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Allahbad High Court
K.C.AGRAWAL
Ishwari Prasad - Appellant
Versus
Rajni Devi - Respondent
Decided On : 02/09/1979
ORDER XV RULE 5, CIVIL PROCEDURE CODE - INTERPRETATION - SECURITY FOR EXTENSION OF TIME - MEANING OF THE WORD "ON" - REPRESENTATION FOR CONDONATION OF DEFAULT - FURNISHING OF SECURITY - TIME - WHETHER SIMULTANEOUS WITH FILING OF REPRESENTATION.
Fact of the Case:
The plaintiff filed a suit for ejectment, recovery of arrears of rent, and damages for use and occupation against the defendants. The suit was transferred to the Judge Small Cause Court side after the enforcement of U.P. Act No. 13 of 1972. The defendants had deposited rent under Section 7-C of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but the plaintiff contended that the defense should be struck off for non-deposit of rent and damages as required under Order XV Rule 5, Civil Procedure Code (CPC).
Finding of the Court:
The Judge, Small Cause Court, held that the deposit made under Section 7-C for the period till 30th September 1972 was justified, but the deposit should have been made in the present suit after the enforcement of U.P. Act No. 37 of 1972. The court found that the defendants had reasonable cause for not depositing the rent and damages for the months of May to July 1974 and accepted their representation for condonation of default. However, the court rejected the representation for the period from 30th September 1972 to April 1974 on the ground that the rent for this period had not been deposited in the present suit despite the plaintiff's application for striking off the defense.
Issues: 1. Whether the court erred in not accepting the representation of the defendants for the period from 30th September 1972 to April 1974. 2. Whether the security for extension of time under Order XV Rule 5, CPC, must be furnished simultaneously with the filing of the representation.
Ratio Decidendi: 1. The court held that the word "on" in Order XV Rule 5, CPC, does not mean simultaneous. The purpose of demanding security is to secure the interest of the landlord and ensure that the tenant demonstrates sincerity by giving security. The court has the discretion to condone the default in not complying with the condition mentioned in Order XV Rule 5, CPC, provided sufficient cause for the entire delay is shown to its satisfaction. 2. The court held that the security for extension of time under Order XV Rule 5, CPC, need not be furnished simultaneously with the filing of the representation. The requirement is that the security must be deposited before the court grants an extension of time for depositing the amount.
Final Decision: The revision petition was allowed. The judgments and orders of the lower courts were set aside. The Judge, Small Cause Court, was directed to accept the representation of the defendants and grant them one month's time from the date of receipt of a copy of the judgment for furnishing security and further time for depositing the rent as he may think proper.
2. The Judge, Small Cause Court held that the deposit made under Section 7-C for the period till 30th Sept., 1972 was justified but found that after the enforcement of U.P. Act No. 37 of 1972, the deposit should have been made in the present suit and, as such, the rent deposited in the proceedings under Section 7-C could not save the consequence of O.XV R.5, C.P.C. In the revision the order of the Judge, Small Cause Court, was maintained. Hence this revision.
3. Before dealing with the points urged, it will be helpful to bifurcate the various periods for which the rent and damages had to be paid by the defendants. It may be noted here that under O.XV, R.5, C.P.C. a defendant is liable to deposit the entire amount due. The periods can be divided as follows :-
From 1967 to 30-9-1972-
deposited u/s. 7-C
1st Oct. 72 to April, 1974-
deposited u/s. 7-C
1st May, 74 to July, 1974-
deposited in present suit on 1-8-1974.
Aug. and Sept., 1874-
deposited on 5-9-74 and on 1-10-1974 respectively in the present suit.
4. It may be recapitulated here that the defence had been struck off on the ground of non-deposit of damages from 1st Oct., 1972 to April, 1974. For the period before 30th Sept., 1972, the finding of the Judge Small Causes Court was that the defendants were justified in depositing the rent under S.7-C and, as such, they could not be called upon to deposit the same in the present suit. The period from 1st Oct., 1972 to April, 1974, if excluded for the time being, the period left is from May, 1974 to Sept., 1974. The rent for the months of Aug. and Sept., 1974 had been deposited in time. So far as the rent for the months May to July, 1974 is concerned, the deposit was made on 1-10-1974. While making the deposit on 1-10-1974 the defendants had made a representation for condonation of default or delay on the ground that since they had made the deposits in the proceedings under Section 7-C under a legal advice, the bona fide mistake could be condoned. This had been accepted by the Judge Small Causes. He held that the defendants had reasonable cause for not having deposited the rent damages for the months May, 1974 to July, 1974. To this extent the representation was accepted.
5. The Judge, Small Causes, however, did not accept the representation for the period from 30th Sept., 1972 to April, 1974. The ground given was that as the rent for this period had not been deposited in the present suit despite moving of an application by the plaintiff for striking off the defence, the delay could not be condoned.
6. The question, therefore, is only whether the court committed an error in not accepting the representation of the defendants also for the period for 30th Sept., 1972, to April, 1974. Negativing the arguments of the defendants learned counsel the Additional District Judge found that as the representation had not
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