Shailsma Industries and Another vs Hira Lal and Sons

B.K. Rathi, J.—The opposite party filed a suit for eviction after termination of tenancy from the disputed premises and for recovery of rent against the revisionists, which is Suit No. 31 of 1999. The revisionists contested the suit. However, their defence has been struck off under the provisions of Order XV, Rule 5, Code of CPC for not depositing the rent by the impugned order dated 3.5.2002. Aggrieved by it, the present revision has been preferred.

I have heard Sri V. K. Goel, learned Counsel for the revisionists and Sri Sah O. P. Agarwal, learned Counsel for the opposite party.

The premises in dispute is godown, which was let out to the revisionists in the year 1995 at rental of Rs. 3,500 per month and lease deed was executed. The suit for eviction was filed in the year 1999 and in the application for striking off the defence, the opposite party mentioned that the revisionists have not paid rent from 1.10.1997. The trial court found that rent has not been paid as required by Rule 5 Order XV, Code of CPC and, therefore, struck off the defence.

It has been argued by the learned Counsel for the revisionists that the godown is covered by tin shade and it was leaking which caused damage to the goods of the revisionists. That by letter dated 15.8.1997, the opposite party allowed the revisionists to repair the roof by spending amount not exceeding Rs. 21,000. The revisionists spent Rs. 6,000 in the repairs of the roof but it was found that the roof was beyond repair and entire tin sheets are required to be changed and, therefore, the repair work was stopped. That the opposite party was requested to change the sheets and the opposite party agreed to change the roof and it was further agreed between the parties that no rent shall be payable by the revisionists from 1st day of October, 1997, till the tin sheets are replaced and the roof is made wind proof or water proof. According to the agreement, no rent was payable from 1st October, 1997 and accordingly, the rent was not deposited and, therefore, the defence cannot be struck off under Order XV Rule 5, Code of Code of Civil Procedure

It has been argued by the learned Counsel for the opposite party that there is written agreement of tenancy, according to which, the rent is payable. That, therefore, the alleged agreement cannot be accepted nor can be proved. However, this argument of the learned Counsel for the opposite party cannot be accepted. If there is any subsequent agreement, even if it is oral, the same may be proved under the provisions of Clause (4) of Section 92 of the Evidence Act, as the alleged subsequent agreement is not required by law to be in writing and registered. Therefore, it is a matter of evidence whether there was such an agreement. The question for consideration is that in view of the pleading that no rent is payable from 1.10.1997, the defence of the revisionists could be struck off. For appreciating the argument, the provisions of Order XV Rule 5, Code of CPC are extracted below:

"5. Striking off defence for 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 percent 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, (emphasis given) 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.

It has been argued by Sri Goel, learned Counsel for the revisionists that the rent is payable within one week from the date of its accrual. That the Defendants-revisionists have denied the rent which has accrued and, therefore, this provision will not apply.

It has been further argued that the words "whether or not he admits any amount to be due" apply to the earlier clause.

The argument of the learned Counsel cannot be accepted. In the earlier clause of Rule 5, the requirement is of deposit of amount admitted by the Defendant to be due. Therefore, there is no question of mentioning the words "whether or not he admits any amount to be due. These words are clearly regarding the provision of subsequent deposit of monthly rent. Therefore, the monthly rent is required to be deposited irrespective of the fact whether the Defendant admits any amount to be due or not.

The words "from the date of its accrual" mentioned in the above clause cannot be contrary to the earlier words "whether or not he admits any amount to be due". The harmonious interpretation of the entire Rule has be taken and the words "the date of its accrual" has to be read as to be the alleged date of accrual. The two clauses in one section cannot be contrary to each other. Therefore, under this Rule, irrespective of the fact whether the amount due is admitted or not, the Defendant is required to deposit the rent from the alleged date of accrual. It is no doubt true that word "alleged" has not been used in the Rule but for proper interpretation of the clause, the word "alleged" has to be read before the words "date of accrual".

In view of the above, even if there was any agreement as alleged, the revisionists were bound to deposit the rent at the admitted rate.

This view finds support from the decision of Hon''ble Sudhir Narain, J., in Smt. Kailash Devi v.I Vth Additional District Judge, Allahabad and Anr. 1995 (1) AWC 50: 1995 (25) ALR 7 . It was held in this case that the monthly rent has to be deposited month to month whether or not the Defendant admits any amount to be due. Similar view was taken by Hon''ble D. S. Sinha, J., in Bal Krishna Vs. Ramanand Dixit and another, . It was held in this case that the Defendant cannot take the plea that the accrued rent should be adjusted in the amount of advance deposited by him.

In view of the above, I find that the revisionists are not entitled to any benefit at this stage of the pleading that there was an agreement that rent was not payable from 1.10.1997. According to the lease agreement, the monthly rent was payable which has not been disputed. The defence was, therefore, rightly struck off.

The revision is without merit and is hereby dismissed. The stay order, if any, is vacated.