# Virendra Kumar Malik (Goyala) /Defendant v. Brigadier Subhash Chnada Jauhar

- **Citation:** (2022) 10 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-16
- **Case number:** Matters Under Article 227 No. 1562 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-malik-goyala-defendant-v-brigadier-subhash-chnada-jauhar-47673
- **Pages:** 10

## Headnote

A. Civil Law - Tenancy - Code of Civil
Procedure, 1908 - Order XV Rule 5 - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 30.

Tenant's Obligation - Deposit at the first
hearing of the suit is to be made of all arrears of
rent, admitted by the tenant to be due, together
with interest at the rate of 9% per annum. This
is one part of the tenant's obligation. The other
is that, throughout the continuation of the suit,
the tenant has to regularly deposit the monthly
rent within a week from the date of its accrual.
In the event of default, either in the
deposit of the admitted rent due on the
first date of hearing, or the regular
deposit of monthly rent within a week of
its falling due, the Court is empowered to
strike off the tenant's defence. (Para 15)

There is a clear period of 10 days only during
which, in respect of the first part of the
obligation under sub-Rule (1) or under the
second part, the Court may consider a
representation regarding the delay in deposit.
Beyond that period of time, that is to say, 10
days, in one case from the date of first hearing
and in the other from the expiry of a week,
when the rent falls due, the Court cannot
consider the tenant's representation against the
order striking off the defence. The first part of
sub-Rule (1) of Rule 5 clearly relates to the
accrued arrears of rent/damages for use and
occupation at the time of institution of the suit,
which have to be made good, on or before the
first hearing of the suit. (Para 17)

In the present case, on two occasions, in
the first round of agitation of his rights by
the tenant, the Trial Court as well as the
Revisional
Court
passed
some
nonconservative orders, granting indulgence
of an extended time before defence of the
tenant would stand struck off. It might have
been a decision taken in the background of the
Covid-19 pandemic, though not said so by the
Courts in the orders impugned. (Para 24)

The Revisional Court in the earlier instance
extended time for the tenant to comply with the
order dated 15.02.2021 (which granted him
indulgence of not striking off his defence by
extending some time to deposit the rent due)
passed by the Trial Court, the benefit whereof
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
he had lost, which the tenant again did not
avail. Instead, he took up cudgels again against
the landlords by moving the Trial Court for a
different relief in the matter of deposit of rent.
The aforesaid conduct of the tenant does not
entitle him to any further indulgence. The
provisions of Order XV Rule 5 CPC cannot come
to the tenant's aid any further, the time for
compliance thereunder having long expired.
Moreover, the stand of the tenant, that has
been consistently vacillating and smacking of in
equity, does not entitle him to relief in the
exercise of our jurisdiction u/Article 227 of the
Constitution. (Para 25)

B. Words and Phrases - (i)'entire amount
admitted to be due' - Explanation 2 to subRule (1) of Rule 5 of Order XV defines the
expression "entire amount admitted to be due"
as the gross sum of money, due on account of
rent or damages for use and occupation,
calculated at the admitted rate of rent, for the
admitted period that it is in arrears after
deduction of nothing else but taxes, if any, paid
to the Local Authority, relating to the tenanted
premises on the lessor's account and the
amount, if any, deposited u/s 30 of U.P. Act No.
13 of 1972. (Para 15)

(ii) 'monthly amount due' - By virtue of
Explanation 3, the monthly amount due has
been defined as the amount due every month,
whether on account of rent or damages for use
and occupation, at the admitted rate of rent,
without deducting anything except taxes paid to
a Local Authority on the lessor's account, in
respect of the tenanted premises. By the
provisions of sub-Rule (2) of Rule 5 of Order XV,
it has been made explicit that while making an
order striking off defence, the Court may
consider any repres

## Text

10 All. Virendra Kumar Kaushik (Goyala) Vs. Brigadier Subhash Chnada Jauhar (retired) & Anr. 1109

30. At this stage it would be apt to state
that there has been a concurrent finding by two
courts with regards to the question of territorial
jurisdiction. The same is also been affirmed by
this court.

31. The complainant/petitioner is an
Advocate by profession as has been declared by
him in the affidavit given in the present petition
before this Court. Even in the alleged legal
notice dated 07.01.2019 sent by him, the copy
of which is annexed as Annexure No. S.A-3 to
the supplementary affidavit dated 07.09.2022 in
the bottom at the place of his signature he has
disclosed himself to be an Advocate. He has
clearly abused the process of law. In these
circumstances, this Court imposes a token cost
of Rs. 5,000/- on him to be paid within 30 days
from today in the Mediation and Conciliation
Centre of this Court for utilization therein.
----------
(2022) 10 ILRA 1109
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2022

BEFORE

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

Matters Under Article 227 No. 1562 of 2022
(CIVIL)

Virendra Kumar Malik (Goyala)
 ...Petitioner/Defendant
Versus
Brigadier
Subhash
Chnada
Jauhar
(retired) & Anr. ...Plaintiffs/Respondents

Counsel for the Petitioner:
Sri Vikas Mani Srivastava, Sri Ravindra
Kumar Srivastava

Counsel for the Respondents:
Sri Ashutosh Mishra, Sri Rahul Mishra

A. Civil Law - Tenancy - Code of Civil
Procedure, 1908 - Order XV Rule 5 - Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 30.

Tenant's Obligation - Deposit at the first
hearing of the suit is to be made of all arrears of
rent, admitted by the tenant to be due, together
with interest at the rate of 9% per annum. This
is one part of the tenant's obligation. The other
is that, throughout the continuation of the suit,
the tenant has to regularly deposit the monthly
rent within a week from the date of its accrual.
In the event of default, either in the
deposit of the admitted rent due on the
first date of hearing, or the regular
deposit of monthly rent within a week of
its falling due, the Court is empowered to
strike off the tenant's defence. (Para 15)

There is a clear period of 10 days only during
which, in respect of the first part of the
obligation under sub-Rule (1) or under the
second part, the Court may consider a
representation regarding the delay in deposit.
Beyond that period of time, that is to say, 10
days, in one case from the date of first hearing
and in the other from the expiry of a week,
when the rent falls due, the Court cannot
consider the tenant's representation against the
order striking off the defence. The first part of
sub-Rule (1) of Rule 5 clearly relates to the
accrued arrears of rent/damages for use and
occupation at the time of institution of the suit,
which have to be made good, on or before the
first hearing of the suit. (Para 17)

In the present case, on two occasions, in
the first round of agitation of his rights by
the tenant, the Trial Court as well as the
Revisional
Court
passed
some
nonconservative orders, granting indulgence
of an extended time before defence of the
tenant would stand struck off. It might have
been a decision taken in the background of the
Covid-19 pandemic, though not said so by the
Courts in the orders impugned. (Para 24)

The Revisional Court in the earlier instance
extended time for the tenant to comply with the
order dated 15.02.2021 (which granted him
indulgence of not striking off his defence by
extending some time to deposit the rent due)
passed by the Trial Court, the benefit whereof
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
he had lost, which the tenant again did not
avail. Instead, he took up cudgels again against
the landlords by moving the Trial Court for a
different relief in the matter of deposit of rent.
The aforesaid conduct of the tenant does not
entitle him to any further indulgence. The
provisions of Order XV Rule 5 CPC cannot come
to the tenant's aid any further, the time for
compliance thereunder having long expired.
Moreover, the stand of the tenant, that has
been consistently vacillating and smacking of in
equity, does not entitle him to relief in the
exercise of our jurisdiction u/Article 227 of the
Constitution. (Para 25)

B. Words and Phrases - (i)'entire amount
admitted to be due' - Explanation 2 to subRule (1) of Rule 5 of Order XV defines the
expression "entire amount admitted to be due"
as the gross sum of money, due on account of
rent or damages for use and occupation,
calculated at the admitted rate of rent, for the
admitted period that it is in arrears after
deduction of nothing else but taxes, if any, paid
to the Local Authority, relating to the tenanted
premises on the lessor's account and the
amount, if any, deposited u/s 30 of U.P. Act No.
13 of 1972. (Para 15)

(ii) 'monthly amount due' - By virtue of
Explanation 3, the monthly amount due has
been defined as the amount due every month,
whether on account of rent or damages for use
and occupation, at the admitted rate of rent,
without deducting anything except taxes paid to
a Local Authority on the lessor's account, in
respect of the tenanted premises. By the
provisions of sub-Rule (2) of Rule 5 of Order XV,
it has been made explicit that while making an
order striking off defence, the Court may
consider any representation made by the tenant
in that behalf, provided the representation is
preferred within 10 days of the first hearing or
of the expiry of the week, referred to in subRule (1) of Rule 5. (Para 16)

Writ petition rejected. (E-4)

Precedent followed:

1. Dr. Ram Prakash Mishra (Dead) Vs IVth
Additional District Judge, Etah anr., 1999 (1)
ARC 7 (Para 22)
2. Habiburahaman Vs District Judge, Jhansi &
ors., 2000 (1) ARC 4 (Para 22)

3. Sanjay Agrawal Vs Ganga Prasad Agrawal &
anr., 2009 (1) ARC 291 (Para 22)

4. Pushpa Gupta Vs Subhash Chandra & anr.,
2019 (8) ADJ 376 (Para 22)

5. Haider Abbas Vs Additional District Judge &
ors., 2006 (1) ADJ 197 (All) (DB) (Para 23)

Present petition assails judgment and
order dated 16.08.2021 and 17.01.2022,
passed by District Judge, Meerut.

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

1. This petition under Article 227 of the
Constitution is directed against the judgment
and order dated 16.08.2021 passed by the
District Judge, Meerut in S.C.C. Revision No.
12 of 2021, dismissing the said revision
preferred
by
the
petitioner-tenant
and
upholding the order of the Judge, Small
Cause Court dated 16.03.2021 in S.C.C. Suit
No. 78 of 2014, clarifying the position that
the tenant's defence stood stuck off in terms
of an earlier order passed by the Trial Court
on 15.02.2021. Also, under challenge is a
judgment and order dated 17.01.2022 passed
by the District Judge, Meerut, dismissing
S.C.C. Revision No. 19 of 2021 and
affirming an order dated 31.08.2021 passed
by the Judge, Small Cause Court, Meerut in
S.C.C. Suit No. 78 of 2014. The latter orders
of the Revisional Court and the Trial Court
are a sequel to the two earlier orders,
hereinabove mentioned, passed by the
Revisional Court and the Trial Court.

2. Heard learned Counsel for the
petitioner in support of the motion to admit
this petition to hearing.

3. According to the plaintiffrespondents (for short, ''the landlords'), the
10 All. Virendra Kumar Kaushik (Goyala) Vs. Brigadier Subhash Chnada Jauhar (retired) & Anr. 1111
defendant-petitioner/ tenant (for short, ''the
tenant') is a tenant in a part of Bungalow
No. 143, B.C. Lines, Civil Lines, Meerut
since 12.08.2010. The rate of rent is
Rs.6000/- per month. The tenancy is one
from month to month. The provisions of
the U.P. Act No. 13 of 1972 are not
applicable.
The
tenancy
has
been
determined through a notice to quit dated
23.08.2014, served upon the tenant on
26.08.2014. Upon receipt of notice, the
tenant paid arrears of rent and electricity
charges until August, 2014.

4. A suit for eviction has been
instituted, where arrears of rent w.e.f.
01.09.2014 and damages for use and
occupation at the rate of Rs. 250/- per day
w.e.f. 25.09.2014 have been sought.

5. The tenant has contested the suit on
various pleas raised in the written statement
and amongst others has asserted the facts
that for the months of September and
October, 2014, he had remitted rent vide
Cheque No. 184886 dated 01.10.2014 and
Cheque No. 184894 dated 05.11.2014,
which the landlords did not present to their
Bank for collection. Again, rent for the
month of November and December, 2014
was remitted by registered post, which was
not accepted. Thereafter, the rent was
remitted, according to the tenant, by money
order dated 02.12.2014 together with
electricity
charge,
but
the
landlords
maliciously
in
connivance
with
the
Postman, did not receive it. This part of the
pleadings of the tenant this Court has
referred to, because otherwise from a
reading of the written statement, it is
difficult to comprehend the tenant's stand.

6. From what this Court understands
is that the suit for eviction has proceeded,
wherein the landlords have moved two
successive applications bearing Paper No.
58-C and 71-C, asking the Court to strike
off
the
tenant's
defence.
In
these
applications, the case made out is that rent
has not beeen paid for 41 months
preceding, amounting to Rs.2,46,000/-.
These applications were rejected so far as
the prayer for striking off the defence is
concerned, but the Court gave opportunity
to deposit the entire rent etc. within 10
days. It has figured in the orders passed by
the Courts below, to which reference shall
shortly be made that the tenant filed
objections to these applications bearing
Paper No. 60-C, 62-C and 180-C urging a
plea that he had spent a sum of Rs.
1,66,310/-
on
repairs,
painting
and
maintenance of the tenanted premises under
an oral permission by the landlords.

7. The Trial Court while disposing of
the application dated 15.02.2021 noticed
the landlords' stand about the plea for a set
off against arrears of rent, of money
claimed by the tenant to have been spent on
repairs under an oral permission of the
landlords. It is recorded that the landlords
have denied granting any such consent. The
Court has, therefore, remarked in the order
dated 15.02.2021 that the issue can be
determined at the trial or the tenant may
bring a separate suit for recovery of the
expenditure claimed to be made, if so
advised. Still, as already noted, the Trial
Court did not strike off the tenant's defence
vide order dated 15.02.2021. The tenant did
not
comply
with
the
order
dated
15.02.2021.
Instead,
he
moved
an
application bearing Paper No. 182-C
pointing out discrepancies in the order
passed by the Trial Court.

8. Amongst these, it was pointed out
that the Trial Court, by its order dated
15.02.2021, on the one hand had remarked
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
that no finding about the expenditure
incurred by the tenant on repairs etc. could
be recorded at the stage of disposal of
applications, Paper Nos. 58-C and 78-C by
the landlord for striking off the tenant's
defence, which has to await trial, but on the
other the prayer for setting off the said
expenditure incurred by the tenant was
rejected. This was criticized as an inherent
contradiction vitiating the order dated
15.02.2021 passed by the Trial Court. The
order dated 15.02.2021 was also criticized
for the reason that under Order XV Rule 5
CPC, according to the tenant, the Trial
Court could either reject the application,
which he did, but could not issue a
direction to the tenant to deposit the dues
within 10 days, going by the provisions of
the Statute.

9. There was a prayer made in the
application, Paper No. 182-C that the part
of
the
Trial
Court's
order
dated
15.02.2021, by which a direction had been
made requiring the tenant to deposit the
rent within 10 days, may be reviewed in
terms of the lease deed and a proper order
passed. The said application was objected
to by the landlords putting in their reply to
the effect that the application was moved
to delay proceedings. A sum of Rs.
2,58,000/- had fallen due as arrears of
rent, which the tenant had to make good.
The rent that had accrued was for a period
of 43 months at the rate of Rs. 6000/- per
month.
The
application
was
not
maintainable. The Trial Court vide order
dated 16.03.2021 rejected the tenant's
application, Paper No. 182-C and held that
since the order dated 15.02.2021, earlier
passed by the Court, had not been
complied with by depositing all the dues
of rent etc. within the time allowed, the
tenant's defence stood struck off in terms
of the order dated 15.02.2021.

10. The tenant preferred an S.C.C.
Revision from the said order to the District
Judge of Meerut, that was registered on the
file of the learned Judge as S.C.C. Revision
No. 12 of 2021. The revision has been
heard and decided by means of the order
dated 16.08.2021, substantially upholding
the order made by the Trial Court, but as a
matter
of
equity,
justice
and
good
conscience, much like the Trial Court,
granting 14 days' further time to the tenant
to comply with the order dated 15.02.2021,
that is to say, w.e.f. the date of the
Revisional Court's order. To the above
extent alone, the revision was allowed,
substantially upholding the Trial Court's
order dated 16.03.2021.

11. After the Revisional Court's
judgment dated 16.08.2021, the tenant did
not take advantage of the relief granted by
depositing the entire outstandings within 14
days of the said judgment. Instead, he made
two applications bearing Paper No. 205ग
and 208ग, to which replies bearing Paper
Nos. 206ग and 209ग were filed by the
landlords. On occasion the relief sought by
the applications bearing Paper Nos. 205ग
and 208ग, is substantially to the same effect
as the one earlier sought and refused. It was
urged in both these applications that on
account
of
the
unexpected
loss
of
livelihood arising out of the Covid-19
pandemic, he was not in a position to make
good the deposit of rent etc. as ordered by
the Court within the time allowed. The
tenant prayed that he may be permitted to
make good the deposit of the entire
outstanding rent in monthly installments of
Rs.25,000/-. The said applications were
held to be not maintainable, inasmuch as
the Trial Court remarked that it was bound
by the orders of the Revisional Court,
which had not granted any such relief to the
tenant. It was also held that the Court did
10 All. Virendra Kumar Kaushik (Goyala) Vs. Brigadier Subhash Chnada Jauhar (retired) & Anr. 1113
not have any jurisdiction to permit the
tenant
to
deposit
the
rent
due
in
installments. The applications 205ग and
208ग were accordingly rejected by the Trial
Court vide order dated 31.08.2021.

12. Aggrieved by the said order, an
S.C.C. Revsion was instituted by the tenant
before the District Judge of Meerut. This
revision came to be numbered as S.C.C.
Revision No. 19 of 2021 on the file of the
learned District Judge, Meerut. It was heard
and dismissed by the Revisional Court vide
judgment and order dated 17.01.2022.
While dismissing the S.C.C. Revision No.
19 of 2021, the District Judge has
expedited the trial of the suit, taking note of
a Circular dated 29.10.2003 issued by this
Court on the administrative side. This has
been done bearing in mind that the
landlords are senior citizens. The Trial
Court has been directed to decide the suit
within
three
months
after
normal
functioning of the Court is restored.

13. The tenant has instituted this
Petition under Article 227 of the Constitution
challenging the order dated 31.08.2021
passed by the Judge, Small Cause Court,
rejecting the tenant's applications, Paper Nos.
205ग and 208ग and the order dated
17.01.2022, affirming it in Revision No. 19
of 2022, passed by the learned District Judge,
Meerut. The tenant has also prayed that the
order dated 15.02.2021 passed by the Judge,
Small Cause Court and the order dated
16.08.2021 passed by the learned District
Judge in S.C.C. Revision No. 12 of 2021 be
set aside. The tenant has further sought a
direction to the Judge, Small Cause Court to
accept the rent due in monthly installments of
Rs.25,000/-.

14. Upon hearing the learned Counsel
for the tenant and perusing the record, this
Court is of clear opinion that this petition is
singularly devoid of merit. The provisions
of Order XV Rule 5 CPC, as amended in
their application to the State of Uttar
Pradesh, read:

"5. Striking off defence on failure
to deposit admitted rent, etc.--(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
centum 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 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 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, paid to the lessor
acknowledged by the lessor in writing
signed by him] and the amount, if any,
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
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 an 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."

15. A reading of the provisions of
Rule 5 does not spare a shadow of doubt
that deposit at the first hearing of the suit is
to be made of all arrears of rent, admitted
by the tenant to be due, together with
interest at the rate of 9% per annum. This is
one part of the tenant's obligation. The
other is that, throughout the continuation of
the suit, the tenant has to regularly deposit
the monthly rent within a week from the
date of its accrual. In the event of default,
either in the deposit of the admitted rent
due on the first date of hearing, or the
regular deposit of monthly rent within a
week of its falling due, the Court is
empowered to strike off the tenant's
defence. Explanation 2 to sub-Rule (1) of
Rule 5 of Order XV defines the expression
"entire amount admitted to be due" as the
gross sum of money, due on account of rent
or damages for use and occupation,
calculated at the admitted rate of rent, for
the admitted period that it is in arrears after
deduction of nothing else but taxes, if any,
paid to the Local Authority, relating to the
tenanted premises on the lessor's account
and the amount, if any, deposited under
Section 30 of U.P. Act No. 13 of 1972.

16. By virtue of Explanation 3, the
monthly amount due has been defined as
the amount due every month, whether on
account of rent or damages for use and
occupation, at the admitted rate of rent,
without deducting anything except taxes
paid to a Local Authority on the lessor's
account, in respect of the tenanted
premises. By the provisions of sub-Rule (2)
of Rule 5 of Order XV, it has been made
explicit that while making an order striking
off defence, the Court may consider any
representation made by the tenant in that
behalf, provided the representation is
preferred within 10 days of the first hearing
or of the expiry of the week, referred to in
sub-Rule (1) of Rule 5.

17. Thus, there is a clear period of 10
days only during which, in respect of the
first part of the obligation under sub-Rule
(1) or under the second part, the Court may
consider a representation regarding the
delay in deposit. Beyond that period of
time, that is to say, 10 days, in one case
from the date of first hearing and in the
other from the expiry of a week, when the
10 All. Virendra Kumar Kaushik (Goyala) Vs. Brigadier Subhash Chnada Jauhar (retired) & Anr. 1115
rent falls due, the Court cannot consider the
tenant's representation against the order
striking off the defence. The first part of
sub-Rule (1) of Rule 5 clearly relates to the
accrued arrears of rent/ damages for use
and occupation at the time of institution of
the suit, which have to be made good, on or
before the first hearing of the suit.

18. In this case, the condonable 10
days are to be reckoned with effect from
the date of first hearing. For the second part
of sub-Rule (1) aforesaid, it is after the
lapse of a week during the course of every
month, when the rent falls due and is not
paid within the week, that the Court may
consider a representation against striking
off defence, if made within 10 days of the
expiry of one week as aforesaid. This is a
schedule of time, beyond which the Court
has
no
discretion
to
consider
any
representation or extend time to deposit the
rent due; both as regards the first part of the
Rule as well as the second part.

19. Here, a reading of the impugned
order dated 15.02.2021 passed by the Trial
Judge shows that it is a case, where the
tenant deposited monthly rent, lastly for the
period
01.07.2017
to
31.07.2017
on
10.10.2017. Thereafter, for the period
01.08.2017 to 31.12.2020, for a period of
41 months, the tenant did not deposit the
monthly rent due, within a week of its
accrual, in accordance with his liability
under the second part of Order XV Rule
5(1) CPC. Instead, he made applications for
adjustment of rent due against expenses
towards painting and repairs etc., which is
not at all relevant under Order XV Rule 5
CPC. It was for a very valid reason and on
good grounds that the Trial Court declined
to accept the tenant's application to set off
expenditure incurred towards panting and
maintenance of the demised premises, as
claimed by the tenant. Still, however, the
Trial Court refused to strike off the tenant's
defence and granted him one opportunity to
deposit all the outstandings of rent within
10 days. It was, however, ordered that in
case all outstandings of rent were not made
good within the period of 10 days, the
tenant's defence would automatically stand
struck off.

20. In the opinion of this Court, the
order dated 15.02.2021 is an instance of
some error committed that goes to the
tenant's benefit. And, that is that on the
findings recorded, the Trial Court did not
immediately strike off the tenant's defence.
Rather, 10 days' time was granted to
deposit the rent due with a default clause
that upon failure to do so, the defence
would stand automatically struck off.
Obviously, if the Trial Court has erred in
granting time to the tenant to make good
the deposit of all rent due, failing which the
defence would stand automatically struck
off on the expiry of 10 days, it is an
infirmity which the tenant cannot capitalize
upon. Strangely enough, the tenant has
criticized the aforesaid error in the order
that is to his advantage, while assailing the
order dated 15.02.2021 and the later order
dated 16.03.2021, in Revision No. 12 of
2021 before the learned District Judge.
Since the due rent was not deposited within
10 days and the tenant made a further
application, Paper No. 182ग, asking the
Judge, Small Cause Court, to review his
order dated 15.02.2021, bearing in mind the
terms of lease deed dated 28.09.2010
between parties and pass orders afresh, the
Trial Judge rejected the said application,
holding that the defence stood struck off for
non-compliance
of
the
order
dated
15.02.2021. Both
these
orders
when
assailed in revision, were upheld on merits
by the learned District Judge, Meerut vide
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order dated 16.08.2021. But,
again with an indulgence in favour of the
tenant. This time, the tenant was granted 14
days' time to comply with the order dated
15.02.2021, failing which the consequences
of the defence being struck off, would
revive.

21. This Court must say again that
this direction too was not warranted under
the law. It was an equity, overstepping the
law. That done, the tenant did not, as
already said, take advantage of the order
and has persisted in his dilatory efforts. He
moved applications, Paper Nos. 205ग and
208ग for deposit of due rent in installments.
Those applications were rightly rejected by
the Judge, Small Cause Court and affirmed
in revision, also rightly by the learned
District Judge, vide judgment and order
dated 17.01.2022.

22. Whatever the learned Counsel for
the tenant has said in assail of these orders,
is only stated to be rejected. The clear
mandate of Order XV Rule 5 CPC, in the
way it has been interpreted by this Court
and the Supreme Court, do not spare any
doubt about the limited right of a tenant to
escape the rigours of the rule prescribing
for his defence to be struck off. The rule
cannot be applied in the manner, the tenant
wants. There are some decisions, such as
those in Dr. Ram Prakash Mishra (Dead)
v. IVth Additional District Judge, Etah
and
another,
1999
(1)
ARC
7,
Habiburahaman
v.
District
Judge,
Jhansi and others, 2000 (1) ARC 4,
Sanjay Agrawal vs. Ganga Prasad
Agrawal and another, 2009 (1) ARC 291,
which hold that the Court has the reserve
power to reject the application seeking to
strike off the defence, but that has to be
done in a case where indeed there is
material to show that the revisionist has
substantially complied with his obligations
and for some reason, there has been a
technical
default.
These
issues
were
considered by this Court in Pushpa Gupta
vs. Subhash Chandra and another, 2019
(8) ADJ 376, where it was 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.

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
10 All. Virendra Kumar Kaushik (Goyala) Vs. Brigadier Subhash Chnada Jauhar (retired) & Anr. 1117
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.

55. The judgments in the case of
Dr. Ram Prakash Mishra (since deceased)
v. IVth Additional District Judge, Etah and
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, 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.

23. In this connection, the remarks of
the Division Bench in Haider Abbas v.
Additional District Judge and others,
2006 (1) ADJ 197 (All) (DB), that bear
upon the point, read:

23. 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.

24. 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.

24. In this case, one could have thought
that owing to the extraordinarily adverse
circumstances
that
humanity
faced
in
consequence of the Covid-19 pandemic, as a
one time measure, the Court shal have
exercised its reserve power to decline striking
off defence and afforded opportunity to the
tenant to comply with the provisions of Order
XV Rule 5 CPC, saving his defence, but that
situation would legitimately arise where the
tenant simply prayed for some time to
comply with the requirements of deposit
under Order XV Rule 5 CPC. Here, the stand
of the tenant has been very iniquitous. He has
come up with different kinds of prayers,
through various applications, to ward off of
his liability under Order XV Rule 5 CPC. In
the first instance, he asked for adjustment of
the rent due against the expenditure incurred
on the maintenance and painting of the
demised premises, which could not be done.
Later on, he moved another application,
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
seeking a review of the order dated
15.02.2021, which in fact granted him
indulgence of not striking off his defence by
extending some time to deposit the rent due.
Still later, after losing before the Revisional
Court, he did not avail of the opportunity to
make good the deposit of rent under Order
XV Rule 5 CPC and came up with a fresh
prayer to deposit the rent due in installments
of Rs.25,000/-, that could never be done
under Order XV Rule 5 CPC. We think that
on two occasions, in the first round of
agitation of his rights by the tenant, the Trial
Court as well as the Revisional Court passed
some
non-conservative
orders,
granting
indulgence of an extended time before
defence of the tenant would stand struck off.
It might have been a decision taken in the
background of the Covid-19 pandemic,
though not said so by the Courts in the orders
impugned.

25. The Revisional Court in the earlier
instance extended time for the tenant to
comply with the order dated 15.02.2021
passed by the Trial Court, the benefit whereof
he had lost, which the tenant again did not
avail. Instead, he took up cudgels again
against the landlords by moving the Trial
Court for a different relief in the matter of
deposit of rent, which we have already
mentioned above. The aforesaid conduct of
the tenant does not entitle him to any further
indulgence. The provisions of Order XV Rule
5 CPC cannot come to the tenant's aid any
further, the time for compliance thereunder
having long expired. Moreover, the stand of
the tenant, that has been consistently
vacillating and smacking of in equity, does
not entitle him to relief in the exercise of our
jurisdiction under Article 227 of the
Constitution.

26. This petition is, accordingly,
rejected.

27. The interim stay order dated
20.05.2022 is hereby vacated.

Order on Civil Misc. Application
No. 2 of 2022

28. The application is disposed of.

29. For orders, see my order of date
passed on Matter under Article 227 No.
1562 of 2022.

Order
on
Civil
Misc.
Recall
Application No. 3 of 2022

30. The application is disposed of.

31. For orders, see my order of date
passed on Matter under Article 227 No.
1562 of 2022.
----------
(2022) 10 ILRA 1118
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 146 of 2021

State of U.P. ...Appellant
Versus
Sukhai @ Bhagwan Das ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:

A. Criminal Law - Murder - Causing
disappearance of evidence - Indian Penal
Code, 1860 - Sections 302 & 201 - Code of
Criminal Procedure, 1973 - Section 378 -
It is well settled that the prosecution has