# Ram Autar Khandelwal Revisionist v. Addl. District & Session Judge Lucknow & Anr

- **Citation:** (2022) 5 ILRA 1437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-24
- **Case number:** S.C.C. Revision Defective No. 45 of 2020
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-autar-khandelwal-revisionist-v-addl-district-session-judge-lucknow-anr-48523
- **Pages:** 7

## Headnote

Law
-
Code
of
Civil
Procedure,1908 - Order XV Rule 5Despite application being made-defendant
not paid at all during pendency of suitneither in account nor in cash in the Court
concerned -where suit for arrears of rent
and eviction was pending-decree in favour
of Landlord-upheld.

Revision rejected. (E-9)

List of Cases cited:

## Text

5 All. Ram Autar Khandelwal Vs. Addl. District & Session Judge Lucknow & Anr.
1437
09.03.2022 passed by District Judge,
Aligarh is hereby set aside.

14. Accordingly, Revision is allowed.

15. No order as to costs.
----------
(2022)05ILR A1437
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.03.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

S.C.C. Revision Defective No. 45 of 2020

Ram Autar Khandelwal ...Revisionist
Versus
Addl. District & Session Judge Lucknow &
Anr. ...Opposite Parties

Counsel for the Revisionist:
Nirankar Nath Jaiswal, Prashant Jaiswal

Counsel for the Opposite Parties:
Umesh Kumar Tiwari

Civil
Law
-
Code
of
Civil
Procedure,1908 - Order XV Rule 5Despite application being made-defendant
not paid at all during pendency of suitneither in account nor in cash in the Court
concerned -where suit for arrears of rent
and eviction was pending-decree in favour
of Landlord-upheld.

Revision rejected. (E-9)

List of Cases cited:

1. Hari Shankar & ors. Vs Rao Girdhari Lal
Chowdhury AIR 1963 Supreme Court 698

2. Rama Murti Devi Vs Pushpa Devi & ors. 2017
(15) SCC 230

3. Mundri Lal Vs Sushila Ram (2007) 8 SCC
609
4. "Bal Gopal Maheshwari & ors. Vs Sanjeev
Kumar Gupta 2013 (6) AWC 5823 (SC)

5. Bimal Chand Jain Vs Shri Gopal Agarwal 1981
(3) SCC 486
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1.

Heard
learned
counsel
for
Revisionist and learned counsel appearing
on behalf of the Respondent, Mr. Umesh
Kumar Tiwari at length.

2. This Civil Revision has been filed
against the judgment and order dated
08.10.2020
passed
by
the
learned
Additional District & Sessions Judge,
Court No. 19, Lucknow in SCC No. 30 of
2017, 'Ajay Kumar Agarwal Vs. Ram Autar
Khandelwal' with a delay of around one
month. Although time was granted earlier
to
the
counsel
for
the
contesting
respondents to file objections but he has not
filed objections.

3. Learned counsel for the respondent
no.2 says that he does not propose to file
any objection and the matter be heard on
merits.

4. Delay is condoned.

5. Office is directed to give a Regular
number to this Revision.

6. It is the case of the Revisionist that
the respondent landlord had given a shop
on monthly rent of Rs.5,500/- to the
Revisionist in 2008. Since then the
Revisionist has been paying advance rent
continuously either through cash or cheque
on demand of the landlord as mutually and
orally agreed upon by them. It has been
alleged that the respondent's son had asked
the Revisionist for Rupees Two Lakhs for
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
opening a new business, but the Revisionist
could not furnish such a huge amount
immediately.
Becoming
annoyed
the
respondent's son persuaded his father to
throw the Revisionist out from the premises
and had many times illegally approached
the Revisionist at his shop forcing him to
vacate the premises. The Revisionist
ultimately filed an Injunction Suit No. 821
of 2017 before the Civil Judge (Junior
Division), Lucknow in May, 2017. After
getting notice of such Injunction Suit the
respondent landlord sent a legal notice on
27.05.2017 for arrears of rent amounting to
Rs.78,000/-
for
the
period
between
15.04.2016 to 14.05.2017. Such demand
was illegal as the Revisionist had already
deposited rent w.e.f. March, 2016 to
August, 2016 in the bank account of A. K.
Enterprises, the transport firm of the
respondent landlord, through cheque No.
405647 on 15.02.2016. The Revisionist on
receipt of such legal notice had sent a reply
on 27.06.2017
that
he
had
already
deposited cheque dated 15.02.2016 in the
bank account of the firm for the period
w.e.f. March, 2016 to August, 2016.
Nevertheless
cheque
No.
488540
of
Rs.78,000/- as demanded by the landlord
was again being sent along with the reply
through registered post to satisfy the
demand for arrears of rent. Since reply had
been sent along with a cheque of
Rs.78,000/- to the respondent landlord, the
Revisionist presumed that the matter had
been settled satisfactorily.

7. It has been argued that the
respondent landlord with malafide intent
filed S.C.C. Suit No. 30 of 2017 on
01.07.2017 for arrears of rent and for
eviction. On 07.09.2017, the respondent
landlord returned the cheque of Rs.78,000/-
to the Revisionist through registered post
saying that the account of the Firm had
been closed long back and the cheque,
therefore, could not be accepted. The
Revisionist did not accept this cheque, but
approached the court for depositing rent
where he was surprised to find out about
the pendency of the aforesaid S.C.C. Suit
No. 30 of 2017. The Revisionist moved an
application under Order 15 Rule 5 read
with Section 151 of the CPC on 19.03.2018
for depositing rent along with 9% interest
and Advocate's fee that is a total amount of
Rs.2,29,220/-. Such arrears were deposited
on
12.04.2019.
Also,
thereafter
the
Revisionist continued to deposit all rent
continuously, as and when it fell due, in the
court. However, the S.C.C. Suit has been
decreed in favour of the respondent
landlord, without appreciating the evidence
on record including the application under
Order 15 Rule 5 read with Section 151
CPC.

8. It has been argued by Sri Prashant
Jaiswal, Advocate
appearing
for
the
Revisionist that the learned trial court
failed to see that the S.C.C. Suit for arrears
of rent was not maintainable as there was
no default of rent by the Revisionist. The
learned trial court failed to notice that
neither the landlord had filed any rent
agreement,
registered
or
unregistered,
along with the Suit nor he had filed any
rent receipt issued by him for any period to
show that he was the landlord. The learned
trial court could not have come to the
conclusion that the Revisionist was a
defaulter unless the relationship of landlord
and tenant was established and it was also
established that the arrears of rent fell due
on a particular date. The Revisionist had
filed his bank statement to show that all
rent was transferred in the bank account of
the landlord. The fact of default in payment
of Arrears having not been established the
very basis of the S.C.C. Suit fell through.
5 All. Ram Autar Khandelwal Vs. Addl. District & Session Judge Lucknow & Anr.
1439
In the Application under Order 15 Rule 5 of
the CPC, the Revisionist had specifically
stated that advance rent of the period w.e.f.
15.03.2016 to 14.08.2016 had already been
paid in the Landlord's Firm's Account i.e. A
K & Company's account on 15.02.2016 and
the rest of the rent w.e.f. 15.08.2016 to
14.07.2017 had been paid through another
cheque again made out in favour of A K &
Company sent to the landlord along with
this reply of notice dated 27.05.2017. It has
also been argued that since the Revisionist
had
paid
rent
w.e.f.
15.03.2016
to
14.08.2016
through
cheque
dated
15.02.2016, the notice that was sent by the
landlord in May 2017, was invalid. Even
after receipt of notice the petitioner had
deposited Rs.78,000/- through cheque in
the account of A K & Company on
30.06.2017, therefore, there were no arrears
of rent due from the Revisionist and the
Suit was not maintainable.

9. It has also been argued that the Suit
was not maintainable also for the reason that
Ajay Kumar Agarwal had filed a Suit in his
personal capacity whereas there was no
relationship of landlord and tenant between
Ajay Kumar Agarwal and the Revisionist. The
Revisionist was running Vinayaka Agencies'
retail counter in the shop in question situated at
Dubagga on Hardoi Road and the landlord was
A K & company of which Ajay Kumar
Agarwal was only the proprietor, just as the
Revisionist was the proprietor of Vinayaka
Agencies. In the Original Suit No. 821 of 2017
filed by the Revisionist against Ajay Kumar
Agarwal
before
the
Civil
Judge(Junior
Division), Haveli, Lucknow, only notice could
be served but no temporary injunction could be
granted to the Revisionist as the court remained
vacant.

10. The learned counsel for the
respondent landlord has pointed out the
issues framed by the learned trial court that
the first issue was with regard to whether
there existed any landlord and tenant
relationship between the plaintiff and the
defendant. The trial court had noted that it
was the contention of the Revisionist that
there was no relationship of landlord and
tenant between him and Ajay Kumar Agarwal
and that he was the tenant of A K &
Company of which Ajay Kumar Agarwal was
only the proprietor and rent had been given
through cheques to A K & Company. But in
the written statement filed by the tenant, he
had admitted that he used to give rent to Ajay
Kumar Agarwal also in cash and there was no
written agreement between the parties as the
landlord and the tenant were good friends in
the beginning and landlord Ajay Kumar
Agarwal had orally agreed for renting out the
shop in question. Also, the Suit for Permanent
Injunction, namely Original Suit No. 821 of
2017, had been registered as ''Ramavatar
Khandelwal vs. Ajay Kumar Aggarwal' and
not as ''Ramavtar Agarwal vs. A K &
Company. The learned trial court came to the
conclusion that admission is the best form of
evidence. It had been admitted by the tenant
that initially rent was giving either in cash to
Ajay Kumar Aggarwal or through cheques
since the beginning of the tenancy in 2008.
Later on, cheques were deposited in the
account of A K & Company. It had been
admitted by the defendant that Ajay Kumar
Agarwal was the only proprietor of the said
Firm and no other person had been authorised
to receive rent on behalf of the landlord.
Besides no documentary evidence was filed
by the defendant that the shop in question and
the land appurtenant thereto belonged to the
Firm A K & Company and not to Ajay
Kumar Agarwal.

11. It has been argued by the learned
counsel for the Respondent landlord that
with regard to the second issue framed by
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned trial court as to whether there
was any default in payment of rent by the
defendant, the learned trial court has found
that the plaintiff had alleged that the
defendant had not paid rent since March
2016, whereas the defendant had alleged
that rent had been paid w.e.f. March, 2016
in the account of A K & Company. On the
application moved by the defendant under
Order 15 Rule 5 of the CPC, it had already
been held on 10.05.2019 that arrears of rent
along with interest and cost of litigation
had not been deposited by the defendant in
time despite permission being granted in
this regard. It had been alleged by the
tenant that all arrears of rent including
interest and cost of litigation had been
deposited through cheque in the name of A
K & Company and not in the name of Ajay
Kumar Agarwal, whereas there was an
admission in the written statement that the
shop in question had been taken on rent by
the defendant from Ajay Kumar Agarwal
and initially rent was also paid to him in
cash by the defendant. After the order dated
10.05.2019, the defence of the tenant had
been struck off. The learned trial court had
also examined the bank statement filed by
the tenant as documentary evidence of
payment of rent. It was found that although
there is a mention of withdrawal of an
amount of Rs.79,588/- on 15.02.2016
through cheque, but there is no mention of
the account in which such cheque has been
paid. The plaintiff had categorically refused
that such amount was ever transferred into
the account of the landlord or even the firm
A K & Company of which he was the
proprietor.

It has been pointed out by the
learned
counsel
for
the
respondent,
landlord, that it is evident from the reply to
the legal notice sent by the Revisionist on
Page 32 of the paper book that he had
knowledge of the account of A K &
Company
having
been
closed
on
27.06.2017 itself, but he issued a cheque
dated 28.06.2017 in the name of A K &
Company and sent it by post to the
respondent landlord.

12. It has also been pointed out by the
learned counsel for the respondent that the
company's account was opened only on
23.12.2009, and the Revisionist had taken
the premises in question on rent since July,
2008 and had been making payment to
Ajay Kumar Agarwal in cash since July,
2008 onwards. Inexplicably, he stopped
paying rent to Ajay Kumar Agarwal in
2016 and started depositing cheques in the
name of A K & Company thereafter. Even
if the tenant's contention that he had paid
rent into the account of A K & Company
was taken to be correct, it would still not
make such payment admissible as arrears
of rent due to the plaintiff, Ajay Kumar
Agarwal, who was admittedly the person
from whom the Revisionist had taken the
shop on rent. It has been pointed out by the
learned counsel for the respondent that till
date the Revisionist has refused to give any
rent to Ajay Kumar Agarwal, insisting that
his landlord is A K & Company and not
Ajay Kumar Agarwal.

13. The learned counsel for the
respondent landlord has also pointed out
from Annexure 5, page 46 of the paper
book that the application moved under
Order 15 Rule 5 of the CPC on 19.03.2018
had enumerated the heads under which
money was proposed to be deposited. Such
application was allowed conditionally, but
no money was deposited in time prescribed,
as a result the learned trial court rejected
the application of the tenant on 22.05.2018.
A recall application was filed by the tenant
on 14.08.2018, which was allowed on
5 All. Ram Autar Khandelwal Vs. Addl. District & Session Judge Lucknow & Anr.
1441
19.01.2019, but no rent was deposited even
thereafter, as a result the learned trial court
struck off the defence of the tenant on
10.05.2019. Against such an order the
tenant filed Writ Petition No. 16426 (M/S)
of 2019, where no interim order was
granted and after decision of the trial court
impugned in this Revision such petition has
become infructuous.

14. The third issue framed by the
learned trial court related to whether notice
issued to the tenant through registered post
on 27.05.2017 by the landlord was a valid
notice and had been served upon him. The
learned trial court on the basis of evidence
on record found that not only the notice
was served, it was duly replied to by the
tenant. With regard to the relief admissible
to the plaintiff then learned trial court
found that all three issues having been
decided in favour of the plaintiff he was
entitled for decree of arrears of rent and for
eviction. It therefore directed the defendant
to pay arrears of twelve months of rent at
the rate of Rs.6,500/- from the date of
institution of the Suit as also damages
pendente lite at the same rate, and to vacate
the premises in question and deliver
peaceful possession thereof within two
months from the date of the order.

15. The learned counsel for the
respondent has placed
reliance upon
judgement rendered by the Supreme Court
in "Bal Gopal Maheshwari and Others Vs.
Sanjeev Kumar Gupta 2013 (6) AWC 5823
(SC)", where the Supreme Court has
considered the provisions of Order 15 Rule
5 of the CPC and striking off of the defence
of the defendant on failure to comply. After
considering the language of the provision
as added by way of amendment in 1972 in
the CPC, the Supreme Court placed
reliance upon "Bimal Chand Jain Vs. Shri
Gopal Agarwal 1981 (3) SCC 486 to say
that :- "a comprehensive understanding of
Rule 5 of Order 15 should be thus:- SubRule(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
9% 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) to 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 the decision of 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 the right
expressly vested in the defendant and
enables him to show by bringing material
on the record that he has not been guilty of
default alleged or if the default has
occurred, there is a good reason for it.
Now, it is not impossible that the records
may contain such material already. In that
event, can it be said that Sub-Rule (1)
obliges the court to strike out the defence?
We must remember that an order under
Sub-Rule (1) striking off 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 in
the court not to strike out the defence if on
the
facts
and
circumstances
already
existing on the record, it finds good reason
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
for not doing so. It will always be a matter
for the judgement 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
vested the power in the court to strike out
the defence. It does not oblige it to do so in
every case of default. ....."

16. The Supreme Court in the
judgement
of
Bal
Gopal
Maheshwari(Supra) went on to say that if
such discretion is exercised by the learned
trial court after looking into an application
made by the plaintiff to strike off the
defence of the defendant and its reply
thereto is submitted by the defendant it
would
amount
to
considering
the
''representation' in the light of Sub-Rule (2)
and the High Court should not have
interfered in a well considered order passed
by the trial court in this regard.

17. The learned counsel for the
respondent landlord, has also placed
reliance
upon
a
Constitution
Bench
judgement in the case of "Hari Shankar
and
others
Vs.
Rao
Girdhari
Lal
Chowdhury AIR 1963 Supreme Court
698", and judgement rendered in "Rama
Murti Devi Vs. Pushpa Devi and Others
2017 (15) SCC 230", regarding the scope
of Revision under Section 25 of the
Provincial Small Causes Courts Act.
Learned counsel for the respondent has
pointed out paragraph 29 to 38 of the
judgement
rendered
in
Rama
Murti
Devi(Supra), wherein after considering the
Constitution Bench judgement, as aforesaid
, it has been observed that the object of
Section 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 Court placed reliance
on observations made by Chief Justice
Beaumont in "Bell and Co Ltd. v Waman
Hemraj AIR 1938(Bombay) 223", where he
said :- ".....The section does not enumerate
the cases in which the court may interfere
in revision, as does, Section 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 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 that....".

18. The Supreme Court referred to
another judgement rendered in "Mundri
Lal Vs. Sushila Ram (2007) 8 SCC 609";
where it was held that a pure finding of fact
based on appreciation of all the evidence
although may not be interfered with but
there are several circumstances in which
the Revisional Court under Section 25 of
the 1887 Act, can interfere with the finding
of fact. It referred to the observations made
by the court in paragraph 22 and 23 as
follows :

" 22. There cannot be any doubt
whatsoever that the Revisional jurisdiction
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: