# Smt. Ranjana Mishra Revisionist v. Kamal Kumar & Ors

- **Citation:** (2020) 6 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** S.C.C. Revision No. 33 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ranjana-mishra-revisionist-v-kamal-kumar-ors-45850
- **Pages:** 3

## Headnote

Law
-
Code
of
Civil
Procedure,1908- Section 115-Order XV
Rule 5- suit for decree of eviction and arrears
of rent-Strike off defence of tenant on failure to
deposit the admitted rent-the issue as to
whether the tenant was in use or not in the
building in question is the subject-matter of
evidence-the said submission is not sustainablethe requirement of Order XV Rule 5 is
mandatory
requirement-thus
court
below
committed
no
illegality
in
allowing
the
application-(Para 3 to 14)

B. The Order XV Rule 5 of CPC provides that in
any suit by a lessor for the eviction of a lessee
after determination of his lease and for the
recovery from him of rent or compensation for
use and occupation, the defendant/lessee 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 percent per annum.(Para 12, 13)

C. The purpose of enacting the provision of Order XV
Rule 5 was not to give lever to the landlord to get the
tenant punished for insignificant lapses, but to ensure
that the dues of the landlord are properly secured
and he can get his rent regularly even though the
litigation may continue.

Landlord
filed
a
suit
against
the
applicant/revisionist on the ground that the
applicant has not paid rent. Notice was given for
terminating the tenancy. The applicant denied
the same and stated that the applicant is not in
use and occupation of the residential building as
the landlord has put a lock on the staircase of
the building.(Para 3, 4, 5)

The revision is dismissed. (E-6)

## Text

52 INDIAN LAW REPORTS ALLAHABAD SERIES
month as against the agreed rate of
Rs.1600. The Hon'ble Supreme Court
confirmed the award of mesne profits at the
rate of Rs.4000 per month."

26. For the reasons given above, this
Court finds that trial court has not
committed any illegality or jurisdictional
error in decreeing the suit. Consequently,
the revision lacks merit and is, accordingly,
dismissed with no order as to cost.
----------
(2020)06ILR A52
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision No. 33 of 2020

Smt. Ranjana Mishra ...Revisionist
Versus
Kamal Kumar & Ors. ...Respondents

Counsel for the Revisionist:
Sri Sri Rishikesh Tripathi

Counsel for the Respondents:
-----

A.
Civil
Law
-
Code
of
Civil
Procedure,1908- Section 115-Order XV
Rule 5- suit for decree of eviction and arrears
of rent-Strike off defence of tenant on failure to
deposit the admitted rent-the issue as to
whether the tenant was in use or not in the
building in question is the subject-matter of
evidence-the said submission is not sustainablethe requirement of Order XV Rule 5 is
mandatory
requirement-thus
court
below
committed
no
illegality
in
allowing
the
application-(Para 3 to 14)

B. The Order XV Rule 5 of CPC provides that in
any suit by a lessor for the eviction of a lessee
after determination of his lease and for the
recovery from him of rent or compensation for
use and occupation, the defendant/lessee 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 percent per annum.(Para 12, 13)

C. The purpose of enacting the provision of Order XV
Rule 5 was not to give lever to the landlord to get the
tenant punished for insignificant lapses, but to ensure
that the dues of the landlord are properly secured
and he can get his rent regularly even though the
litigation may continue.

Landlord
filed
a
suit
against
the
applicant/revisionist on the ground that the
applicant has not paid rent. Notice was given for
terminating the tenancy. The applicant denied
the same and stated that the applicant is not in
use and occupation of the residential building as
the landlord has put a lock on the staircase of
the building.(Para 3, 4, 5)

The revision is dismissed. (E-6)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the revisionapplicant.

2. By means of present revision, the
revision-applicant has assailed the order
dated 03.01.2019 passed by III Additional
District Judge/Special Judge (D.A.A.),
Agra in SCC Case No.66 of 2015 (Kamal
Kumar and others Vs. Smt. Ranjana
Mishra) whereby the application of the
respondents-landlord under Order XV Rule
5 CPC has been allowed and the defence of
the revision-applicant has been struck off.

3. The respondents-landlord has filed
SCC Case No.66 of 2015 (Kamal Kumar
and others Vs. Smt. Ranjana Mishra)
against the revision-applicant for eviction
and arrears of rent on the ground that the
revision-applicant
is
a
tenant
of
a
residential building at the rate of Rs.2200/-
per month. The revision-applicant has not
paid rent from 01.01.2010 and has
6 All. Smt. Ranjana Mishra Vs. Kamal Kumar & Ors.
53
committed default in payment of rent. It is
further stated that notice terminating the
tenancy was given on 20.08.2015 which
was replied by the revision-applicant on
17.09.2015. The suit has been instituted on
29.09.2015 for decree of eviction and
arrears of rent.

4. In the aforesaid suit, written statement
has been filed by the revision-applicant denying
the averments of the plaint. It was stated that the
revision-applicant has not defaulted in payment
of rent.

5. It appears that subsequent to filing of
the written statement, the revision-applicant
filed amendment application on 05.12.2017 to
incorporate the fact that the revision-applicant is
not in use and occupation of the residential
building as the respondents-landlord has put a
lock on the staircase of the building due to
which the revision-applicant is not able to use
and occupy the building. The said amendment
application was allowed by the trial court.

6. The respondents-landlord filed
application under Order XV Rule 5 CPC on
26.10.2017 praying that the defence of revisionapplicant be struck off as she has not complied
with the mandatory requirement of Order XV
Rule 5 CPC in not depositing the admitted
amount due with interest.

7. The aforesaid application was
contested by the revision-applicant contending
inter-alia that since she is not in use and
occupation of the aforesaid building, therefore,
she is not liable to deposit any amount as
contemplated under Order XV Rule 5 CPC.

8. The trial court by order dated
03.01.2019
allowed
the
application
by
recording a finding that the issue as to whether
the revision-applicant is in use and occupation
of the building in question is the subject matter
of evidence which can be adjudicated on the
basis of evidence led by the parties and thus, the
revision-applicant is required to comply with
the requirement of Order XV Rule 5 CPC and
as the revision-applicant has not complied with
the same, her defence is liable to be struck off.

9. Challenging the aforesaid order,
learned counsel for the revision-applicant
has contended that the court below has
committed jurisdictional error in allowing
the application inasmuch as it is specific
case of the revision-applicant that she is not
in use and occupation of the property in
question, therefore, the requirement of
deposit of admitted amount due with
interest contemplated in Order XV Rule 5
CPC is not attracted in the present case.

10. He submits that a bare reading of
Order XV Rule 5 of CPC shows that
admitted due amount as contemplated
under Order XV Rule 5 CPC is to be
deposited by the lessee only when he is in
use and occupation of the property in
question. Thus, the submission is that as the
revision-applicant was not in use and
occupation
of
building
in
question,
therefore, he is not liable to comply with
the requirement of Order XV Rule 5 of
CPC. He further submits that the revisionapplicant has also laid set-off claim against
the respondents in written statement as
contemplated under Order VIII (1) of CPC,
and the amount claimed by the revisionapplicant is more than the admitted rent and
thus, for the said reason also revisionapplicant is not liable to comply with the
requirement of Order XV Rule 5 of CPC.

11. I have considered the submissions
of learned counsel for the revisionapplicant and perused the record.

12. The Order XV Rule 5 of CPC
provides that in any suit by a lessor for the
54 INDIAN LAW REPORTS ALLAHABAD SERIES
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/lessee 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 cent per annum.

13. Explanation-1 defines the expression
'first hearing' which means that the date for
filing written statement or for hearing
mentioned in the summons or where more than
one of such dates are mentioned, the last of the
dates mentioned is the date of first hearing.

14. In the instant case, according to the
revision-applicant, she is not liable to comply
with the requirement of Order XV Rule 5 of
CPC as she is not in use and occupation of the
premises.
The
said
submission
is
not
sustainable for the reason that the issue as to
whether the revision-applicant is in use and
occupation of the property can be decided only
upon the evidence of the parties and not on the
basis of ex-parte version of revision-applicant
that she is not in use and occupation of the
property in question. The requirement of Order
XV Rule 5 of CPC to deposit entire admitted
amount due alongwith interest is statutory
requirement which the revision-applicant has to
comply with as Order XV Rule 5 of CPC does
not contemplate or envisage any situation that
in case tenant is not in occupation and use of the
property in question or has laid set-off claims
against the lessor, the requirement of deposit of
admitted amount due alongwith interest as
provided in Order XV Rule 5 of CPC is not to
be complied with.

15. In view of the aforesaid fact, this
Court is of the opinion that the court below
has not committed any illegality or
jurisdictional
error
in
allowing
the
application under Order XV Ruel 5 of CPC
of respondents-landlord. Consequently, the
revision lacks merit and is dismissed.

15. In view of the aforesaid fact, this
Court is of the opinion that the court below
has not committed any illegality or
jurisdictional
error
in
allowing
the
application under Order XV Rule 5 of CPC
of respondents-landlord. Consequently, the
revision lacks merit and is dismissed.
----------
(2020)06ILR A54
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision No. 142 of 2014

Hari Om Gupta & Anr. ...Revisionists
Versus
Smt. Jyoti Bhatia ...Respondent

Counsel for the Revisionists:
Sri Kiran Kumar Arora

Counsel for the Respondent:
Sri Pradeep Saxena, Sri Ram Pratap Yadav

A. Civil Law - Code of Civil Procedure,
1908- Section 115 - The Provincial
Small Causes Courts Act,1887-Section25 & Indian Evidence Act, 1872Section 65- eviction and arrears of rentapplicants were carrying on business on
the suit property, property was let out to
applicants on a monthly rent of Rs.
25,000/-per month for two years-applicants
were to vacate the suit property after the
expiry of the term of the tenancy-notice
was served for termination and claimed of
rent and mesne profit-applicants produced
photocopy of agreement to sell-applicants
failed to reply why they did not produce
original agreement to sell-they only stated
that they possessed the original-ingredients
of Section 65(c) of the Act, 1872 are