Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7279 OF 2013
(ARISING OUT OF SLP(C) NO.22265 OF 2007)
BAL GOPAL MAHESHWARI & ORS. … APPELLANTS
VERUS
SANJEEV KUMAR GUPTA …
RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted. This appeal is preferred by
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the appellants against the judgment and order
th
dated 17 September, 2007 passed by the learned
Single Judge, High Court of Judicature at
Allahabad in Civil Miscellaneous Writ Petition
No. 44387 of 2007. By the impugned judgment,
the High Court exercised its revisional
jurisdiction under Article 227 of the
Constitution of India and set aside the orders
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st th
dated 31 May, 2007 and 9 January, 2006 passed
by the District Judge, J.P. Nagar in S.C.C
Revision No.1 of 2006 and Civil Judge, (S.D.),
J.P. Nagar in Suit No. 17 of 1998 respectively.
Thus, defence of the respondent which was struck
off by the Courts below was restored by the High
Court.
2. The appellants filed Suit No. 17 of 1998 on
st
21 September, 1998 before Civil Judge (S.D.) for
eviction of the respondentdefendanttenant from
the suit premises, the shop located at Mohalla
Raju Sarai Kanth Road, Amroha Distt., J.P. Nagar
on the ground of arrears of rent and default.
3. Inspite of receipt of notice, the respondent
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did not choose to file written statement within
the specified period. After long delay, the
rd
respondent filed his written objection on 3
April, 1999 against which the appellant
plaintiffs filed an application for striking off
the defence on the ground that the respondent
failed to deposit the rent, the damages due and
th
the cost of the suit inspite of order dated 16
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December, 1998, the first date of hearing and
also failed to deposit water tax and house tax
and thereby not complied with the provisions
under Order XV Rule 5 of the Code of Civil
Procedure (‘CPC’ for short).
4. The learned Civil Judge (S.D), J.P. Nagar by
th
order dated 9 January, 2006 allowed the
application of the appellantplaintiffs and
struck off the defence of the respondent.
5. Against the said order, the respondent filed
revision application in S.C.C R.No.1 of 2006
before the District Judge, J.P. Nagar in
February, 2006. The District Judge, J.P. Nagar by
st
impugned order dated 31 May, 2007 dismissed the
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th
same and affirmed order dated 9 January, 2006
passed by the Trial Court.
6. The respondent thereafter filed a petition
under Article 227 of the Constitution of India
before the High Court of Judicature at Allahabad
registered as Civil Miscellaneous Writ Petition
No. 44387 of 2007. The learned Single Judge
passed the following order:
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“ Heard learned counsel for the
parties.
This is tenant’s writ petition directed
against the order striking off his defence.
The Trial Court/JSCC/Civil Judge (S.D.),
J.P. Nagar passed the order striking off
the defence on 9.1.2006 in SCC Suit No.17
of 1998. Against the said order,
petitioner filed SCC Revision No.1 of 2006
before the District Judge, J.P. Nagar and
the same was dismissed on 31.5.2007.
Defence has been struck off due to some
irregularity in deposit of the monthly
rent, under the provisions of Order 15 Rule
5 C.P.C. The provision of Order 8 Rule 1
C.P.C. is also mandatory in nature.
However, the Supreme Court has held that
still the Court has got jurisdiction and
discretion to accept the written statement
even after expiry of 90 days from the date
of service of summon on payment heavy cost.
The same principle may apply to the cases
under Order 15 Rule 5 C.P.C.
Accordingly, the writ petition is
allowed, both the impugned orders dated
31.5.2007 and 9.1.2006 are set aside. The
petitioner shall pay Rs.10,000/ as costs
and the same shall be deposited by the
petitioner before the Trial Court within 6
weeks from today. In case of default, this
order shall stand automatically vacated.
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It is further directed that the Civil
Judge (S.D.), J.P.Nagar shall make all
efforts to decide the aforesaid suit within
six months.”
7. Learned counsel for the appellants submitted
that the High Court committed a mistake in
exercising its jurisdiction under Article 227 to
set aside concurrent findings of the two Courts
below against the wilful, habitual, consistent,
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persistent, regular and stubborn defaulter
tenant. The High Court exceeded its jurisdiction
going beyond the pleadings and facts and erred by
comparing Order XV Rule 5 CPC with Order VIII
Rule 1 CPC and wrongly gave benefit to the
respondent. It was further contended that the
High Court completely ignored the well reasoned
finding of the Courts below which struck off the
written statement.
8. Per contra, according to counsel for the
respondent, the lower courts wrongly interpreted
Order XV Rule 5 CPC that it is mandatory in
nature whereas the court has jurisdiction and
discretion to accept the written statement even
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after expiry of 90 days from the date of service
of summon on payment of heavy cost as per
decision of this Court. It was further contended
that by the impugned judgment the said mistake
committed by the lower courts was corrected by
the learned Single Judge of the High Court.
9. We have heard the learned counsel for the
parties and perused the record. Both the parties
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relied upon one or the other decision of this
Court which will be referred at an appropriate
stage.
10. In the present case, we find that both the
courts below noticed several defaults committed
by the respondent in depositing the monthly rent.
The aforesaid fact was noticed by the District
Judge, J.P. Nagar, as mentioned in paragraph 11
st
of the order dated 31 May, 2007 and the same is
reproduced below:
“11 . In the present case there are
several defaults committed by the
revisionist in depositing the monthly rent
as under.
The rent of April 1999 must be
th
deposited upto 7 May 1999, it has been
deposited by delay of 20 days on
27/05/1999. No representation in this
behalf has been given by the tenant
explaining the delay. Further the rent of
th
June 1999 has not been deposited upto 7 of
July 1999 nor the rent of month of July 99
was deposited upto 07/08/99, on the
contrary rent of both the months i.e. June
& July 99 has been deposited after a
considerable delay on 23/08/99, although
including the rent of August 99, as well,
but no explanation/representation regarding
the delay in deposit of the month of June
and July 99 has been furnished. In the
same way, the rent of the month of
September, October99 has been deposited
after considerable delay on 08/12/1999
although the rent of November and December
99 has been included therein but no
explanation of such delay in deposit of
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rent of September and October 99, has been
furnished, similarly the rent of Jan, 2000
was deposited on 07/03/2000, and no
explanation/representation was furnished
explaining the delay in deposit, although
the rent of February, March and April 2000
has been included therein similarly, the
rent of May and June – 2000 has been
deposited on 27/07/2000 including the rent
of Month of July and August 2000 but no
explanation/representation regarding the
delay deposit of the month of May and June
2000 was given by the tenant. Further the
rent of Sep.2000 was deposited on
06/11/2000 in which the rent of October,
November and December2000, was included.
The delay deposit of rent of the month of
September has not been explained. The rent
of January,2001 was deposited after a
considerable delay on 22/03/2001 in which
the rent up to April 2001 has been
deposited the rent of May, June, July,
August, September, October and November
2001, total 7 months of rent was deposit on
5/12/2001 including the month of December
2001, there is no
explanation/representation regarding this
huge delay of deposit of the rent of month
May, June, July, August, September and
October, 2001. The rent of January and
February was deposited on 11/03/2002 no
representation/explanation of this delay,
too has been given, the rent of September,
October, November and December 2002 was
deposited for the first time on 11/12/2005
by tender 122/C after moving the
application for striking off the defence.
In this deposit as well there is no
representation/explanation of this delay of
more than two years. The rent of Jan 2003
was deposited on 18/02/03, rent of
September, October, November and December
2003 and Jan 2004 was deposited on
04/03/2004 in this deposit as well no
representation/explanation of any kind has
been given by the tenant. The rent of May,
June, July 2004 has been deposited on
25/08/2004 in this deposit as well no delay
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has been explained.........................
The tenant in this case only made
representation that he had deposited the
correct money rent but he did not file any
application for extension of time. In the
circumstances, therefore, the courts below
were right in holding that there was a
default in payment of the monthly rent and
since there was also no application for
extension of time under sub rule (2) of
Rule 5 of Order XV C.P.C. the defence was
liable to be struck off. The order of the
High Court in the writ petition is
therefore not sustainable.”
11. Rule 5 of Order XV, Code of Civil Procedure,
was enacted by the U.P. Civil Laws (Amendment)
Act, 1972 and the said Rule reads as follows:
“ 5. Striking off defence for failure to
—(1) In any suit by a
deposit admitted rent.
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 the monthly amount due as
aforesaid, the Court may, subject to the
provisions of subrule (2) strike off his
defence.
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Explanation 13
(2) Before making an order for striking
off defence, the court may consider any
representation made by the defendant in
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that behalf provided such representation is
made within ten 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.”
12. In Bimal Chand Jain v. Sri Gopal Agarwal
(1981) 3 SCC 486, this Court having noticed the
aforesaid provision held as follows:
“6. It seems to us on a comprehensive
understanding of Rule 5 of Order XV that
the true construction of the Rule should be
thus. Subrule (1) obliges the defendant to
deposit, at or before the first hearing of
the suit, the entire amount admitted by him
to be due together with interest thereon at
the rate of nine per cent per annum and
further, whether or not he admits any
amount to be due, to deposit regularly
throughout the continuation of the suit the
monthly amount due within a week from the
date of its accrual. In the event of any
default in making any deposit, “the court
may subject to the provisions of subrule
(2) strike off his defence”. We shall
presently come to what this means. Subrule
(2) obliges the court, before making an
order for striking off the defence to
consider any representation made by the
defendant in that behalf. In other words,
the defendant has been vested with a
statutory right to make a representation to
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the court against his defence being struck
off. If a representation is made the court
must consider it on its merits, and then
decide whether the defence should or should
not be struck off. This is a right
expressly vested in the defendant and
enables him to show by bringing material on
the record that he has not been guilty of
the default alleged or if the default has
occurred there is good reason for it. Now,
it is not impossible that the record may
contain such material already. In that
event, can it be said that subrule (1)
obliges the court to strike off the
defence? We must remember that an order
under subrule (1) striking off the defence
is in the nature of a penalty. A serious
responsibility rests on the court in the
matter and the power is not to be exercised
mechanically. There is a reserve of
discretion vested in the court entitling it
not to strike off the defence if on the
facts and circumstances already existing on
the record it finds good reason for not
doing so. It will always be a matter for
the judgment of the court to decide whether
on the material before it, notwithstanding
the absence of a representation under sub
rule (2), the defence should or should not
be struck off. The word “may” in subrule
(1) merely vested power in the court to
strike off the defence. It does not oblige
it to do so in every case of default. To
that extent, we are unable to agree with
the view taken by the High Court in Puran
1
Chand . We are of opinion that the High
Court has placed an unduly narrow
construction on the provisions of clause
(1) of Rule 5 of Order XV.”
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13. The same very provision of Rule 5 of Order XV
fell for consideration before this Court in Smt.
Satya Kumari Kamthan v. Noor Ahmed and others
1992 (2) Allahabad Rent Cases 82 (SC). That was
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the case when the plaintiff filed an application
for striking off, the tenant filed a written
statement objecting to the striking off on the
ground that there was no default in payment of
the monthly rent as provided under Rule 5(1) of
Order XV. The Courts below did not accept the
said contention and found as a fact that there
was a default in payment of the admitted rent.
The Courts below also noticed that though there
was a default there was no “representation” by
the tenant giving any excuse for not depositing
the correct amount or praying for extension of
time for deposit for valid reasons and that,
therefore, the plaintiff of the said case was
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held to be entitled to get the defence struck
off. This Court referring to the provisions of
Rule 5 of Order XV and relying on decision of
this Court in Bimal Chand Jain (supra) held that
if the tenant has not made any representation
under Rule 5 of Order XV and there is a default
in payment of rent, it is open to the court to
strike off the defence. The word “representation”
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may cover a “representation” in answer to an
application for striking off or a
“representation” praying for an extension of time
for making the deposit on sufficient grounds.
14. In Mangat Singh Trilochan Singh v. Satpal
(2003) 8 SCC 357 this Court noticed the
discretionary power of the Trial Court in the
matter of striking off defence under Order XV of
Rule 5 as in the said case Trial Court refused to
strike off the defence of the tenant on the
ground that a substantial question of
jurisdiction was involved. The Trial Court also
came to the conclusion that as arrears of rent
having been deposited in Bank there were no mala
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fide on the part of the tenant and that the
arrears were thereafter deposited in court with
an application or representation made in
accordance with subrule (2) of Rule 5. This
Court held that refusal to strike off defence and
acceptance of deposit of arrears of rent was
justified.
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15. In the present case, the Trial Court fully
applied its mind while exercising its
discretionary power to strike off the defence.
The grounds were noticed, as mentioned at
Paragraph 11 of the judgment passed by the
District Judge and is quoted above. Learned
District Judge exercising its revisional
jurisdiction, affirmed the order passed by the
Trial Court. The aforesaid judgment(s) cannot be
said to be perverse nor can it be said that the
courts below have exceeded or failed to exercise
their jurisdiction. The power to strike off the
written statement vested under Rule 5 of Order XV
was exercised by the lower courts after going
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through the facts of the case.
16. Inspite of the aforesaid fact, we find that
the High Court failed to give any ground while
exercising its inherent power under Article 227
of the Constitution of India. Learned Single
Judge by impugned judgment observed that the
Supreme Court has held that the Court has
jurisdiction and discretion to accept the written
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statement even after expiry of 90 days from the
date of service of summons on payment of heavy
cost. Defendant has neither cited any decision
nor shown any ground for acceptance of written
statement even after expiry of 90 days from the
date of service of summons on payment of heavy
cost. The order passed by the Trial Court by
and
exercising its discretionary power the order
passed by the Revisional Court affirming the
Trial Court order were not perverse and both the
courts below have not exceeded their
jurisdiction. Hence, it was not open to the High
Court to sit in appeal under Article 227 of the
Constitution of India to alter such finding of
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facts and to accept the written statement without
any ground.
17. For the reasons aforesaid, we have no option
th
but to set aside the impugned judgment dated 17
September, 2007 passed by the learned Single
Judge, High Court of Judicature at Allahabad in
Civil Miscellaneous Writ Petition No.44387 of
2007 and allow the appeal. The Trial Court is
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expected to decide the Suit No.17 of 1998
expeditiously as the matter is pending since
long. No costs.
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
AUGUST 30, 2013
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