# Smt. Pushpa Gupta Revisionist v. Subhash Chandra & Anr. Opp. Parties

- **Citation:** (2022) 1 ILRA 967
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** S.C.C. Revision No. 135 of 2019
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-pushpa-gupta-revisionist-v-subhash-chandra-anr-opp-parties-47493
- **Pages:** 7

## Headnote

A. Civil Law - Civil Procedure Code, 1908:
Order XV Rule 5 - The U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 197 - Section 30(2) - The Court below
has observed that the lower court has finalized
the question of law between the parties and has
further noted that the Court has no jurisdiction
968 INDIAN LAW REPORTS ALLAHABAD SERIES
to condone the delay in depositing rent under
Order XV Rule 5 of the Code, if the tenant were
to represent her case about the deposit to be
made on the first date of hearing beyond ten
days of that date. However, the tenant through
this application has sought to condone the delay
much after the first date of hearing. Since the
application is beyond the condonable limit of
delay available to the Court to exercise its
discretion, therefore this Court rejected the
revision. (Para 20)
Revision Rejected. (E-10)

List of Cases cited:

## Text

1 All. Smt. Pushpa Gupta Vs. Subhash Chandra & Anr.
967
Maharashtra and others, AIR 2013 SC
58 was pleased to observe in paragraph 22
that under ordinary circumstances, a third
person, having no concern with the case at
hand, cannot claim to have any locus-standi
to raise any grievance whatsoever but in the
exceptional circumstances, the Court may
examine the issue and in exceptional
circumstances the Court may proceed suomotu. For the sake of convenience, the
relevant observations in the case of
Ayaaubkhan Noorkhan Pathan (supra)
are reproduced as under:-

"22. Thus, from the above it is evident
that under ordinary circumstances, a third
person, having no concern with the case at
hand, cannot claim to have any locus-standi
to
raise
any
grievance
whatsoever.
However, in the exceptional circumstances
as referred to above, if the actual persons
aggrieved, because of ignorance, illiteracy,
in articulation or poverty, are unable to
approach the court, and a person, who has
no personal agenda, or object, in relation to
which, he can grind his own axe,
approaches the court, then the court may
examine the issue and in exceptional
circumstances, even if his bonafides are
doubted, but the issue raised by him, in the
opinion of the court, requires consideration,
the court may proceed suo-motu, in such
respect."

14. This Court has gone through the
entire petition and no such averment has
been made anywhere in the entire petition
that the actual aggrieved persons because
of ignorance, illiteracy, in articulation or
poverty are unable to approach the Court
and in those circumstances the petitioner
has approached this Court. Thus, the
present
case
would
not
stand
the
exceptional circumstances as have been
spelt out by the Apex Court in the cases
of
Ayaaubkhan
Noorkhan
Pathan
(supra) and Dharm Raj (supra).

15. Accordingly, we find that the
petitioner has no locus to file the present
writ petition challenging the appointment
of respondent no.3 as he is not an aggrieved
person nor he has any concern with the
fraud alleged to have been committed by
respondent no.3. The objection raised by
the learned counsel for respondent nos.1
and 2 appears to be justified regarding the
locus of the petitioner.

16. Accordingly, keeping in view the
aforesaid discussion, the writ petition is
dismissed.
----------
(2022)01ILR A967
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

S.C.C. Revision No. 135 of 2019

Smt. Pushpa Gupta ...Revisionist
Versus
Subhash Chandra & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Ashish Kumar Srivastava

Counsel for the Respondents:
Sri Ayush Khanna, Sri Vaishali Sahu, Sri Atul
Dayal

A. Civil Law - Civil Procedure Code, 1908:
Order XV Rule 5 - The U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 197 - Section 30(2) - The Court below
has observed that the lower court has finalized
the question of law between the parties and has
further noted that the Court has no jurisdiction
968 INDIAN LAW REPORTS ALLAHABAD SERIES
to condone the delay in depositing rent under
Order XV Rule 5 of the Code, if the tenant were
to represent her case about the deposit to be
made on the first date of hearing beyond ten
days of that date. However, the tenant through
this application has sought to condone the delay
much after the first date of hearing. Since the
application is beyond the condonable limit of
delay available to the Court to exercise its
discretion, therefore this Court rejected the
revision. (Para 20)
Revision Rejected. (E-10)

List of Cases cited:

1. Sanjay Agrawal Vs Ganga Prasad Agrawal &
anr. 2009 (1) ARC 291

2. Haider Abbas Vs A.D.J., Allahabad & ors.
2006 (62) ALR 552 (All)
(Delivered by Hon'ble J.J. Munir, J.)

1. This S.S.C. Revision by the
defendant is directed against an order of
the Additional District Judge, Court no.2,
Varanasi, sitting as the Small Cause
Court, dated 11.11.2019 passed in SCC
Suit
no.7
of
2017,
rejecting
the
defendant's
application,
seeking
to
condone the delay in complying with the
provisions of Order XV Rule 5 CPC, with
a further prayer to permit the defendant to
deposit arrears of rent from the month of
March, 2015; in the alternative, to adjust
the rent deposited by the defendant under
Section 30(2) of the U.P. Act No.13 of
1972, with permission to deposit the
outstanding
rent
from
the
date
of
institution of the suit.

2. Notice pending admission was
issued vide order dated 17.07.2019, and
an interim stay of proceedings of the suit
was granted. The landlord has put in
appearance and opposed the motion to
admit this Revision to hearing. Learned
Counsel for the parties were heard and
orders were reserved.

3. Heard Mr. Ashish Kumar
Srivastava, learned Counsel for the
revisionist-tenant
in
support
of
the
motion to admit the Revision to hearing
and Mr. Atul Dayal, learned Senior
Advocate assisted by Mr. Ayush Khanna,
appearing on behalf of the plaintiffopposite party.

4. The facts of this case, and more
particularly, the course of proceedings
here would show that this Revision is a
second attempt by the defendant in the
suit, who is the tenant, to unshackle
himself of his liability under Order XV
Rule 5 of the Code of Civil Procedure,
1908
(for
short,
''the
Code').
The
defendant,
Pushpa
Gupta,
shall
hereinafter be referred to as, ''the tenant'.
Subhash Chandra and Pankaj Deovanshi,
the plaintiffs, shall hereinafter be referred
to as, ''the landlords'.

5. The landlords instituted S.C.C. Suit
no.7 of 2017 on 10th of February, 2017
before the District Judge, Varanasi, sitting
as the Judge, Small Cause Court, against
the tenant, seeking a decree of eviction,
recovery of arrears of rent and damages for
use
and
occupation
till
delivery
of
possession. The demised premises are
described as two rooms together with a
lavatory, a bathroom and kitchen, located
on the First Floor of House no. CK-48/178,
situate at Mohalla Harha, City Varanasi and
bounded as detailed at the foot of the plaint.
The aforesaid premises shall hereinafter be
referred to as, ''the demised premises'. It
appears that the demised premises were
earlier part of House no. CK- 48/178, of
which one Smt. Saroj Gupta was the owner.
Saroj Gupta executed a registered sale deed
1 All. Smt. Pushpa Gupta Vs. Subhash Chandra & Anr.
969
dated 16.03.2015, conveying in favour of
one Saurabh Singh and others, a part of the
said house on the southern side of it. It
appears that the demised premises is the
part of the house bearing no. CK-48/178,
that was transferred by Smt. Saroj Gupta in
favour of Saurabh Singh and others. Smt.
Saroj Gupta served the tenant with a notice
dated 18.03.2016, informing the tenant that
she had sold a part of house no. CK-48/178
to Saurabh Singh and others. The notice
said that Smt. Saroj Gupta had received the
current rent, inclusive of taxes up to the
month of February, 2015 from the tenant,
relating to the demised premises. The
notice also said that after execution of the
sale deed, she was no longer entitled to
receive rent for the demised premises,
which would be payable to Saurabh Singh
and others.

6. After service of this notice, the
tenant instituted an application under
Section 30(2) of the U.P. Act No.13 of 1972
(for short, ''the Act') on 30.05.2016, that
was registered as Misc. Case no.46 of
2016, Smt. Pushpa Gupta vs. Subhash
Chandra and others. These proceedings by
the tenant were brought with a case that a
portion of the demised premises was part of
house no. CK-48/178, the owner and
landlady whereof was Smt. Saroj Gupta,
and another portion of the said premises
was part of house no. CK-48/178-A, the
owners whereof were Subhash Chandra and
Pankaj Deovanshi (the landlords).

7. It was pleaded that Smt. Saroj
Gupta was not accepting rent, though she
was entitled to a share in it. Subhash
Chandra and Pankaj Deovanshi, on the
other hand, were insisting that the tenant
should attorn them as the owners and the
landlord of the demised premises in their
entirety. Considering the aforesaid facts,
the tenants said that a bona fide doubt has
arisen about the identity of the person
entitled to receive rent relating to the
demised premises, and, therefore, prayed
that they be permitted to deposit rent under
Section 30(2) of the Act. The present suit
for eviction came to be instituted in the
year 2017 by the landlords, wherein the
tenant put in her written statement on
31.10.2017. It was said in the written
statement that she was depositing rent
under Section 30(2) of the Act. The tenant,
however, admitted the fact that she had
been served with a notice dated 18.03.2016
by her former landlady, Smt. Saroj Gupta,
as hereinbefore detailed. Along with the
written statement an application, bearing
paper no.16-C was also made on behalf of
the tenant, seeking exemption from the
liability to deposit rent under Order XV
Rule 5 of the Code. The tenant asserted that
she may be exempted from making good
the deposit of rent, as envisaged under
Order XV Rule 5 of the Code, until
decision about the inter se apportionment
of rent between Smt. Saroj Gupta, on one
hand and Subhash Chandra and Pankaj
Deovanshi on the other. A further prayer
was made to permit the tenant to deposit
rent under Section 30(2) of the Act. The
landlords objected to the said application
and demanded striking off the tenant's
defence under Order XV Rule 5 of the
Code.

8. The Trial Court rejected that
application by means of an order dated
28.02.2019. The tenant carried an S.C.C.
Revision from the order dated 28.02.2019
to this Court, being S.C.C. Revision no.48
of 2019, Pushpa Gupta vs. Subhash
Chandra and another. The said Revision
was heard and dismissed by this Court vide
970 INDIAN LAW REPORTS ALLAHABAD SERIES
judgement and order dated 10.07.2019. The
aforesaid decision is reported in 2020 (2)
All L.J. 68. This Court while dismissing
S.C.C. Revision no.48 of 2019 inter partes
observed:

"55. The judgments in the case of Dr.
Ram Prakash Mishra (since deceased) v.
IVth Additional District Judge,
Etah
another, 1999 (1) ARC 7; Habiburahaman
v. District Judge, Jhansi and others 2000(1)
ARC 4; and Sanjay Agrawal v. Ganga
Prasad Agrawal and another, 2009(1) ARC
291: (2009 (5) All LJ (DOC) 184 (All)),
upon which reliance has been sought to be
placed by the revisionist are to the effect
that if there is sufficient material on record
to indicate that there are good reasons for
condoning the default the Court has a
reserve power to reject the application for
striking off the defence. There can be no
quarrel with the aforementioned legal
proposition that powers under Order XV
Rule 5 are not to be exercised in the case of
a mere technical default.

57. The present case, however, is not a
case where the revisionist is claiming
condonation of the default in making
compliance with the statutory provisions. It
is a case where the revisionist claims
exemption from complying with the
mandatory provisions as contained under
Order XV Rule 5 C.P.C., and in the absence
of any provision whereunder exemption
can be claimed from complying with the
conditions under Order XV Rule 5 C.P.C.
apart from consideration of a representation
in terms of Rule 5 (2) thereof the claim of
the revisionist is clearly unsustainable."

9. Taking a cue, as it were, from the
remarks of this Court in S.C.C. Revision
no.48 of 2019 above referred, the tenant
moved another application before the Trial
Court bearing paper no.42ग. This time the
prayer was in the following words
(translated into English from Hindi):

"It is, therefore, prayed that condoning
the delay, that has occurred on the
defendant's part, occasioned by mistake and
error based on the legal advice received
from her Advocate, she be permitted to
deposit in Court the entire rent under Order
XV Rule 5 of the Code due from the month
of March, 2015, or adjusting the rent,
already deposited by the tenant, under
Section 30(2) of the Act, she may be
permitted to deposit rent accrued from the
date of institution of the suit, in the interest
of Justice."

10. This application has come to be
dismissed by the Trial Court by means of
the order impugned.

11. Mr. Ashish Srivastava, learned
Counsel for the tenant, has argued that the
Trial Court has committed a manifest error
of law in rejecting the tenant's application
by misconstruing the provisions of Order
XV Rule 5 CPC. It is submitted that it has
always been both the endeavour and the
intention of the defendant to deposit due
rent and the application bearing paper
no.42-C, that has now been rejected by the
impugned order, seeks condonation of
delay in depositing the rent under Order
XV Rule 5 of the Code. The alternate
player to adjust the sum of money, already
deposited by the tenant under Section 30(2)
of the Act, and to permit deposit under
Order XV Rule 5 of the Code from the date
of the institution of the suit, also shows the
intention of the tenant to deposit all rent
due.

12. It is argued that the purpose of the
provisions of Order XV Rule 5 is to ensure
remittance of rent to the landlord and not to
1 All. Smt. Pushpa Gupta Vs. Subhash Chandra & Anr.
971
non-suit the tenant on a technicality. He
submits that the provisions of Order XV
Rule 5, where the tenant comes forward to
deposit rent, must receive not only a liberal
construction, but also the prayer ought to
be liberally granted.

13. In support of his submission,
learned Counsel for the tenant has placed
reliance upon a decision of this Court in
Sanjay
Agrawal
v.
Ganga
Prasad
Agrawal and another, 2009 (1) ARC 291.
As part of this submission, it is emphasized
that what is important is substantial
compliance with the provisions of Order
XV Rule 5 CPC, where deposit made under
Section 30(2) of the Act would enure to the
benefit of the tenant. The Trial Court, in
discarding the tenant's prayer to condone
the delay in complying with the provisions
of Order XV Rule 5 of the Act and
permitting the tenant to deposit rent, or in
alternate, to adjust the sum of money
deposited under Section 30(2) of the Act
and permitting her to deposit the rent from
the date of institution of the suit, has acted
in contravention of the provisions of Order
XV Rule 5 of the Code.

14. Learned Counsel for the tenant, in
support of his contention that deposit of
rent under Section 30(2) of the Act should
enure to her benefit, has placed reliance on
the decision of this Court in Sanjay
Agrawal (supra). He has drawn the Court's
attention to the decision in Sanjay
Agrawal, where it has been held:

"11. One of the points arises in his
case as to whether tender made by the
defendant under section 30 of the Act was
valid within the meaning of Order XV, Rule
5 of the Code. It is admitted fact that the
defendants have made deposit of the arrears
of rent under section 30 of the Act from
1.3.2000 to 31.8.2005, details of which
have been given in the reply of the plaintiff
annexed
with
the
affidavit
dated
16.12.2005. Such deposits ought to be
taken into account by the Trial Court
otherwise it would render sub-section (1) of
section 30 and sub-section (6) of section 30
otiose."

15. Mr. Atul Dayal learned Senior
Advocate, appearing for the landlords,
refuting the submissions of the learned
Counsel for the tenant, says that the law
laid down in Sanjay Agrawal is not good
law, in view of the decision of the Division
Bench in Haider Abbas v. Additional
District Judge (Court No.3) Allahabad
and others, 2006 (62) ALR 552 (All). In
this case, the learned Single Judge, finding
conflict of opinion between learned Single
Judges of the Court, had referred the
following question of law for decision by a
Larger Bench:

"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, C.P.C.?"

16. The Division Bench answered the
question in the following words:

"38. We, therefore, upon an analysis of
the provisions of Rule 5(1) of Order XV,
C.P.C., 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
972 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. So far as the issue whether the
tenant is entitled to an adjustment of
whatever he has deposited under Section
30(2) of the Act is concerned, this Court
must at once notice that this issue has been
gone into earlier by this Court and decided
inter partes by the decision in Pushpa
Gupta (supra) where it has been held:

"49. In the facts of the present case,
the revisionist-tenant having admitted to
have been served with a notice dated
18.3.2016 by the erstwhile owner Smt.
Saroj Gupta containing a recital to the
effect that she had sold a portion of the
house bearing House No. C.K 48/178,
Hadaha Varanasi, on 16.3.2015 to Saurabh
Singh and others, and that she had received
the rent inclusive of taxes upto the month
of February, 2015 from the revisionist
tenant in respect of the premises in
question, and further that after execution of
the sale deed she was no longer entitled to
receive rent for the aforesaid tenanted
portion and that the rent henceforth be paid
to Saurabh Singh and others leads to the
inescapable conclusion that there was no
doubt or dispute as to the person who was
entitled to receive rent in respect of the
building in question and clearly the
necessary jurisdictional facts for invocation
of the provisions of sub-section (2) of
Section 30 in terms of which the
revisionist-tenant could claim benefit of
deposit of rent in Court, did not exist."

18. The deposit made under Section
30(2) of the Act by the tenant had not been
held to be validly made by this Court in
Pushpa Gupta and that finding now
operates as res judicata. Therefore, that part
of the prayer in the application now made,
which asks for adjustment of the amount
deposited under Section 30(2) of the Act, is
not open to agitation any further at the
instance of the tenant in this Revision.

19. The next submission that has been
made is that the prayer in the earlier
application, which came to be decided in
Pushpa Gupta was to the effect of seeking
an exemption from complying with the
provisions of Order XV Rule 5, whereas,
by the present application the tenant seeks
to deposit the arrears of rent after
condonation of delay. Learned Counsel for
the tenant has also urged, as already
noticed, that the provisions of Order XV
Rule 5 must receive a liberal construction
in the tenant's favour, particularly, where on
facts, the tenant is ready to deposit the
entire rent due. Sadly, this question also is
no longer open to agitation at the tenant's
instance in this Revision for reason that,
that issue has also been decided by this
Court inter partes in Pushpa Gupta. In
Pushpa Gupta, it has been held:

"50. The provisions contained under
Order XV Rule 5 C.P.C., have been
consistently held to be mandatory, and it has
been held that the benefits conferred on
tenants under the rent control legislation can
be enjoyed only on the basis of strict
compliance of the statutory provisions. There
is no provision to claim exemption from
complying with the conditions under Order
XV Rule 5 C.P.C. apart from consideration of
a representation made by the defendant as per
Order 15 Rule 5 (2) C.P.C.
1 All. Janki Prasad Vs. Sanjay Kumar & Ors.
973

53. It has been consistently held that
the tenant is required to comply with the
requirements of Order XV Rule 5 CPC and
make the deposits strictly in accordance
with the procedure contained therein, and
any deposit not made in consonance with
the said rule cannot enure the benefit of the
tenant. Also, the amount to be deposited by
the tenant during the continuation of the
suit is required to be deposited in the court
where the suit is filed failing which the
court may strike off the defence of the
tenant since the deposits made by the tenant
under Section 30 after the first hearing of
the suit cannot be taken into consideration.

54. The provisions under Order XV
Rule 5(2) provides a locus poenitentiae to
the
defaulting
tenant
to
make
a
representation, which must be made within
ten days of the first hearing or within a
week from the date of accrual of rent as the
case may be, and if the representation is not
made within the specified time the court
has no jurisdiction to consider a time barred
representation or condone the delay or
extend
time.
Apart
from
the
aforementioned provision of filing a
representation there is no provision wherein
exemption can be claimed from complying
the conditions under Order XV Rule 5."

 (Emphasis by Court)

20. The holding in Pushpa Gupta clearly
shows that the finding on the question of law has
become final inter partes, andthat the Court has no
jurisdiction to condone the delay in depositing rent
under Order XV Rule 5 of the Code, if the tenant
were to represent her case about the deposit to be
made on the first date of hearing beyond ten days
of that date. It has been held that the Court has no
power to condone the delay beyond ten days in
the case of deposit of accrued rent due on the first
date of hearing, or beyond one week in the case of
rent that accrues from month to month. This Court
has clearly held inter partes that the Court has
no power to condone delay in making good the
deposit of rent under Order XV Rule 5 of either
kind beyond the specified period of time
envisaged under Order XV Rule 5(2) of the Code.
Here, the prayer in the application clearly shows
that the tenant has sought to condone the delay
much after the first date of hearing, losing all the
time in pursuing the first application that was
made seeking exemption from deposit under
Order XV Rule 5 of the Code, up to this Court in
Revision. It is not the tenant's case that the first
date of hearing in the suit had not gone by or that a
period of ten days of the first date of hearing not
elapsed, until time when the application bearing
paper no.42-C was made. Clearly, the application
is now beyond the condonable limit of delay
available to the Court to exercise its discretion, a
legal position that has been finally settled inter
partes by this Court in Pushpa Gupta.

21. This Court is, therefore, of clear opinion
that the tenant's application bearing paper no.42-C
could not have been granted by the Trial Court. It
has rightly been rejected.

22. In the result this Revision fails and is
dismissed. The interim order dated 17.12.2019 is
hereby vacated. There shall be no order as to costs.
----------
(2022)01ILR A973
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.12.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Second Appeal No. 247 of 2015

Janki Prasad ...Appellant
Versus
Sanjay Kumar & Ors. ...Respondents

Counsel for the Appellant: