannot be applied. (E-9)

List of Cases cited:

1. V. Tulasamma & ors. Vs V. Shehsa Reddy, AIR
1977 SC 1944

2. Badri Parasad Vs Smt. Kanso Devi AIR 1970
SC 1963