# Smt. Shakuntala Soni Revisionist v. Devendra Kumar Rawat

- **Citation:** (2023) 1 ILRA 1320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Civil Revision No. 444 of 2012
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shakuntala-soni-revisionist-v-devendra-kumar-rawat-49120
- **Pages:** 5

## Headnote

Civil Law - Code of Civil Procedure,1908 -
O.XV Rule 5-Striking off defence-Civil
revision - Rent payment - Order XV Rule 5 CPC-
Striking off defence for failure to deposit
admitted rent- Section 30 of the UP Act No.13 of
1972- plaintiff failed to prove that she paid rent
- Revision lacks merit.

Dismissed. (E-9)

List of Cases cited:

## Text

1320 INDIAN LAW REPORTS ALLAHABAD SERIES
cause courts is summary in nature. Hence,
this Court is in conformity with the finding
recorded by the lower court that on the
basis of pendency of Original Suit No.150
of 2011 the SCC suit is not liable to be
stayed under Section 10 CPC.

18. The option was open to the
revisionist to move an application under
Section 23 of the Act, 1887 that since the
question of title is involved, therefore, before
deciding the question of title this SCC suit
cannot be prosecuted any more. He may also
produce evidence and may establish that
there was no relation of land-lord and tenant
between the parties or it had been broken
after entering into the agreement and if the
SCC Court finds that the serious question of
title is involved, it may drop the proceeding
but so far as the applicability of Section 10
CPC is concerned, this Court is of the
considered view that this SCC revision
cannot be stayed on account of pendency of
an original suit previously instituted by the
defendant.

19. On the basis of above, this Court
is of the view that this revision lacks merit
and is liable to be dismissed.

20. Accordingly, this revision is
dismissed with costs.

21. A copy of this order be sent to the
Court of ADJ-I, Jhansi who shall proceed
with the SCC suit in accordance with law.
----------
(2023) 1 ILRA 1320
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 444 of 2012

Smt. Shakuntala Soni ...Revisionist
Versus
Devendra Kumar Rawat ...Opposite Parties

Counsel for the Revisionist:
Sri Gulrez Khan, Sri J.H. Khan

Counsel for the Opposite Parties:
Smt. Abha Gupta, Sri S.R. Gupta

Civil Law - Code of Civil Procedure,1908 -
O.XV Rule 5-Striking off defence-Civil
revision - Rent payment - Order XV Rule 5 CPC-
Striking off defence for failure to deposit
admitted rent- Section 30 of the UP Act No.13 of
1972- plaintiff failed to prove that she paid rent
- Revision lacks merit.

Dismissed. (E-9)

List of Cases cited:

1. Ashik Ali Vs 8th ADJ, 2001 (444) ALR 524.

2. Pradyuman Ji Vs Special/ADJ, Ballia & ors.,
2008 (2) ARC 19

3. Kailash Shukla Vs ADJ, Deoria & ors., 2004
(1) ARC 615

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This civil revision has been
preferred by the tenant defendant against
the order dated 29.05.2012 passed by ADJ,
Court No.1, Banda by which the plaintiff's
suit was decreed on merit after striking off
the written statement of the defendant.

2. In brief facts of the case are that
revisionist Smt. Shakuntala Soni plaintiff
filed an SCC suit in the Court of Judge,
SCC Court, Banda on 04.11.2009 for
eviction of the defendant tenant from the
shop in suit and for realization of rent from
1 All. Smt. Shakuntala Soni Vs. Devendra Kumar Rawat
1321
04.11.2006 to 17.12.2006 at the rate of
Rs.650/- per month amounting Rs.958/-
and for damages for use and occupation of
the shop in suit since 18.12.2006 to
03.11.2009 at the rate of Rs.22.990/- and
also for the payment of water tax and house
tax at the rate of Rs.84/- per month each
since 04.11.2006 to 03.11.2009 alongwith
Rs.500/- as expenses for notice.

3. In brief facts of the case are that the
plaintiff is the owner and land-lord of a
shop at first floor in Shri Ram Market,
Chowk Bazar City Banda in which
defendant was the tenant since December,
2004 at the monthly rate of rent of Rs.550/-
as per condition since 2005 the rate of rent
became Rs.650/- per month which had to
be increased Rs.100/- per month after every
5 years.

4. There was dues arrears of rent on
the defendant from July, 2004 to December,
2004 for six months at the monthly rate of
Rs.500/- amounting to Rs.3,00/- and since
January, 2005 to October, 2006 at the rate
of Rs.650/- per month amounting to
Rs.14,300/- and also water tax since 2004
to 2006 at the rate of Rs.1012/- per year
amounting to Rs.3036/- and house tax from
the year 2004 to 2006 at the rate of
Rs.675/- per year. The tenancy was month
to month and the provisions of UP Act
No.13 of 1972 were not applicable in spite
of the repeated request and demand, the
defendant did not pay the rent. Hence, a
registered
notice
through
advocate
Ashutosh Nigam was sent on 07.11.2006
under Section 106 of Transfer of Property
Act to the defendant and a demand was
made to repay the rent and house tax and
water tax by the said notice. The tenancy
was also terminated after 30 days. The
registered notice was served upon the
defendant on 16.11.2006. In spite of service
of notice neither the defendant paid the
rent, water tax and house tax nor vacated
and delivered the possession to the
plaintiff. Since 17.12.2006 the defendant
lost the character to be tenant. The
plaintiffs are entitled to receive the
aforementioned rent, damages and tax
amount and a decree of eviction.

5. The defendant tenant has filed
written statement denying the allegations of
the plaint alongwith the affidavit. A copy of
the order dated 12.08.2010 is on record
which shows that application 21(c) moved
by the plaintiff was allowed and the
defence of the defendant was struck off on
account of non-deposition of admitted rent
in the court. The deposit made under
Section 30 of the UP Act No.13 of 1972
was not accepted by the court because
defendant appeared in the court and filed
written statement on 03.04.2010 but she
had not deposited the admitted rent,
therefore, Order XV Rule 5 CPC played the
role which is as under:-

"5. Striking off defence for
failure to deposit admitted rent.--(1) 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
cent. 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 the entire amount admitted by
him to be due or monthly mount due as
aforesaid, the Court may, subject to the
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of sub-rule (2) strike of his
defence.

Explanation 1.- The expression
"first hearing" means 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.

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, deposited in any
Court.

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 on other
deduction except the taxes, if any, paid to a
local authority, in respect of the building on
lessor's account.

(2) Before making an Order for
striking off defence, that 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:

Provide further that if the amount
deposited includes any sums claimed by the
depositor to be deductible or any account,
the Court may require the plaintiff to
furnish the security for such sum before he
is allowed to withdraw the same."

6. The revisionist has taken grounds
that since her residential house was
sealed/attached in the year 2005 hence she
could not produce the receipt of payment of
rent. There was no arrears of rent from the
year 2004 but the rent had been paid till
July, 2006 and the land-lord refused to
accept the rent from August, 2006. After
refusal the payment of rent was sent
through money order but it was returned
with the endorsement "not found out of
station". It amounts to refusal. Application
of the revisionist under Section 30 was
illegally dismissed even after knowing the
pendency of proceedings under Section 30
the plaintiff deliberately did not contest the
same. Court below erred in law in
assuming the date 01.12.2009 to be the first
date
of
hearing
when
adjournment
application was moved for filing written
statement in future. The said date could not
be treated as the first date of hearing and
the lower court erred in law in striking off
the defence. The revisionist never defaulted
in payment of rent. The notice dated
07.11.2006 is liable to be waived as in
August, 2006 the payment of rent was sent
through money order. If the application
under Section 30 would have been allowed
to deposit the rent in the court there would
not have been arrears of rent due upon the
revisionist defendant. The suit is barred by
limitation and no decree could have been
granted by the court below. There was no
water connection hence the court below
erred in decreeing the arrears of water tax
hence the revision be allowed and the
impugned order be set aside.

7. In this case the first date of hearing
was 01.12.2009 on that date defendant
1 All. Smt. Shakuntala Soni Vs. Devendra Kumar Rawat
1323
appeared and applied for time to file
written
statement.
On
23.12.2009,
19.01.2010, 08.02.2010, 04.03.2010 and
27.03.2010 the case was adjourned and the
written statement was filed on 03.04.2010.
Even after filing an application under Order
XV Rule 5 CPC.

8. The Court noted that on 15.04.2010
the defendant had not deposited the
admitted rent but the defendant has stated
in her objection 30(c) that the plaintiffs
were not interested in receiving the rent as
they
refused
to
receive
the
rent.
Consequently she sent money order on
12.11.2006 which was returned with false
report. According to her she had also
moved an application for deposit of the rent
before the Civil Judge (Junior Division)
which was rejected and the revision was
also rejected by the ADJ-II on 27.08.2009.
After that this SCC suit was filed. It was
noticed by the court that the defendant was
continuously attending the court but she did
not comply with the provisions of Order
XV Rule 5 CPC.

9. Besides accepting the judicial
precedents Ashik Ali Vs. 8th ADJ, 2001
(444) ALR 524. The trial court relied on
the
precedent
Pradyuman
Ji
Vs.
Special/ADJ, Ballia and others, 2008 (2)
ARC 19 in which it was held that on the
first date of hearing if the tenant did not
deposit the entire amount admitted by him,
his defence should be struck off under
Order XV Rule 5 CPC and deposit under
Section 30(1) cannot be taken into
consideration for the purpose of deposit to
be made under second part of Order XV
Rule 5 CPC. The trial court has also relied
on judicial precedent Kailash Shukla Vs.
ADJ, Deoria and others, 2004 (1) ARC
615 in which similar principles have been
laid down.

10. Since this order remain intact
hence the written statement filed by the
defendant was not considered and the
defendant was not permitted to adduce the
evidence though she was permitted to
cross-examine the plaintiff's witness and to
advance the argument. Since no written
statement was available in the eyes of law
hence the trial court has not framed the
points for determination though it has
discussed the necessary aspect of the case.

11. In this case the tenancy is
admitted. The plaintiff has proved the
notice,
registry
receipt
and
acknowledgement. Since the defence of the
defendant has been struck of, therefore, the
averments of the written statement would
not be considered and would not be taken
into consideration.

12. From the order dated 12.08.2010
it is established that the defendant had not
deposited the admitted rent in the court and
it is established law that the deposits under
Section 30(1) would not be considered for
the purposes of this suit. More so, the
application of the defendant tenant under
Section 30 has been dismissed and its
revision has also been dismissed.

13. PW-1, Devendra Kumar Rawat
has proved the case and his testimony is
unrebutted. The defendant could not prove
that she has paid any rent or other charges.
In cross-examination PW-1 has deposed
that there are total 7 shops in the house in
which
there
are
separate
electric
connections in all shops. Besides making
suggestion which have been denied by the
witness even no proper cross-examination
has been done from the side of the
defendant
and
whatsoever
crossexamination has been done, therefrom the
defendant is not getting any benefit. The
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant
was
miserably
failed
in
establishing its defence and creating any
doubt in the case and evidence of the
plaintiff land-lord. The trial court has
decreed the suit in toto as prayed in the
memo of revision the defendant has taken
plea that since the residential house of the
defendant was sealed since 2005, therefore,
she could not produce the receipts of
payment of rent. For this neither the court
nor the plaintiff are responsible. It does not
appear to be a true fact that instead of
keeping the records of payment in shop in
suit, the same would be kept in the
residential house. If it was so, the defendant
could have moved an application to direct
the plaintiff to produce the counter file of
the receipt. Mere sending rent money
through money order which could not be
received by the plaintiff as he was out of
station, it cannot be said that the defendant
tried to make the payment in bona fide
manner. The defendant should have sent
rent amount again or she could have
tendered the payment personally. There is
no defect regarding dismissal of the
application of the defendant under Section
30 of the UP Act No.13 of 1972. It is
established law that deposit under Section
30 would not be taken into consideration
for the purposes of SCC suit and it cannot
be permitted where the Act No.13 of 1972
has no applicability.

14. Thus this Court is of the view that
the order passed by the trial court does not
suffer from any infirmity. The revision
lacks merit and is liable to be dismissed.

ORDER

15. This revision is dismissed with
costs.
----------
(2023) 1 ILRA 1324
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

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

Civil Revision No. 57 of 2022

Nauman Ali ...Revisionist
Versus
Mazahar Hasan & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri
Mahboob
Ahmad,
Sri
Irfan
Alim
Siddiqui, Sri Umesh Vats

Counsel for the Opposite Parties:
Sri Anurag Yadav, Sri Gulrez Khan, Sri
Javed Husain Khan, Sri Punit Kumar Gupta

UP Waqf Tribunal Rules -Rule 3(4)-Revision
challenges the Waqf Tribunal's order - raised
issue of Tribunal benches comprising two
members - Rule 3(4) of UP Waqf Tribunal Rules
- against the statutory mandated - Waqf Act
Section 83(4) - A three-member composition -
Judgment emphasizes the statutory framework -
Tribunal's constitution defined in Section 83
cannot be altered through rules. (E-9)

List of Cases cited:

1. Naushad Raza & ors. Vs Waqf Prabandhak,
Committee of Waqf Qabristan & ors.

2. Faez Aftab Vs Zafar Ali Khan & ors.

3. Abrar Husain Vs U.P. Waqf Tribunal, Lucknow
& anr., 2017 SCC OnLine All 4081

(Delivered by Hon'ble J.J. Munir, J.)

This revision under the proviso to subSection (9) of Section 89 of the Waqf Act,
1995 is directed against the order of the
Waqf Tribunal dated 28.02.2022 passed in
Case No. 286 of 2017, rejecting the