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2003(7) Supreme 1
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Shivaraj V. Patil & D.M. Dharmadhikari, JJ.
M/s. Mangat Singh Trilochan Singh Thr. Mangat Singh (dead) Thr. LRs. & Ors. -Appellants
versus
Satpal -Respondent
Civil Appeal Nos. 6605-6606 of 2002
Decided on 26-9-2003
Counsel for the Parties :
For the Appearing Parties : G.L. Sanghi, V.C. Mahajan, Sr. Advocates, Dhruv Mehta, Mohit Chaudhary, Ms. Shalini Gupta, S.K. Mehta, Dr. Meera Agarwal, R.C. Mishra, Rakesh K. Khanna, Ms. Rashmi Khanna, Reetesh Singh, Surya Kant, S.M. Sarin, P.N. Suri, Advocates.
Held :After hearing the learned counsel appearing for the contesting parties and perusing the orders of the trial court and the High Court, we find that the question of law raised stands concluded in favour of the tenants. Our conclusion, therefore, is that these appeals must be allowed by setting aside the orders of the High Court and remitting the cases to the trial court for proceeding further with the trial of the suit. (Para 6)
The trial court placed reliance on the decisions of this Court (supra) which have also been relied upon for the tenants before us on the interpretation of the provisions of Order XV Rule 5 of the Code. This Court has held that it is not obligatory for the court in every case to strike off defence only because there is delay in deposit of the arrears of rent. The court has discretion in the matter and the power to strike off the defence is to be exercised with due regard to the facts and circumstances of each case. (Para 9)
In the instant cases before us, the trial court accepted the deposit of arrears of rent by the tenants and refused to strike off defence for more than one valid reason. The most important reason assigned by the trial Judge is that there is a serious question of jurisdiction of the civil court involved in the cases. The court also came to the conclusion that as the arrears of rent were deposited -in the Bank, there were no mala fides on the part of the tenants. The rent was not withheld for any ulterior purpose. The arrears of rent were, thereafter, deposited in court with an application or representation which was made in accordance with Sub-rule (2) of Rule 5 of Order XV of the Code. (Para 12)
Held also : The last submission made on behalf of the tenants has also great force that since the trial court had exercised its jurisdiction lawfully by refusing to strike off defence and accepting the deposit of arrears of rent, the High Court could not justifiably interfere with the same in exercise of its revisional jurisdiction under section 115 of the Code. As a result of the discussions aforesaid, we find that the trial court had exercised its jurisdiction in accordance with law in refusing to strike off the defence of the tenants. In the result, these appeals succeed and are, accordingly, allowed. The impugned orders dated 25.2.2002 of the High Court in all these cases are hereby set aside. These cases are remitted to the trial court for proceeding with the suits in accordance with law. (Paras 13 and 14)
Key Points: - The Court held that it is not obligatory in every case to strike off defence solely due to delay in deposit of arrears; the court has discretion based on facts and circumstances. (!) - The interpretation of "first hearing" for the purpose of Order XV Rule 5 is that it refers to the date when the court applies its mind to the case, not necessarily the date fixed for hearing or returnable date. (!) - The deposits of arrears were accepted in bank/court and found not to be mala fides; the trial court's refusal to strike off defence was upheld, and revisional interference was inappropriate. (!) (!) (!) - The Supreme Court reversed the High Court, remitting the cases to the trial court for proceeding with the suits in accordance with law. (!) (!) - The rule allows withdrawal of deposited amounts by the plaintiff, provided it does not prejudice the claimant’s rights, and such deposits may be considered in determining whether to strike off defence. (!) (!)
JUDGMENT
Dharmadhikari, J.-The High Court by the orders impugned in these appeals has reversed the judgment of trial court and defence of the petitioners - tenants in each of the cases has been struck off on the alleged ground of non-deposit of arrears of rent within the specified period in accordance with provisions of Order XV Rule 5 of the Code of Civil Procedure [hereinafter referred to as the Code].
2. The trial court by separate orders passed in each of the cases had rejected the prayer of the landlords for striking off the defence and allowed the applications of the appellants - tenants seeking permission to deposit the arrears of rent.
3. Learned senior counsel Shri G.L. Sanghi appearing for the appellants - tenants has brought to our notice the contents of the summons served by the trial court on the tenants after the institution of the suit for eviction against them. Relying on the contents of the summons, the submission made is that only a date of appearance of the parties was intimated and it was not a date fixed for hearing of the suit. It is further submitted that since the date mentioned in the summons was not the date for hearing of the parties in the suit, the period specified for deposit of rent under Order XV Rule 5 of the Code could not be reckoned from that date. Reliance is placed on the decisions of this court in Sham Lal (Dead) By LRs. vs. Atme Nand Jain Sabha (Regd.)., Dal Bazar [1987 (1) SCC 222] and Bimal Chand Jain vs. Sri Gopal Agarwal [1981 (3) SCC 486].
4. Relying on the same decisions of this Court (supra) the next submission made is that the power of the court to strike off the defence, in the event of non-deposit of arrears of rent within the specified period, is discretionary and it is not compulsory for the court in every case to take such extreme step of penalising the tenant. Lastly, it is submitted that the trial court having exercised its discretion by not striking off the defence of the tenants and accepting the rent deposited, the High Court had no justification in exercise of its revisional jurisdiction under Section 115 of the Code, to interfere with the same.
5. In reply, learned senior counsel Shri V.C. Mahajan appearing for the respondents - landlords supported the orders of the High Court and placed reliance on the decision of this Court in Anandi Devi vs. Om Prakash [1987 (Suppl) SCC 527].
6. After hearing the learned counsel appearing for the contesting parties and perusing the orders of the trial court and the High Court, we find that the question of law raised stands concluded in favour of the tenants. Our conclusion, therefore, is that these appeals must be allowed by setting aside the orders of the High Court and remitting the cases to the trial court for proceeding further with the trial of the suit.
7. The Order XV Rule 5 of the Code as applicable to the State of Punjab, Haryana and Chandigarh reads as under :-
"5. 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 interests 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 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 amou
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