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Judgment
G.S. Sandhawalia, J.—The present appeal has been filed by the defendant, who is aggrieved against the judgment and decree dated
09.04.2011 passed by the Trial Court, whereby the suit for ejectment of the plaintiff was allowed and the defendant was directed to hand over the
vacant possession of shop Nos. 11 and 12 situated in Anmol Market, village Dad, Ludhiana (west) as shown in the jama bandi for the year 2004-
05 and the consequential relief of the recovery of rent from 01.03.2007 to 31.01.2010 @ Rs. 4,000 amounting to Rs. 1,40,000 alongwith interest
@ 9% per annum was granted. The said order has been upheld in appeal by the Additional District Judge, Ludhiana on 30.11.2011. The brief
facts of the case are that the plaintiff-respondent, who is the owner and land-lady of shops No. 11 and 12 had filed the suit as mentioned above
alleging that the said premises were let out at a monthly rent of Rs. 4,000 by the husband of the plaintiff and after the death of the husband, she is
the owner and landlord of the shop(s) in dispute. The plaintiff and her husband were settled in Norway and she was an NRI and needed the shops
to establish business by her children. It was alleged that defendant was in arrears of rent since November 2005 @ Rs. 4,000 and the defendant
had failed to pay the rent since November 2005. In spite of the notice being served upon the respondent, no rent was paid since November 2005
and under the provisions of Order 15 Rule 5 CPC, the tenant was bound to pay the rent on the first date of hearing, otherwise, the defence of the
defendant was liable to be struck off. The property being situated at village Dad was out of the limits of the Municipal Corporation, Ludhiana and
the defendant not being a good tenant committing default in the payment of rent, he had no right to retain the possession. The said suit was filed on
31.01.2010 and, therefore, in view of limitation, rent was claimed from 13.01.2007. In the plaint, it is also pleaded that the defendant had filed a
suit for permanent injunction and in the suit itself, it had been admitted that notice had been served on the defendant by the husband of the plaintiff
on 13.11.2005. In spite of the fact that the plaintiff served notice dated 15.01.2010 u/s 106 of the Transfer of Property Act, 1882 and in view of
the fact that in spite of the receipt of notice, the defendant did not pay the arrears of rent and failed to hand over vacant possession, the defendant
was requested many times to hand over the vacant possession, which led to filing of the suit.
A written statement was filed denying the maintainability of the suit and seeking protection under East Punjab Urban Rent Restriction Act, 1949
and that the suit was barred by limitation. Reference was also made to the pending suit for injunction and it was alleged that the defendant was
paying rent @ 1,000 per month and the rent stood paid upto April 2009 and thus rent had been paid and the demand from January 2007 was
wrong and notice dated 13.11.2003 was served by the husband of the land-lady.
In the suit, an application dated 03.02.2010 under Order 15 Rule 5 CPC was also filed wherein, it was pleaded that under the said provisions,
the defendant was bound to deposit the rent on the first date of hearing alongwith interest. Reply to the said application was filed, wherein, it was
pleaded that there was no rent due and the application was not maintainable. The arrears of rent from November 2005 were also denied and it
was pleaded that the rate of rent was Rs. 1,000 per month and that the rent upto 10.04.2009 stood already paid by the defendant. The averments
regarding the liability to pay on the first date of hearing were also denied by the appellant-tenant and it was pleaded that the defendant was not
bound to deposit the rent or pay the rent to the landlord on the first date of hearing and that in case of non-payment of rent, it was alleged that the
defence of the defendant was not liable to be struck off.
Thereafter, the trial Court passed an order dated 12.02.2011 whereby, it noticed the pleadings and came to the conclusion that the defendant
was in arrears of rent since October 2009 and had failed to produce any rent receipt showing the rate of rent and, therefore, assessed rent @ Rs.
2,000 per month with interest @ 9% per annum and in view of the fact that tenancy rights of the defendant had been terminated by virtue of notice
u/s 106 of the Transfer of Property Act, 1882, fixed 15.03.2011 for tendering the rent, failing which, the defence of the defendant would be struck
off and disposed of the application under Order 15 Rule 5 CPC. That since the said order was not complied with on 15.03.2011 and an
application for granting opportunity to the defendant for depositing the rent was filed on the said date before the trial Court on the ground that the
defendant was having no knowledge regarding the payment of rent on 15.03.2011 and his counsel had appeared on 12.02.2011 and the case was
adjourned for 15.03.2011 for assessment of rent on an application under Order 15 Rule 5, CPC but on appearance it revealed that the application
had already been disposed of by the Court on 12.02.2011 itself and the rent had been fixed. Accordingly, the defendant prayed for opportunity to
deposit the rent in the interest of justice. That the trial Court noticed that since the defendant had failed to tender the rent and comply with the order
dated 12.02.2011 and the application had been filed, held that the Court had no alternative but to strike off the defence of the defendant as the
defendant had failed to tender the rent and accordingly, defence of the defendant was struck off on 15.03.2011 and the case was adjourned to
04.04.2011 for evidence of the plaintiff.
That the appellant preferred a Civil Revision No. 2287 of 2011 before this Court wherein, it was contended that the counsel for the appellant
had not appeared when the order dated 12.02.2011 was passed regarding the assessment of rent and rather a proxy counsel had appeared but
had not informed the counsel about the order and, therefore, an application had been filed before the trial Court on the next date i.e. on
16.03.2011 for granting time to deposit the entire arrears of rent but the same had been declined. This Court, vide order dated 04.04.2011,
directed the appellant to comply with the order of the trial Court dated 12.02.2011 and deposit the entire arrears of rent alongwith the rent which
became due thereafter and upto date rent within a week and the trial Court was directed to adjourn the case beyond the date fixed before this
Court which was 17.05.2011.
However, in the interim period, the plaintiff examined herself as PW-1 and tendered her affidavit, site plan and legal notice and examined one
Balbir Singh as PW-2, who also submitted his affidavit and closed her evidence. Since the defence of the defendant had been struck off vide order
dated 15.03.2011, the trial Court decreed the suit and directed the defendant to hand over vacant possession of shops No. 11 and 12 situated in
Anmol Market, Village Dad, Tehsil and District Ludhiana, as noticed above and also granted the relief of recovery of rent vide judgment and
decree dated 09.04.2011.
Aggrieved against the said judgment and decree, the appellant filed an appeal before the Lower Appellate Court on 05.05.2011, wherein
various grounds were taken including that the plaint was liable to be rejected under Order 7 Rule 11 CPC and that the order dated 04.04.2011 of
the High Court had not been obeyed by the trial Court and the certified copy of the same was received on 08.04.2011 and was produced before
the Presiding Officer on 09.04.2011, who said that he had pronounced the judgment in question and was unable to receive the said order of the
High Court. In the appeal, it was also mentioned that the plaintiff was still ready and willing to obey the orders of the Hon''ble High Court. That on
31.05.2011, in an application moved for staying the execution of the impugned judgment and decree before the Lower Appellate Court, the
District Judge, Ludhiana stayed the operation of the impugned judgment and decree till disposal of appeal, subject to deposit of the amount of Rs.
1,77,800 by the appellant by the 15th of next month and on payment of future rent @ Rs. 4,000 payable on 15th of every month. The rent from
the month of February onwards till 31.05.2011 was to be paid without interest upto 15th of the next month, failing which, the order would stand
vacated and the appellant was directed to continue to deposit the future rent @ Rs. 4,000 by the 15th of each month.
That the Lower Appellate Court thereafter dismissed the appeal of the plaintiff while noticing that the tenancy rights of the defendant had been
terminated by virtue of notice u/s 106 of the Transfer of Property Act, 1882 and the trial Court had given a sufficient long time for payment of the
assessed rent from 12.02.2011 to 15.03.2011 but he had failed to make the payment of the assessed rent and thereafter the evidence had been
led by the plaintiff and by considering the evidence on record, the suit had been decreed. On the issue of the non-compliance of the order of this
Court, it was noticed that the order dated 04.04.2011 was never conveyed to the trial Court and nor was it received by way of proper channel
through the office and neither brought to the notice of the Court by filing any affidavit or application. The certified copy of the order passed in Civil
Revision No. 2287 of 2011 was issued on 08.04.2011. There was nothing before the trial Court to show that the said order was shown to the
Court on 09.04.2011, when the final order was passed decreeing the suit in favour of the respondent-landlady. Accordingly, it was held that the
order was not in the knowledge of the trial court and, therefore, since the defence had been struck off and evidence had been brought on record,
the trial court had come to a valid conclusion and decreed the suit. Thus, it was held that the impugned judgment and decree had been rightly
passed. The shop numbers in the decree sheet were directed to be corrected since another similar case was pending against one Satpal Singh
against whom similar order had been passed and the rate of rent was Rs. 4,000 because in the dispute in issue, there were two shops.
Aggrieved against the said orders, the present appeal has been filed.
Counsel for the appellant has vehemently contended that the order dated 04.04.2011 passed by this Court was shown to the trial court on
09.04.2011 but the Court did not obey the orders and informed the appellant that he had pronounced the order. It is also argued that the trial
court was informed about the order passed by this Court on 04.04.2011. It is further argued that the case of the defendant could not be decreed in
this manner and he should have been allowed to contest the issue, at least.
The submissions made by the counsel are attractive but cannot be accepted in view of the fact that the consistent conduct of the appellant
shows that he has been avoiding the compliance of the orders of the Court and has been playing a waiting game and trying to avoid the deposit of
rent. This fact emanates from the order dated 12.02.2011, wherein it is noticed that by the trial Court that in spite of repeated calls, the counsel for
the appellant/defendant was not coming present and his junior was requesting for an adjournment. Accordingly, the order was passed in the
presence of the proxy counsel for the appellant/defendant. The relevant portion of the order dated 12.02.2011 is reproduced as under :-
I have heard the arguments put forth by Counsel for plaintiff only as counsel for defendant has not come present despite repeated calls and his
junior requested for adjournment. Present application is pending since long and Ld. Counsel for applicant/plaintiff also pressed his application for
disposing off the same.
Thus, it transpires that the appellant was trying to avoid the fixation of rent, which was eventually done on 12.02.2011 and the case was fixed
for 15.03.2011. Thereafter, an application was filed on the same date that the case has been adjourned from 12.02.2011 but the defendant had no
knowledge that he had to pay the rent on that day and, therefore, he was not in a position to deposit the rent, even though, admittedly, the proxy
counsel for the defendant had appeared on the said date. Thereafter, the Court was thus left with no option but to strike off the defence of the
appellant/defendant by declining the application for extending the time to make the payment. The appellant was not satisfied thereafter and filed an
application for rejecting the plaint for want of sufficient Court fees dated 25.03.2010. That when the order was passed by this Court on
04.04.2011 and it was directed that he would deposit the amount within a week even then the appellant did not make the said deposit, therefore,
the case was decided on 09.04.2011 on the ground that the plaintiff/respondent had led the evidence and the defence of the defendant was struck
off. Another fact which is to be noticed is that when the appeal was filed before the District Judge on 05.05.2005 and the grounds of appeal dated
25.04.2011 show that even in appeal, the amount was not deposited and an averment was made that the appellant was ready and willing to obey
the orders of the High Court and only when execution was being carried out since no stay had been granted, the District Judge directed the
payment of the amount vide order dated 31.05.2011. The said order reads as under :-
Jagdev Singh v. Balwant Kaur
31.5.2011 :- Present :- Ms. Mandeep Kaur, Adv. for appellant.
Sh. B.K. Rampal, Adv. for respondent.
File taken up today as I was on leave on 30.5.2011. an application has been moved for staying execution of impugned judgment and decree, on
the ground that prima-facie case and balance of convenience are in favour of the appellant, who shall suffer an reparable loss and injury by refusal
of stay on execution of impugned judgment and decree.
This application has been opposed, but after careful consideration, the court is of the considered view that disposal of appeal is likely to take
some times and the very purpose of appeal shall be disconcerted if the stay of execution of the impugned decree is not granted and accordingly,
the application is accepted and the operation of impugned judgment and decree is ordered to be stayed till disposal of the appeal, subject to
deposit of amount of Rs. 1,77,800/- by the appellant with the respondent by 15th of next month and on payment of future rent @ Rs. 4000/-
payable on 15th of every month; rent of month of February onwards till 31.5.2011 be also paid without interest uptil 15th of next month, failing
which this order shall stand vacated. Appellant shall also continue deposit future rent at the rate Rs. 4000/- by the 15th of each month. File be put
up on 29.7.2011 date already fixed.
That in order to save himself from ejectment, the amount was deposited in compliance of the said order and the appeal was decided on merits
after taking into account that in view of the provisions of Order 15 Rule 5 CPC, there was no option left with the Trial Court as the defence of the
defendant/appellant had been struck off and the plaintiff/respondent had led evidence and the trial Court had ordered ejectment accordingly. The
Lower Appellate Court also noticed that there was nothing on the record to show that the order dated 04.04.2011 had been communicated to the
trial Court officially and neither any affidavit or application had been placed on record by the counsel for the defendant-appellant before trial Court
on 09.04.2011 and, therefore, it was not in the knowledge of the trial Court when it passed the order of ejectment.
The counsel for the appellant has contended that due to the delay in the receipt of the certified copy, the said order could not be produced
before the trial court in time but the trial Court was informed on 09.04.2011 but it was told that since the order had been pronounced and
ejectment had been ordered, therefore, the case could not be adjourned and argued that since the amount has already been deposited now,
therefore, he should be heard on merits. The said contention cannot be accepted in view of the fact as noticed above that the appellant has been a
consistent defaulter and from his conduct, it is clear that he has been playing a game of hide and seek with the landlady. Firstly, in his written
statement, he had admitted that the rent had only been paid upto April 2009 but in the reply to the application under Order 15 Rule 5 CPC,
contended that he was not bound to deposit the rent. Once the application was to be decided on merits, the counsel for the defendant chose not to
appear and sent his junior as a proxy counsel. In spite of an order being passed for assessment, the same was not complied with and an application
for extension was filed on the day the rent had to be deposited, which was rejected, in which it was alleged that the counsel or the defendant were
not aware and they had no knowledge regarding the payment of rent. Before the High Court, in the Civil Revision, it was contended that the proxy
counsel, who had appeared, did not inform the counsel and hence he could not convey the same to the appellant and that the application was filed
on the next day on 16.03.2011 for depositing the amount which is in contradiction to the application dated 15.03.2011, which has been placed on
record.
The counsel has contended that he has deposited the amount and, therefore, he should have been heard on merits. This contention, however, is
also without any substance since the deposit is for the occupation of the premises and once the tenancy had been terminated, the premises were
liable to be vacated. It is the case of the appellant himself that he has not paid rent from April, 2009 onwards, therefore, the amount deposited for
the last 32 months of occupation alongwith interest was payable by the appellant for use and occupation of the premises.
As noticed above, in spite of the fact that this Court had directed the appellant to deposit the rent within one week, but he was forced to
deposit the same only when the stay application was to be pressed and the amount was deposited after the District Judge ordered on 31.05.2011.
Even in the appeal filed before the Lower Appellate Court, no application was filed that the amount is being deposited in compliance of the orders
of this Court. That the provisions of Order 15 Rule 5 CPC as amended by the State of Punjab read as under :-
Punjab.-In Order XV Rule 4, insert the following rule, namely :-
Striking off defence for failure to deposit admitted rent.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease
and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit
the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any
amount to be due, he shall throughout the continuation of the suit regularly deposit the amount due within a week from the date of its accrual, and in
the event of any default in making the deposit of the entire amount admitted by him to be due or monthly 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, deposited in any Court.
Explanation 3.-(1) The expression ""monthly amount due"" means the amount due every month, whether as rent or compensation for use and
occupation at the admitted rate of rent, after making on other deduction except the taxes, if any, paid to a local authority, in respect of the building
on lessor''s account.
(2) Before making an order for striking off defence, that Court may consider any representation made by the defendant in that behalf provided
such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1) as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:
Provided that such withdrawal shall not have he 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 or any account, the Court may require
the plaintiff to furnish the security for such sum before he is allowed to withdraw the same."" (w.e.f. 13-5-1991).
That the above said provisions have been held to be mandatory in 2004(3) R.C.R. (Civil) 101: 2004(1) R.C.R. (Rent) 619 : 2004 (3) PLR
474, Gurjit Singh Gill v. Major Paramjit Singh Gothra. Relevant portion reads as under :-
After hearing the learned counsel and perusing the impugned order, I am of the considered view that this petition is devoid of any merit and is
thus liable to be dismissed. The payment of rent under Rule 5 of the Order XV of the Code is mandatory and if the defendant-petitioner commits
default in making payment of arrears then the consequences flowing from Rule 5 of Order XV are bound to flow namely that his defence has to be
struck off.
XXX XXX XXX
A perusal of Rule 5 shows that the defendant-petitioner is under an obligation to pay the entire arrears of rent for possession for use and
occupation at or before the first hearing of the suit together with interest thereon @ 9 per cent p.a. It is also provided that he shall keep on
depositing regularly the monthly amount of rent within one week from the date of its accrual. In case of any default the defence of the tenant is
bound to be struck off. The Civil Judge has committed no error in holding that the provisions are mandatory in character. There is also sufficient
evidence on record that the rate of rent of Rs. 3,300/- p.m. has been conceded by the defendant-petitioner because he filed an earlier suit with a
prayer of permanent injunction in respect of the suit property that he should not be forcibly dispossessed except in due course of law. On the
statement made by the plaintiff-respondent, the petitioner has withdrawn his suit on 13.9.2002. According to the averments made in the
aforementioned suit the rate of rent fixed between the parties was Rs. 3,300/- p.m. and the plaintiff-respondent was stated to be the real owner of
the property in dispute. Therefore, the Civil Judge has proceeded on the basis of adequate evidence and has rightly concluded that the rate of rent
is admitted to Rs. 3,300/- p.m. It appears to be well settled that provisions of Order XV Rule 5 of the Code are mandatory in character. The
failure of deposit the admitted arrears of rent may result into striking off the defence of the tenant. In support of the aforementioned view, reliance
could be placed on a judgment of the Supreme court in the case of Anandi Devi v. Om Prakash It is equally well settled that in every case the
striking off defence of the tenant is not necessary as has been laid down by this Court in the case of Raj Kumar Mittal v. Arvind Kumar Jain, 2003
(1) RCR (Civil) 371 (P & H) : 2003 (1) RCR (Rent) 63 P&H: 2003 (1) PLR 295. It would be appropriate to make a reference to the
observations made by the Supreme Court in Anandi Devi case (supra) which reads as under :-
The learned Additional District Judge has failed to appreciate that the respondent having failed to comply with the requirements of Order 15, Rule
5 of the Code of Civil Procedure, 1908 by not making a deposit of arrears of rent together with interest and costs, the appellant''s application for
striking off the defence ought to have been allowed and thereafter the suit for eviction should have been decreed u/s 22(a) of the Act. In this view,
the judgment and order of the High Court as well as that of the learned District Judge cannot be sustained. We accordingly set aside those
judgments, allow this appeal.
From the above provisions, it would be clear that stress has been made on the first hearing which means the date for filing the written statement
and it is mandatory for the defendant to deposit the entire amount admitted by him due together with interest thereon @ 9% per annum. The said
provisions are thus mandatory and with the purpose to ensure that the tenant does not continue to occupy the premises without the payment of
rent.
In the present case, as noticed above, the appellant has been remiss at all stages and even contested the application under Order 15 Rule 5
CPC that he was not liable to pay the rent and in fact the conduct of the appellant goes on to show that he wanted to harass the landlady and not
comply with the orders of this Court and, therefore, in the absence of any bona fides in the present case, the orders under appeal are not liable to
be interfered with. The trial court had no option but to order ejectment in view of the mandatory provisions and since the deposit had not been
made thereafter also, the Lower Appeal Court is justified in declining the relief in appeal. Accordingly, since no substantial question of law arises
for consideration from the facts and circumstances of the case, the present appeal is dismissed.