# Satya Narayan Bhagat Revisionist v. Pitambar Dutt Pandey & Ors

- **Citation:** (2022) 5 ILRA 1285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-25
- **Case number:** S.C.C. Revision No. 13 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-narayan-bhagat-revisionist-v-pitambar-dutt-pandey-ors-48486
- **Pages:** 6

## Headnote

Civil Law - Code of Civil Procedure,1908 -
Order XV Rule-5 - Rent not paid before the
court where the suit is pending, but before
another Court under the proceeding of Section
30(1) of U.P. Act No. 13 of 1972. Amount
deposited under Section 30(1) of U.P. Act No.
13 of 1972 cannot be adjusted against the
amount to be deposited before the Court in
compliance of Order XV Rule 5 CPC -impugned
order upheld.

Revision dismissed. (E-9)

List of Cases cited:

## Text

5 All. Satya Narayan Bhagat Vs. Pitambar Dutt Pandey & Ors.
1285

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v) The applicant shall not leave
the country without permission of the Court
concerned.

19. Before parting with it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------

(2022)05ILR A1285
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.03.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 13 of 2022

Satya Narayan Bhagat ...Revisionist
Versus
Pitambar Dutt Pandey & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Narendra Kumar Chaturvedi

Counsel for the Opposite Parties:
Sri Hausihla Prasad Mishra

Civil Law - Code of Civil Procedure,1908 -
Order XV Rule-5 - Rent not paid before the
court where the suit is pending, but before
another Court under the proceeding of Section
30(1) of U.P. Act No. 13 of 1972. Amount
deposited under Section 30(1) of U.P. Act No.
13 of 1972 cannot be adjusted against the
amount to be deposited before the Court in
compliance of Order XV Rule 5 CPC -impugned
order upheld.

Revision dismissed. (E-9)

List of Cases cited:
1. Kedar Nath Vs Waqf Shekikh Abdullah
Charitable Madursa & ors.; 2016 6 ADJ 24.
2. Haider Abbas Vs A.D.J. (Court No. 3),
Allahabad & ors. ; 2006 (62) ALR 552,
3. More Singh Vs Chandrika Prasad; 2016 130
RD 90
4. Krishna Kumar Gupta Vs Manoj Kumar Sahu;
2017 LawSuit (All) 658
5. Om Prakash Gupta Vs District Judge & anr.;
2019 (2) JCLR 529 (All).

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

1. Heard Sri N.K. Chaturvedi, learned
counsel for revisionist and Sri Hausihla
Prasad
Mishra,
learned
counsel
for
respondents.

2. Learned counsel for revisionist
submitted at the bar that he does want to
press the revision against order dated
04.12.2021 passed by Additional District
and
Sessions
Judge/
Special
Judge
(Prevention of Corruption Act), Court No.
3, Gorakhpur and he may be given liberty
to file fresh revision against order dated
04.12.2021, for which Sri Hausihla Prasad
Mishra, learned counsel for respondents
has no objection.

3. Accordingly, present revision
stands dismissed against order dated
04.12.2021 with the aforesaid liberty.
1286 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the revisionist
submitted that plaintiff/ respondents have
filed SCC Suit No. 10/2017 for eviction,
arrear of rent and damages on 24.08.2017
in which defendant/ revisionist has filed
written statement on 28.03.2003 and taken
specific plea that he had already deposited
the entire due amount prior to filing of suit
through different mode. Later on, after
refusal of receiving of rent, he had also
instituted a case under Section 30(1) of U.P.
Act No. 13 of 1972 and continuously
depositing the rent amount there. He next
submitted that plaintiff/ respondents have
filed application dated 3.3.2020 under
Order XV Rule-5 CPC, which was
numbered as Paper No. 33C to struck off
defence, upon which, defendant/ revisionist
has filed objection dated 11.02.2021, which
was numbered as Paper No. 36C. He next
submitted that application of plaintiff/
respondents was allowed and objection of
defendant/ revisionist rejected on the
ground that in all eventuality, after
institution of suit, he has required to
deposit monthly rent before the Court,
where the suit is pending and any deposit
made under Section 30(1) of U.P. Act No.
13 of 1972 cannot be adjusted. He next
submitted that impugned order is bad on
two grounds; first of all, Order XV Rule- 5
CPC is discretionary and secondly, the
provisions should not be interpreted in a
way that tenant should be trapped to be
evicted. In support of his contention, he has
placed reliance upon the judgement of this
Court in the matter of Kedar Nath Vs.
Waqf
Shekikh
Abdullah
Charitable
Madursa and others; 2016 6 ADJ 24.

5. Learned counsel for the plaintiff/
respondents submitted that from the perusal
of Order XV Rule-5 CPC, it is apparent
that it is not discretionary, but mandatory in
nature, therefore, it is required on the part
of defendant/ revisionist to deposit entire
monthly rent before the Court, where the
suit is pending and any deposit made under
Section 30(1) of U.P. Act No. 13 of 1972
cannot be adjusted to meet the requirement
of Order XV Rule 5 of CPC. Court has
rightly struck off the defence of the
defendant/ revisionist in lack of deposit of
monthly rent before the Court, where the
suit is pending. In support of his
contention, he has placed reliance upon the
judgements of this Court in the matter of
Haider Abbas Vs. Additional District
Judge (Court No. 3), Allahabad and Ors;
2006 (62) ALR 552, More Singh Vs.
Chandrika Prasad; 2016 130 RD 90,
Krishna Kumar Gupta Vs. Manoj Kumar
Sahu; 2017 LawSuit (All) 658 and Om
Prakash Gupta Vs. District Judge and
another; 2019 (2) JCLR 529 (All). He also
submitted that judgement of Kedar Nath
(supra) has not considered the earlier
judgement of this Court in the matter of
Haider Abbas (supra) and More Singh
(supra).

6. I have considered the rival
submissions made by learned counsel for
the
parties.
Facts
of
the
case
are
undisputed. Before proceeding to decide
the issue, it would be useful to see the
provisions of Order XV Rule 5 of CPC,
U.P. Amendment, the same is being quoted
below;

"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
5 All. Satya Narayan Bhagat Vs. Pitambar Dutt Pandey & Ors.
1287
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
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. It is admitted position that
defendant- revisionist has deposited the
amount not before the Court, where the suit
was instituted, but before another Court
under the proceeding of Section 30(1) of
U.P. Act No. 13 of 1972. Issue before this
Court is as to whether any amount
deposited under Section 30(1) of U.P. Act
No. 13 of 1972 can be adjusted against the
amount to be deposited before the Court in
compliance of Order XV Rule 5 CPC
during pendency of suit. In support of his
contention,
learned
counsel
for
the
defendant- revisionist has placed reliance
upon judgement of this Court in the matter
of Kedar Nath (supra), which was
rendered after relying upon different
judgements of Apex Court as well as this
Court. Relevant paragraph of the said
judgement is being quoted below;

 "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.
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
(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)."

8. Earlier, there was conflict of view
in judgments of Court on this point and
matter was referred to Division Bench of
this Court in the matter of Haider
Abbas(supra) by framing the following
questions;

"Whether the deposit made under
Section 30(1) of U.P. Act No. 13 of 1972
after the date of service of summons of a
civil suit for arrears of rent can be taken
into consideration for computing the
deposit for the purpose of deciding the
question whether the defence should or
should not be struck off under Order XV
Rule 5 CPC?"

9. Division Bench, after considering
in detail the provisions of Order XV Rule 5
of CPC and different judgements of Apex
Court and this Court, has answered the
same, which is as follows;

""The aforesaid decision of the
Supreme Court in the case of Atma Ram
(supra) emphasizes that if the tenant wishes
to take advantage of the beneficial
provisions of the Rent Control Act, he must
strictly comply with the requirements and if
any condition precedent is required to be
fulfilled before the benefit can be claimed,
the tenant must strictly comply with that
condition failing which he cannot take
advantage of the benefit conferred by such
a provision. It has further been emphasised
that the rent must be deposited in the Court
where it is required to be deposited under
the Act and if it is deposited somewhere
else, it shall not be treated as a valid
payment/tender
of
the
rent
and
consequently the tenant must be held to be
in default.

In view of the aforesaid principles
of law enunciated by the Supreme Court in
the aforesaid case of Atma Ram (supra), it
has to be held that the tenant must comply
with the requirements of Order XV Rule 5
CPC and make the deposits strictly in
accordance with the procedure contained
therein. A deposit which is not made in
consonance with the aforesaid Rule cannot
enure to the benefit of the tenant and,
therefore, only that amount can be
deducted from the "monthly amount"
required to be deposited by the tenant
during the pendency of the suit which is
specifically mentioned in Explanation 3 to
Rule 5 (1) of Order XV CPC.

..............................................................
................................................

We, therefore, upon an analysis of
the provisions of Rule 5 (1) of Order XV
CPC, hold that while depositing the amount
at or before the first hearing of the suit, the
tenant can deduct the amount deposited
under Section 30 of the Act but the deposits of
the monthly amount thereafter throughout the
continuation of the suit must be made in the
Court where the suit is filed for eviction and
recovery of rent or compensation for use and
occupation and the amount, if any, deposited
under Section 30 of the Act cannot be
deducted."

10. Again, this issue came up before
this Court in the matter of More Singh
(supra) and this Court after considering the
judgement of Division Bench of this Court in
the matter of Haider Abbas (supra) and other
judgements of Apex Court held as follows;

"It
thus
follows
that
while
deposits made under Section 30, before the
5 All. Satya Narayan Bhagat Vs. Pitambar Dutt Pandey & Ors.
1289
date of first hearing are to be adjusted but
any rent deposited thereafter in proceeding
under Section 30 would not enure to the
benefit of the tenant for adjudging
compliance of the provisions of Order XV,
Rule 5 CPC."

11. This Court considered this issue in
the matter of Krishna Kumar Gupta
(supra) also and has taken very same view.
Relevant paragraph of the said judgement
is being quoted below;

"The difference between the two
categories discussed herein above, apart
from the stage at which they apply, is two
fold: (a) in the first category the defendant
is required to make a deposit of the
admitted dues whereas in the second
category,
which
relates
to
monthly
deposits, whether he admits it to be due or
not, the deposit has to be made on a
monthly basis, at the admitted rate of rent,
throughout the continuance of the suit;
and (b) in the first category the tenant can
seek adjustment of the amount deposited
under section 30 of UP Act No.13 of 1972
as well as the amount, if any, paid to the
lessor acknowledged by the lessor in
writing signed by him, whereas in the
second category, which relates to monthly
deposits,
no
such
adjustment
is
permissible as would be clear from the
difference between Explanation 2 and
Explanation 3."

12. Once again this issue came up
before this Court in the matter of Om
Prakash Gupta (supra) and this Court after
considering
the
different
judgements
including judgement of Division Bench of
this Court in the matter of Haider Abbas
(supra) as well as judgement of Single
Bench of this Court in the matter of More
Singh (supra), has held as follows;

"In the instant case, concededly,
even after receipt of summons, monthly rent
upto December 2012 was deposited by the
tenant in proceedings under Section 30 (1)
of the Act. It was only since January 2013
that he started depositing monthly rent in
the instant suit. Consequently, the benefit of
monthly rent deposited under Section 30 (1)
after receipt of summons/filing of written
statement i.e. 3.12.2010 upto December
2012 could not be extended to the
defendant
tenant
while
reckoning
compliance of Order 15 Rule 5 CPC. There
is no escape from the mischief of Order 15
Rule 5 CPC. The trial court was justified in
striking off the defence. The revisional
court has committed a grave error of law in
extending benefit of these deposits without
considering the legal position laid down in
Larger Bench judgment in Haidar Abbas
(supra).

In consequence and as a result of
above discussion, the impugned order
dated 13.5.2015 is quashed and the order
passed by the trial court dated 8.8.2014 is
restored."

13. In light of different judgements
discussed herein above, it is apparently
clear that judgements of Haider Abbas
(supra) and More Singh (supra) were
delivered prior to judgement of Kedar Nath
(supra), but while giving the judgement in
the matter of Kedar Nath (supra), Court
has not considered those judgements.
Therefore, the said judgement is per
incuriam
and
cannot
be
treated
as
precedent.

14. From perusal of Order XV Rule 5
of CPC, it is apparently clear that before
first hearing of the suit proceeding, amount
which is to be deposited is having two
parts; first part is to deposit the entire
amount admitted by the defendant together
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
with interest thereon at the rate of nine per
centum per annum as provided in Order
XV Rule 5 of CPC and second part is, the
amount either admitted or not to be
deposited throughout the continuation of
suit proceeding from month to month basis.
About the first part, any amount deposited
by any mode in accordance with law or
deposited in proceeding under Section
30(1) of U.P. Act No. 13 of 1972 can be
adjusted, but so far as second part is
concerned, any such amount deposited
under Section 30(1) of U.P. Act No. 13 of
1972, cannot be adjusted. It is always
required on the part of defendant to deposit
the same before the Court, where the suit is
instituted.

15. So far as present case is
concerned, there is no dispute of fact and it
is admitted position that the revisionist -
defendant has never deposited the amount,
so due on month to month basis before the
Court where the suit was instituted after
first date of hearing. Therefore, in light of
provisions of Order XV Rule 5 of CPC,
ratio of law laid down by the Courts as well
as discussion made herein above, no relief
can be granted to the revisionist.

16. Accordingly, revision lacks merit
and is dismissed.

17. No order as to costs.
----------
(2022)05ILR A1290
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Capital Cases No. 1 of 2014
connected with
Criminal Appeal No. 1776 of 2016

State of U.P. ...Appellant
Versus
Deen Dayal Tiwari ...Respondent

Counsel for the Appellant:
Govt. Advocate, Jyotindra Misra (Amicus),
Kapil Misra

Counsel for the Respondent:

A. The testimony of an eye-witness merely
because he happens to be a relative of the
deceased cannot be discarded as close relatives
would be the last one to screen out the real
culprit and implicate innocent person.

B. If the prosecution case is established by the
evidence adduced, any failure or omission on
the part of the Investigating Officer cannot
render the case of the prosecution doubtful

C. Prosecution evidence may suffer from
inconsistencies here and discrepancies there,
but that is a shortcoming from which no criminal
case is free. The main thing to be seen is
whether those inconsistencies go to the root of
the matter or pertain to insignificant aspects
thereof.

D. Civil Law - Evidence Act, 1872 - Section
106 - Will apply to those cases where the
prosecution has succeeded in establishing the
facts from which a reasonable inference can be
drawn regarding the existence of certain other
facts which are within the special knowledge of
the accused. When the accused fails to offer
proper explanation about the existence of said
other facts, the Court can always draw an
appropriate inference.

E. When a case is resting on circumstantial
evidence, if the accused fails to offer a
reasonable explanation in discharge of burden
placed on him by virtue of Section 106 of the
Evidence Act, such a failure may provide an
additional link to the chain of circumstances. In
a case governed by circumstantial evidence, if
the chain of circumstances which is required to
be established by the prosecution is not