# ASHA RANI GUPTA v. SRI VINEET KUMAR

- **Citation:** [2022] 15 S.C.R. 402
- **Court:** Supreme Court of India
- **Decided:** 2022-07-11
- **Case number:** Civil Appeal No. 4682 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asha-rani-gupta-v-sri-vineet-kumar-35587
- **Pages:** 28

## Headnote

Code of Civil Procedure, 1908: Ord. XV r.5(as applicable in
the State of U.P.) - Striking off defence for failure to deposit the
admitted rent - Eviction suit by appellant-lessor against the
respondent-lessee on grounds of arrear of rents and damagesFailure of respondent to pay or deposit the due rent - Application
u/Ord. XV r.5 for striking off the defence - Allowed by the trial
court holding that there was no evidence of payment of rent to the
appellant and even if the tenant-landlord relationship is denied,
then also application u/Ord. XV r.5 was maintainable - Approved
by the revisional court, however, set aside by the High Court holding
that respondent was entitled to 'some indulgence' - On appeal,
held:As per the provision, the defendant is under an obligation to
deposit the entire amount admitted by him to be due along with the
interest on or before the first hearing and to regularly deposit the
monthly amount due within a week of its accrual throughout the
pendency of the suit - Consequence of default in making either of
these deposit is that the court may strike of his defence - However,
court should consider the representation of the defendant if made
within 10 days of the first hearing -Such provision has to be been
construed liberally; and the expression 'may' in regard to the power
of the Court to strike out defence has been construed as directory
and not mandatory - Power to strike off defence is considered to
be discretionary, which is to be exercised with circumspection but,
relaxation is reserved for a bonafide tenant - On facts, the
respondent has not denied his status as being the lessee and it has
clearly been the case of volitional non-performance with nothing
left to guess about the defendant's mood of defiance - No facts or
any circumstance is existing on record to find even a remote reason
for extending any latitude or relaxation in operation of Ord. XV r. 5
- Conclusion of the High Court could only be said to be an
assumptive one, being not supported by any reason - Furthermore,
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the deposits made belatedly, pursuant to the unsustainable order of
the High Court, would not enure benefit to the respondent - Thus,
the order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 A few basic factors related with the provisions
of Order XV Rule 5 CPC are that in a suit by a lessor for eviction
of a lessee after the determination of lease and for recovery of
rent or compensation for use and occupation, the defendant is
under the obligation: to deposit the entire amount admitted by
him to be due together with interest at the rate of 9% per annum
on or before the first hearing of the suit; and to regularly deposit
the monthly amount due within a week of its accrual throughout
the pendency of the suit. The consequence of default in making
either of these deposits is that the Court may strike off his
defence. The expression 'first hearing' means the date for filing
written statement or the date for hearing mentioned in the
summons; and in case of multiple dates, the last of them. The
expression 'monthly amount due' means the amount due every
month, whether asrent or damages for use and occupation at the
admitted rate of rent after making no other deduction except
taxes, if paid to the local authority on lessor's account. It is,
however, expected that before making an order striking off
defence, the Court would consider the representation of the
defendant, if made within 10 days of the first hearing or within 10
days of the expiry of one week from the date of accrual of monthly
amount. [Para 9.1][418-D-G]
1.2 The present suit has been filed by the plaintiff-appellant
claiming her capacity as the lessor after having purchased the
suit property from its erstwhile owner. According to the plaintiff,
the defendant has been the lessee in the suit shop and his lease
was determined; and while alleging the rent to be due and having
not been paid despite demand, the plaintiff has filed

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SUPREME COURT REPORTS
[2022] 15 S.C.R.
[2022] 15 S.C.R. 402
402
ASHA RANI GUPTA
v.
SRI VINEET KUMAR
(Civil Appeal No. 4682 of 2022)
JULY 11, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908: Ord. XV r.5(as applicable in
the State of U.P.) - Striking off defence for failure to deposit the
admitted rent - Eviction suit by appellant-lessor against the
respondent-lessee on grounds of arrear of rents and damagesFailure of respondent to pay or deposit the due rent - Application
u/Ord. XV r.5 for striking off the defence - Allowed by the trial
court holding that there was no evidence of payment of rent to the
appellant and even if the tenant-landlord relationship is denied,
then also application u/Ord. XV r.5 was maintainable - Approved
by the revisional court, however, set aside by the High Court holding
that respondent was entitled to 'some indulgence' - On appeal,
held:As per the provision, the defendant is under an obligation to
deposit the entire amount admitted by him to be due along with the
interest on or before the first hearing and to regularly deposit the
monthly amount due within a week of its accrual throughout the
pendency of the suit - Consequence of default in making either of
these deposit is that the court may strike of his defence - However,
court should consider the representation of the defendant if made
within 10 days of the first hearing -Such provision has to be been
construed liberally; and the expression 'may' in regard to the power
of the Court to strike out defence has been construed as directory
and not mandatory - Power to strike off defence is considered to
be discretionary, which is to be exercised with circumspection but,
relaxation is reserved for a bonafide tenant - On facts, the
respondent has not denied his status as being the lessee and it has
clearly been the case of volitional non-performance with nothing
left to guess about the defendant's mood of defiance - No facts or
any circumstance is existing on record to find even a remote reason
for extending any latitude or relaxation in operation of Ord. XV r. 5
- Conclusion of the High Court could only be said to be an
assumptive one, being not supported by any reason - Furthermore,
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the deposits made belatedly, pursuant to the unsustainable order of
the High Court, would not enure benefit to the respondent - Thus,
the order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 A few basic factors related with the provisions
of Order XV Rule 5 CPC are that in a suit by a lessor for eviction
of a lessee after the determination of lease and for recovery of
rent or compensation for use and occupation, the defendant is
under the obligation: to deposit the entire amount admitted by
him to be due together with interest at the rate of 9% per annum
on or before the first hearing of the suit; and to regularly deposit
the monthly amount due within a week of its accrual throughout
the pendency of the suit. The consequence of default in making
either of these deposits is that the Court may strike off his
defence. The expression 'first hearing' means the date for filing
written statement or the date for hearing mentioned in the
summons; and in case of multiple dates, the last of them. The
expression 'monthly amount due' means the amount due every
month, whether asrent or damages for use and occupation at the
admitted rate of rent after making no other deduction except
taxes, if paid to the local authority on lessor's account. It is,
however, expected that before making an order striking off
defence, the Court would consider the representation of the
defendant, if made within 10 days of the first hearing or within 10
days of the expiry of one week from the date of accrual of monthly
amount. [Para 9.1][418-D-G]
1.2 The present suit has been filed by the plaintiff-appellant
claiming her capacity as the lessor after having purchased the
suit property from its erstwhile owner. According to the plaintiff,
the defendant has been the lessee in the suit shop and his lease
was determined; and while alleging the rent to be due and having
not been paid despite demand, the plaintiff has filed this suit for
eviction and recovery of arrears of rent and damages for use and
occupation. Having regard to the plaint averments, the suit in
question is clearly the one to which the provisions of Order XV
Rule 5 CPC are applicable. [Para 11][423-D-E]
ASHA RANI GUPTA v. SRI VINEET KUMAR
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1.3 Any such provision depriving the tenant of defence
because of default in payment of the due amount of rent/arrears
have been construed liberally; and the expression 'may' in regard
to the power of the Court to strike out defence has been
construed as directory and not mandatory. In other words, the
Courts have leaned in favour of not assigning a mandatory
character to such provisions of drastic consequence and have
held that a discretion is indeed reserved with the Court concerned
whether to penalise the tenant or not. However, and even while
reserving such discretion, this Court has recognised the use of
such discretion against the defendant-tenant in case of wilful
failure or deliberate default or volitional non-performance. If the
mood of defiance or gross neglect is discerned, the tenant may
forfeit his right to be heard in defence. The sum and substance of
the matter is that the power to strike off defence is considered to
be discretionary, which is to be exercised with circumspection
but, relaxation is reserved for a bonafide tenant and not as a matter
of course. The power to strike off the defence is held to be a
matter of discretion where, despite default, defence may not be
struck off, for some good and adequate reason. [Para 11.1][423F-H; 424-A-B, D]
1.4 The question of good and adequate reason for not
striking off the defence despite default would directly relate with
such facts, factors and circumstances where full and punctual
compliance had not been made for any bonafide cause, as
contradistinguished from an approach of defiance or volitional/
elective non-performance. [Para 11.2][424-E-F]
1.5 Reverting to the provisions under consideration, it is
noticed that while the first part of sub-rule (1) of Rule 5 of Order
XV CPC requires deposit of the admitted due amount of rent
together with interest, the second part thereof mandates that
whether or not the tenant admits the amount to be due, he has
to, throughout the continuation of the suit, regularly deposit
monthly amount due within a week from the date of its accrual.
Read as a whole, it is but clear that Order XV Rule 5 CPC
embodies the fundamental principle that there is no holidaying
for a tenant in payment of rent or damages for use and occupation,
whether the lease is subsisting or it has been determined. The
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only basic requirement in the suit of the nature envisaged by
Order XV Rule 5 CPC is the character of defendant as being the
lessee/tenant in the suit premises. Viewed from this angle, it
cannot be said that in every case of denial of relationship of
landlord and tenant, the defendant in suit for eviction and recovery
of rent/damages could enjoy holidays as regards payment of rent.
[Para 12][424-F-H; 425-A-B]
1.6 In a suit of the present nature, where the defendant
otherwise has not denied his status as being the lessee, it was
rather imperative for him to have scrupulously complied with the
requirements of law and to have deposited the arrears of rent
due together with interest on or before the first date of hearing
and in any case, as per the second part of sub-rule (1) of Rule 5 of
Order XV CPC, he was under the specific obligation to make
regular deposit of the monthly amount due, whether he was
admitting any such dues or not. [Para 13][425-D]
1.7 In the context of the proposition of denial of title of the
plaintiff and denial of relationship of landlord and tenant between
the plaintiff and defendant, such a denial simpliciter does not and
cannot absolve the lessee/tenant to deposit the due amount of
rent/damages for use and occupation, unless he could show having
made such payment in a lawful and bonafide manner. Of course,
the question of bonafide is a question of fact, to be determined in
every case with reference to its facts but, it cannot be laid down
as a general proposition that by merely denying the title of plaintiff
or relationship of landlord- tenant/lessor-lessee, a defendant of
the suit of the present nature could enjoy the property during
the pendency of the suit without depositing the amount of rent/
damages. [Para 14][425-F-H]
1.8 On facts, it is at once clear that the defendantrespondent, by his assertions and conduct, has left nothing to
doubt that he has been steadfast in not making payment of rent/
damages, despite being lessee of the suit shop. The present one
has clearly been the case of volitional non-performance with
nothing left to guess about the defendant's mood of defiance.
Nothing of any fact or any circumstance is existing on record to
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find even a remote reason for extending any latitude or relaxation
in operation of Order XV Rule 5 CPC to the present case. It
shall be apposite at this juncture to also observe that the
contentions on behalf of the defendant-respondent to the effect
that he had made payment of rent to the alleged erstwhile landlord
and contra submissions on behalf of the appellant that even in
the year 1990, the defendant-respondent admitted the RK as the
owner of the property as also the factors co-related with these
submissions, do not call for adjudication in this appeal. This is for
two simple reasons: One, that so far as the fact of volitional nonperformance by the defendant-respondent is concerned, with no
cogent evidence of lawful payment of rent, the findings of fact by
the Trial Court and the Revisional Court against the defendantrespondent stand final and have not been disturbed even by the
High Court. There appears no reason for this Court to enter into
any factual inquiry as regards payment of rent to the erstwhile
owner or otherwise, now in this appeal. Secondly, so far as any
affidavit filed by the defendant-respondent in the year 1990,
allegedly admitting RK as owner of property is concerned, it may
be a matter of adjudication by the trial court but would not be a
matter of consideration in this appeal. [Para 15][426-A-E]
1.9 In the totality of facts and circumstances, there was
absolutely no reason for the High Court to have interfered in the
present case, where the trial court had struck off the defence
after finding that there was no evidence on record to show the
payment or deposit of rent in favour of the plaintiff by the
defendant- respondent. The Revisional Court had also approved
the order of the trial court on relevant considerations. Even the
High Court did not find the pleas taken by the defendantrespondent to be of bonafide character, particularly when survey
number of the shop let out to him was clearly stated in the sale
deed executed in favour of the plaintiff. It is rather find intriguing
that, despite having not found any cogent reason for which
discretion under Rule 5 of Order XV CPC could have been
exercised in favour of the defendant-respondent, the High Court,
in the last line of paragraph of the order impugned, abruptly stated
its conclusion that: 'yet the defendant/tenant deserves some
indulgence'.With respect, the said conclusion of the High Court
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could only be said to be an assumptive one, being not supported
by any reason. In previous paragraph, of course, the High Court
observed with reference to the decisions of this Court that the
discretionary power must be exercised with great circumspection
but, such enunciation by this Court cannot be read to mean that
whatever may be the fault and want of bonafide in the defendant/
tenant, he would be readily given the so-called 'indulgence' of
not striking off defence. Such an approach is neither envisaged
by the statutory provisions nor by the referred decisions. In fact,
such an approach would simply render the relevant provisions of
law rather nugatory. The expected circumspection would require
the Court to be cautious of all the relevant facts and the material
on record and not to strike off the defence as a matter of routine.
However, when a case of the present nature is before the Court,
disclosing deliberate defiance and volitional/elective nonperformance, the consequence of law remains inevitable, that the
defence of such a defendant would be struck off.The impugned
order as passed by the High Court cannot be approved and is
required to be set aside. [Para 16-18][426-G-H; 427-A-F]
1.10 The submissions made on behalf of the defendantrespondent that he had deposited the due rent from 10.05.2010
to 10.11.2018 and he has been further making regular deposits
do not take his case any further. The defendant-respondent has
made such deposits only pursuant to the order of the High Court.
The said order, being not in conformity with the law applicable
and with the record of this case, is required to be set aside. In
any event, any deposit made under or pursuant to the said order
cannot wipe out the default already committed by the defendantrespondent. On the contrary, with setting aside of the said order
of the High Court, the order of the trial court shall stand revived.
Simply put, the deposits belatedly made, pursuant only to the
unsustainable order of the High Court, do not enure to the benefit
of the defendant-respondent. [Para 19][427-G-H; 428-A]
1.11 Having taken note of the subsequent events after
passing of the impugned order by the High Court, suffice it to
say that with the impugned order of the High Court being set
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aside and that of the trial court dated 01.03.2017 being restored
by this judgment, it would be expected of the trial court to take
note of the fact that the suit filed way back in the year 2011 has
remained pending yet and is required to be assigned a reasonable
priority for expeditious disposal. The order passed by the High
Court on 29.09.2020 is also to be kept in view by the trial
court.The impugned order dated 02.11.2018 is set aside with the
result that the order dated 01.03.2017 passed by the trial court
stands restored. [Para 21-22][428-F-H; 429-A]
Bimal Chand Jain v. Sri Gopal Agarwal 1981 (3) SCC
486 : [1982] (1) SCR 124; Manik Lal Majumdar and
Ors. v. Gouranga Chandra Dey and Ors. AIR 2005
SC 1090 : [2005] (1) SCR 437; Ladly Prasad v. Ram
Shah Billa and Ors. (1976) 2 ALR 8; Kunwar Baldevji
v. The XI Additional District Judge, Bulandshahar and
Ors. (2003) 1 ARC 637; Miss Santosh Mehta v. Om
Prakash and Ors. (1980) 3 SCC 610 : [1980] 3 SCR
325; Smt. Kamla Devi v. Vasdev (1995) 1 SCC 356 :
[1994] 6 Suppl. SCR 603; Hisamul Islam Siddiqui and
Anr. v. Mohd. Javed Barki 2016 (131) RD 135 -
referred to.
Case Law Reference
[1982] (1) SCR 124
referred to
Para 7.1
[2005] (1) SCR 437
referred to
Para 7.1
[1980] 3 SCR 325
referred to
Para 10.1
[1994] 6 Suppl. SCR 603
referred to
Para 10.1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4682
of 2022.
From the Judgment and Order dated 02.11.2018 of the High Court
of Judicature at Allahabad in Matters Under Article 227 No.2419 of
2018.
Dinesh K. Garg, Dhananjay Garg, Abhishek Garg, N. Suresha,
Advs. for the Appellant.
Praveen Jain, Adv. for the Respondent.
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The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
 Leave granted.
2. The present appeal arises out of a suit for eviction and recovery
of arrears of rent as also damages for use and occupation, as filed by
the plaintiff-appellant against the defendant-respondent1, wherein the
order dated 01.03.2017, as passed by the Trial Court striking off the
defence of the defendant-respondent for failure to pay or deposit the
due rent, which was approved by the Revisional Court in its order dated
18.01.2018, has been set aside by the High Court in its impugned order
dated 02.11.2018.
3. The root question calling for determination in this appeal is as
to whether the High Court was right in reversing the order striking off
defence in terms of Order XV Rule 5 of the Code of Civil Procedure,
19082, as applicable to the present case3?
4. The relevant factual and background aspects, so far relevant
for the present purpose, are as follows:
4.1. The plaintiff-appellant has filed the suit leading to this appeal,
being S.C.C. Suit No. 27 of 2011, in the Court of Judge, Small Causes,
Aligarh against the defendant-respondent on 30.04.2011 with the
averments, inter alia, that she is the owner of a shop bearing Municipal
Corporation No. 1/225, situated at Naurangabad Sahar, Kol, Aligarh, for
having purchased the same from the erstwhile owner Shri Rajiv Kant
Sharma through a registered sale deed dated 10.05.2010. The appellant
has further averred that the defendant-respondent is a tenant in the suit
shop since the time of its erstwhile owner on a monthly rent of Rs. 625/
- apart from statutory taxes; that after her purchasing the shop, the
defendant became her tenant; and that after registration of the sale deed,
the erstwhile landlord had informed the defendant about sale of the shop
to the plaintiff.
1 Hereinafter, the parties have also been referred to as 'the plaintiff' or as 'the defendant',
as per their status in the suit.
2 'CPC', for short.
3 Rule 5 of Order XV was inserted to CPC for its application in the State of Uttar
Pradesh by the Uttar Pradesh Laws (Amendment) Act, 1972; it was substituted by the
Uttar Pradesh Civil Laws (Reforms and Amendment) Act, 1976 w.e.f. 01.01.1977 and
was slightly amended by Notification No. 121/IV-h-36-D dated 10.02.1981 w.e.f.
03.10.1981.
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4.2. The plaintiff-appellant has alleged that the defendantrespondent was a chronic defaulter in payment of rent and taxes; and
despite information of the sale deed dated 10.05.2010 and despite demand
made by her, the rent along with taxes had not been paid by him since
the month of May 2010. The plaintiff has averred that she got served a
legal notice under Section 106 of the Transfer of Property Act, 1882 to
the defendant on 08.02.2011, who refused to accept the notice and has
neither paid the balance rent and damages nor vacated the suit shop. It
has also been pointed out that the suit shop was a newly constructed one
to which, the provisions of U.P. Act No. 13 of 1972 were not applicable.
While asserting her right to receive the rent and damages in relation to
the suit shop from the month of May 2010 and with other averments
regarding cause of action, jurisdiction and court fee etc., the plaintiff has
claimed the reliefs in the following terms: -
"10. That the plaintiff is entitled for the following relief: -
a) the decree may kindly be passed in favour of the plaintiff and
against the defendant for realizing amount of Rs. 8,050/- and
damages for use and occupation @ Rs.625/- per month presently
and in future besides the taxes.
b) a decree of eviction in favour of plaintiff and against the
defendant for the shop which is in the possession of defendant
and after eviction of the defendant the possession of the shop
may be given to the plaintiff through the Amin of the Court, may
be passed.
c) the expenses of the suit may be recovered from the defendant
and be given to the plaintiff.
d) any other relief which this Hon'ble Court may deem fit and
proper in the circumstances of the case may be given to the
plaintiff."
4.3. In his written statement, the defendant-respondent has, in
essence, denied the relationship of landlord and tenant between the
plaintiff and himself, though he would not deny his status as tenant in the
suit shop. The defendant has also asserted that the alleged sale deed
dated 10.05.2010 is illegal and void. He has assigned the reasons for this
assertion by relying on certain recitals made by said Shri Rajiv Kant
Sharma in another sale deed dated 04.05.2010 executed in favour of
Abhishek Gupta (son of the present plaintiff) and particularly, the
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boundaries on the northern side of the said property. In other words, the
assertion is that in the sale deed dated 04.05.2010, no such shop was
shown on the northern side as attempted to be sold by the sale deed
dated 10.05.2010. The defendant has further asserted that the shop in
question was let out to him by Smt. Sudha Sharma wife of Shri Rajiv
Kant Sharma; and not by Shri Rajiv Kant Sharma, the alleged transferor
of the plaintiff. According to the defendant, Shri Rajiv Kant Sharma was
not the landlord; and his landlady Smt. Sudha Sharma had not transferred
the shop in question to the plaintiff. The defendant has also alleged that
Smt. Sudha Sharma was earlier issuing the rent receipts but afterwards,
stopped giving the receipts though she was regularly receiving rent and
that the rent up to 31.08.2010 had been paid to Smt. Sudha Sharma. The
defendant has also refuted the averments about inapplicability of U.P.
Act No. 13 of 1972 and has alleged that the shop in question being too
old, the said Act is applicable to it. The defendant has yet further asserted
that the notice dated 18.02.2011 never reached him and he had never
refused to receive the notice.
4.4. It is also noticed that at the stage of evidence in this suit, the
defendant moved an application seeking appointment of a Court
Commissioner with the submissions that a site plan, containing the details
of the property, including the measurement of the suit shop and the house
situated on the southern side of the shop was required to be called. The
Trial Court considered and rejected this application by its order dated
03.02.2016, for there being no reason to issue a commission in view of
the respective stand of the parties and the real questions involved in the
matter.
4.5. Thereafter, the plaintiff-appellant filed an application with
reference to the provisions of Order XV Rule 5 CPC as applicable to
the present case and prayed that the defence of the defendant-respondent
be struck off, for the reason that defendant had not deposited any rent
and no evidence was adduced by him to establish any payment of rent.
This application was contested by the defendant-respondent with the
submissions that the provisions of Order XV Rule 5 CPC were applicable
only to a case where the defendant would accept the plaintiff as his
landlord; and in the present case, he had taken the special plea that the
plaintiff was not the landlord or the owner of the suit shop and had
clearly averred that there was no relationship of landlord and tenant
between the plaintiff and defendant. The defendant-respondent also
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[DINESH MAHESHWARI, J.]
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referred to certain rent receipts said to have been issued by the said
Smt. Sudha Sharma.
4.6. After having examined the record and the rival contentions,
the Trial Court, in its order dated 01.03.2017, found that no evidence
was placed on record by the defendant to show his payment of rent to
the plaintiff and observed that even if the tenant would deny the
relationship of landlord and tenant, the application under Order XV Rule
5 CPC was maintainable. The Trial Court, accordingly, proceeded to
strike off the defence while observing, inter alia, as under: -
"No such evidence has been filed on the record by the defendant
so that it could become explicit that on the date of sale deed on
10.05.2010, the alleged rent was deposited in favour of Asha Devi
or payment was made to the plaintiff Asha Devi. According to
the aforesaid documentary evidence available on the record,
principle of law laid down in the citations, if the tenant has denied
the relationship landlord and tenant, then the application shall be
maintainable under the provision of Order XV Rule 5 of Civil
Procedure Code. As per the citation relied upon on behalf of the
plaintiff is more recent in comparison to the citation relied upon
by the defendant. Although the principle of law laid down in both
citations are applicable with respect to the case in this Court, but
due to the citation relied upon by the plaintiff being more recent,
so it has more significance. Therefore, the application 61Ga of
the plaintiff ought to be allowed and the defence of the defendant
ought to be struck off.
ORDER
The application 61Ga is allowed and the defence of the
defendant is struck off. The record be put up on 16.03.2017 for
cross examination of the witness PW-1."
4.7. The order aforesaid was challenged by the defendantrespondent in S.C.C. Revision No. 11 of 2017, which was duly considered
and dismissed by the Fourth Additional District Judge, Aligarh on
18.01.2018, while agreeing with the Trial Court and observing as under:-
"The revisionist has admitted as the tenant of the shop in suit
in the written statement. But it was mentioned that the respondent
/ plaintiff is not the owner of the shop in suit and the respondent
has averred that she is the owner of the shop in suit on the basis
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of the sale deed. This fact is undisputed that the revisionist did not
deposit the rent of the shop in suit in the Court on the first date of
hearing and even he did not deposit the rent corresponding to the
period thereafter. In case the revisionist denies the relationship of
tenant and landlord, then he should have complied with second
part of the Order XV Rule 5 of Civil Procedure Code, but it was
not done so as per the principle of law laid down by the Hon'ble
High Court of Allahabad in the citation 2012 (1) CAR, 93 Allahabad,
Mukesh Singh & Ors. Vs. Ramesh Chand Solanki. Therefore, in
view of facts and circumstances of the present case, no error of
law is found in the impugned order passed by the Ld. Subordinate
Court and even the Ld. Subordinate Court has not superseded its
jurisdiction. Therefore, there appears no sufficient ground to
interfere with the impugned order. Consequently the revision ought
to be set aside."
5. The defendant-respondent, being aggrieved of the orders
aforesaid, approached the High Court under Article 227 of the
Constitution of India and his petition (No. 2419 of 2018) came to be
allowed by the High Court by way of its impugned order dated 02.11.2018.
5.1. The High Court took note of the background aspects and the
long-drawn arguments with case laws cited by either of the parties; and
after a survey of various decisions of the Allahabad High Court as also
of this Court, took the view that the discretionary power as regards
striking off defence must be exercised with great circumspection.
Thereafter, though the High Court observed that the pleas taken by the
defendant-respondent might apparently be for the purpose of protracting
the litigation as the property was purchased through a registered sale
deed that distinctly carried the number (1/225) of the shop which was let
out to the defendant-respondent but, opined that the defendant-respondent
was entitled to 'some indulgence'. The High Court, thus, set aside the
orders impugned before it; and issued directions to the defendant to
deposit the arrears of rent together with interest within one month; and
further to deposit the current rent as determined by the Trial Court,
month by month, by seventh of every month during the pendency of
litigation.
5.2. In the impugned order dated 02.11.2018, where first 42
paragraphs are devoted to background facts, rival contentions and
discussion concerning cited decisions with several extractions, entire of
ASHA RANI GUPTA v. SRI VINEET KUMAR
[DINESH MAHESHWARI, J.]
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the reasoning and then, conclusion and directions of the High Court are
contained in paragraphs 43 to 47, which could be usefully reproduced as
under: -
"43. This Court finds from a consideration of the judgments cited
by the counsel for either of the parties that the language of Order
XV, Rule 5 CPC is similar to the language used in sub section 7 of
Section 15 of the Delhi Rent Control Act, 1958 and sub section 1
of Section 13 of the Tripura Building Lease and Control Act,
1975. The Delhi Rent Control Act, was considered by the Supreme
Court in Miss. Santosh Mehta Vs. Om Prakash and in Kamla
Devi Vs. Basudev.
44. The Supreme Court observed that the Rent Control Court /
Appellate Authority has been conferred with a discretionary power
which must be exercised with great circumspection.
45. In the case of the petitioner who is the defendant before the
learned Trial Court, a specific plea was taken regarding non
existence of relationship of landlord and tenant. In fact the
ownership of the landlord of the Suit property was also denied, as
also the identity of the Suit property, which was allegedly purchased
by the plaintiffs. Though the pleas taken by the defendant / tenant
may apparently be for the purpose of protracting the litigation as
the property was bought through a registered sale deed and the
shop number mentioned in the said sale deed was 1/225 which
was the same as the shop rented out to the defendant / tenant, yet
the defendant / tenant deserves some indulgence.
46. The orders impugned are set aside. However, a direction is
issued to the petitioner / tenant to deposit arrears of rent @ Rs.
625/- per month along with 9% interest per annum and cost before
the learned Trial Court within a period of one month from today.
The tenant shall also deposit the current rent as determined by
the learned Trial Court, month to month by the seventh of every
month during the pendency of the litigation. All such deposits made
by the tenant shall be kept in a separate interest bearing account
by the learned Trial Court and shall abide by the final decision of
the SCC Suit filed by the plaintiff / respondents.
47. This matter stands thus disposed of."
 (emphasis supplied)
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6. Assailing the order so passed by the High Court, learned counsel
appearing for the plaintiff-appellant has strenuously argued that the High
Court has dealt with the matter in a rather cursory manner and has
erroneously upset the considered orders dated 01.03.2017 and
18.01.2018, as passed respectively by the Trial Court and the Revisional
Court, striking off the defence of the defendant-respondent in terms of
Order XV Rule 5 CPC for non-payment of the due amount of rent/
damages.
6.1. Learned counsel has argued that the High Court has
misinterpreted and misapplied the provisions of Order XV Rule 5 CPC
and has allowed the petition filed by the defendant by merely holding
that he was entitled to some indulgence but, without giving any specific
reason or finding to overturn the considered orders passed by the
subordinate Courts.
6.2. Learned counsel has referred to the provisions contained in
Order XV Rule 5 CPC and has submitted that as per the said provisions,
the defendant-respondent, being the tenant of the suit shop, was required
to pay or deposit the entire rent for use and occupation of the shop in
question but, he neither paid nor deposited the due amount on the first
hearing though he filed the written statement on 04.09.2012; and he did
not pay or deposit the monthly amount due during the continuation of the
suit. According to the learned counsel, even if the defendant-respondent
had taken the plea suggestive of denial of title of the plaintiff and denial
of the relationship of landlord and tenant, he is not absolved of the liability
to make payment of rent; and on his failure to make such payment/
deposit, the consequences contemplated by the Order XV Rule 5 CPC
would indeed follow and he cannot be granted any so-called indulgence.
6.3. Learned counsel has also attempted to refer to the additional
document filed with I.A. No. 24489 of 2022, inter alia, being of affidavit
filed by the defendant-respondent in the year 1990 admitting Shri Rajiv
Kant Sharma as the owner of the suit property, from whom the plaintiffappellant had purchased under the registered sale deed dated 10.05.2010.
7. Per contra, learned counsel for the defendant-respondent has
duly supported the order impugned and has submitted that the view taken
by the High Court calls for no interference.
7.1. It has been submitted with reference to the decisions of this
Court in the case of Bimal Chand Jain v. Sri Gopal Agarwal: 1981
ASHA RANI GUPTA v. SRI VINEET KUMAR
[DINESH MAHESHWARI, J.]
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(3) SCC 486 and Manik Lal Majumdar and Ors. v. Gouranga
Chandra Dey and Ors.: AIR 2005 SC 1090 that when the defendantrespondent has taken specific plea regarding non-existence of relationship
of landlord and tenant, he is not liable to deposit any rent in terms of the
Order XV Rule 5 CPC. It is submitted that the plaintiff's ownership of
the suit property has been denied by the defendant and the identity of
the property allegedly purchased by the plaintiff has also been questioned;
and these contentions/objections of the defendant could only be decided
after the trial. Thus, until the matter is duly tried, the defendant cannot
be compelled to deposit the arrears of rent due in this suit and the High
Court has rightly extended him indulgence of not striking off the defence.
7.2. It has also been submitted that the defendant-respondent had
paid the rent to the erstwhile landlord Smt. Sudha Sharma upto 31.08.2010
and the receipts said to have been given by her have been referred to. It
has further been submitted that the defendant-respondent, obviously,
entertained genuine doubt about the entitlement of the plaintiff because
the erstwhile landlord had never informed about her having sold the
property and for payment of rent to the plaintiff; and in view of obvious
discrepancies in the description of properties allegedly sold by Shri Rajiv
Kant Sharma, there had been genuine confusion about the landlord/owner
of the property. In this scenario, the defendant-respondent cannot be
faulted in raising objection and in not making deposit of rent in the present
suit.
7.3. It has been asserted on behalf of the respondent that the
expression "may" in sub-rule (1) of Rule 5 of the Order XV merely
vests discretionary power in the Court to strike off the defence but, it
does not oblige the Court to do so in every case of default or non-payment
of rent. In regard to the operation of Order XV Rule 5 CPC, learned
counsel for the defendant-respondent has also relied upon the Division
Bench decisions of the High Court in Ladly Prasad v. Ram Shah Billa
and Ors.: (1976) 2 ALR 8 and in Kunwar Baldevji v. The XI
Additional District Judge, Bulandshahar and Ors.: (2003) 1 ARC
637.
7.4. It has also been pointed out that pursuant to the order passed
by the High Court, the defendant-respondent has deposited the entire
rent from 10.05.2010 to 10.11.2018 and is also making further deposits
regularly.
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8. We have given thoughtful consideration to the rival submissions
and have examined the record with reference to the law applicable to
the present case.
9. For dealing with the relevant question involved, it would be
appropriate to take note of the provisions of Order XV Rule 5 CPC, as
applicable to the present case. These provisions read as under: -
"5. Striking off defence on 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 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, deposited in any court under section
30 of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972.
Explanation 3.- 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.
ASHA RANI GUPTA v. SRI VINEET KUMAR
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(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 subsection (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."
9.1. A few basic factors related with the provisions of Order XV
Rule 5 CPC could be noticed at once. As per these provisions, in a suit
by a lessor for eviction of a lessee after the determination of lease and
for recovery of rent or compensation for use and occupation, the defendant
is under the obligation: (1) to deposit the entire amount admitted by him
to be due together with interest at the rate of 9% per annum on or
before the first hearing of the suit; and (2) to regularly deposit the monthly
amount due within a week of its accrual throughout the pendency of the
suit. The consequence of default in making either of these deposits is
that the Court may strike off his defence. The expression 'first hearing'
means the date for filing written statement or the date for hearing
mentioned in the summons; and in case of multiple dates, the last of
them. The expression 'monthly amount due' means the amount due every
month, whether as rent or damages for use and occupation at the admitted
rate of rent after making no other deduction except taxes, if paid to the
local authority on lessor's account. It is, however, expected that before
making an order striking off defence, the Court would consider the
representation of the defendant, if made within 10 days of the first hearing
or within 10 days of the expiry of one week from the date of accrual of
monthly amount.
10. At this juncture, we may also take note of the decisions which
have been referred to and relied upon.
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10.1. The High Court has primarily based its decision on the cases
of Miss Santosh Mehta v.