The court emphasized that the discretionary power under Order XV Rule 5 of the CPC must be exercised judiciously, particularly in cases of non-payment of rent, reflecting the parties' conduct.

Judgment

Mr. Harkesh Manuja, J.

This order of mine shall dispose of above-mentioned both civil revisions, wherein similar facts and controversy are involved. For reference, facts are being taken from CR-1991-2020 titled as ‘Lala Mathura Prasad Trust (Regd.) Vs. Rajiv Kumar and others’.

2. By way of present revision petition, challenge has been made to an order dated 28.01.2020 (Annexure P-7) passed by the Rent Controller, Charkhi Dadri in rent petition No.14 dated 04.09.2017 titled as ‘Lala Mathura Prasad Trust (Regd.) Vs. Sh. Rajiv Kumar and others’, whereby an application under Order XV Rule 5 of the CPC, filed at the instance of petitioner-landlord (hereinafter referred to as ‘the Trust’), was dismissed.

3. Briefly stating, claiming itself to be landlord, the petitioner (the Trust) filed an eviction petition against respondents inter alia on the ground of arrears of rent w.e.f. June-2016 till September-2017 @ Rs.5,000/- per month. Upon notice, the respondent-tenants filed their written statements, disputing the rate of rent. Vide order dated 04.10.2017, the Rent Controller passed an order as regards the assessment of provisional rent @ Rs.1,200/- per month w.e.f. June-2016 till August-2017. The arrears as per the aforementioned order were tendered by the respondent-tenants on the same day.

4. Later, faced with the situation, wherein the respondent-tenants failed to deposit the arrears of rent as regards the further period i.e. with effect from September-2017 onwards, the petitioner-landlord moved an application under Order XV Rule 5 of the CPC praying for striking off their defence. The aforesaid application was filed on 02.11.2019. The prayer made therein was opposed at the instance of respondent-tenants having filed their reply dated 06.01.2020. The aforementioned application came to be dismissed vide order dated 28.01.2020 passed by the Rent Controller, Charkhi Dadri.

5. Much later, in a separate but related development, the respondent-tenants filed an application invoking Section 6-A of the Haryana Urban (Control of Rent & Eviction) Act, 1979 (hereinafter referred to as ‘1973 Act’), seeking permission to deposit of arrears of rent upto 29 months i.e. from September-2017 till Jan-2020 @ Rs.1200/- per month along with interest @ 8% per annum. Notice of the said application was served upon the petitioner-landlord and a detailed reply opposing the prayer made in the said application was filed. At the first instance the Rent Controller-cum-Additional Civil Judge (Sr. Divn.), Charkhi Dadri, passed an order dated 17.02.2020, which is reproduced hereunder:-

“Fresh power of attorney is filed on behalf of respondent by learned counsel Shri Satyavan Kudawal. Further, reply to the application is also filed. At this stage, the present application is objected on the ground that a separate eviction petition is pending between both the parties, wherein, non-payment of rent is one of the grounds and after assessment of rent upon first appearance of the respondent, a rent amount for the duration of 29 months became due in that case and hence, as per specific provisions contained under Order 15 Rule 5 of CPC no separate proceedings can take place for the payment of due rent amount qua which a separate eviction petition is already pending, rather, it is mandatory for the present applicant to make the payment in that eviction petition and in case if he fails, the same should follow striking off his defence. Hence, just to defeat the already accrued right of the respondent in that earlier eviction petition, the present application has been moved. The present application is in fact not maintainable in the eyes of law. In view of aforesaid submissions, now to come up on 02.03.2020 for filing the rejoinder to the aforesaid objections/reply and for arguments on the question of maintainability.”.

6. Later vide order dated 04.03.2020, the Court allowed the application/petition under Section 6-A of 1973 Act, filed at the instance of respondent-tenants, th