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IN THE HIGH COURT OF ALLAHABAD
Rajnish Kumar, J.
Sanjeev Kumar Sibbal - Appellant
Vs.
Pramod Kumar Tiwari - Opposite Party
S.C.C. REVISION No. - 5 of 2020
Decided On : 08-02-2021
Provincial Small Causes Court Act, 1887 – Section 25 – Civil Procedure Code, 1908 – Order-8, Rule10, Order-15, Rule-5 – Condonation of delay – Instant revision has been filed under Section 25 of the Provincial Small Causes Court Act, 1887 against the order passed by the Additional District Judge / Special Judge/ Prevention of Corruption Act, 5th, Lucknow in SCC Suit; Pramod Kumar Tiwari Vs. Sanjeev Kumar Sibbal by means of which the application no.C-22 of the revisionist/defendant for condonation of delay in filing written statement has been rejected and the application of the opposite party / plaintiff under Order-8, Rule10 of Civil Procedure Code and application under Order-15, Rule-5 of C.P.C. have been allowed and defence of revisionist has been struck off.
Finding of the court: "first hearing of a suit" would be the day on which court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken. – The Hon'ble Apex Court in the case of Sham Lal (Dead) By Lrs Vs. Atme Nand Jain Sabha (Regd.); (1987) 1 SCC 222, held that the words the 'first day of hearing' as meaning not the day for the return of the summons or the returnable day, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence taken. – Court is of the view that the impugned order is liable to be set aside with an opportunity to the revisionist to submit explanation for delay in support of application for condonation of delay within a period of two weeks from the date of this order before the trial court and partly allow the revision with a cost to be paid by the appellant and direction to the trial court to decide the applications afresh in accordance with law. – Impugned order is hereby set-aside.
Result: – Revision Partly Allowed
JUDGMENT :
Rajnish Kumar, J.
1. Heard Sri Vivek Kumar Rai, learned counsel for the revisionist and Sri Rakesh Pandey, learned counsel for the respondent.
2. The instant revision has been filed under Section 25 of the Provincial Small Causes Court Act, 1887 against the order dated 07.01.2020 passed by the Additional District Judge / Special Judge/ Prevention of Corruption Act, 5th, Lucknow in SCC Suit No.42 of 2019; Pramod Kumar Tiwari Vs. Sanjeev Kumar Sibbal by means of which the application no.C-22 of the revisionist/defendant (here-in-after referred as revisionist) for condonation of delay in filing written statement has been rejected and the application of the opposite party / plaintiff (here-in-after referred as opposite party) under Order-8, Rule10 of Civil Procedure Code (here-in-after referred as C.P.C) and application under Order-15, Rule-5 of C.P.C. have been allowed and defence of revisionist has been struck off.
3. The brief facts of the case, for adjudication of instant revision, are that the opposite party and the revisionist had entered into an agreement for tenancy on 01.04.2018 in regard to shop No.B-80 situated at Sri Ram Tower, 13-Ashok Marg, Lucknow for a period w.e.f. 01.04.2018 to 28.02.2019 at a monthly rent of Rs.50,000/-per month. The opposite party has filed a suit for arrears of rent and ejectment. The suit was filed on 03.07.2019. The notices were issued fixing 08.08.2019 for written statement and disposal. The revisionist appeared on 08.08.219 and filed an application for permission to deposit the due rent. The revisionist was permitted to deposit the entire due rent till 31.08.2019 on his own risk. In pursuance thereof the revisionist deposited an amount of Rs.3,00,000/-towards the rent w.e.f. 01.03.2019 to 31.08.2019. Thereafter on application of the revisionist, with the permission of the trial court, the rent of September and October, 2019 was deposited on 24.12.2019. The revisionist again preferred an application on 03.01.2019 for permission to deposit the rent of November and December, 2019, which has not been disposed of till date.
4. In regard to filing of written statement it has been stated that the copy of the plaint alongwith documents was not served and after getting the copy of plaint, the written statement alongwith an application for condonation of delay was filed on 04.01.2020 marked as C-22. In the meantime, the opposite party had filed two applications; one application No.C-15 under Order-8, Rule-10 C.P.C. and another application No.C-16 under Order-15, Rule-5 C.P.C for striking of defence. The revisionist had filed the objections to the same thereafter the application nos.C-15, C-16 and C-22 have been considered and decided by means of the impugned order dated 07.01.2020. Being aggrieved the present revision has been filed.
5. Submission of learned counsel for the revisionist was that the revisionist had entered into a tenancy agreement with the opposite party for the shop in question. During the period of agreement, the opposite party had forcefully tried to evict the revisionist on 26.08.2018 therefore the revisionist has filed a suit for permanent injunction bearing Regular Suit No. 2001 of 2018. The revisionist had continuously paid the rent and the rent receipts were issued by the opposite party up to 01.02.2019 which have been annexed with the suit by the opposite party. The notice for termination of tenancy was not served on the revisionist. The suit was filed on 03.07.2019. On notice, the revisionist appeared on 08.08.2019 and on application of the revisionist and with the permission of the trial court revisionist had deposited Rs.3,00,000/-towards rent up 31.08.2019 on 01.09.2019. Thereafter he has again deposited the rent of September and October, 2019 on 24.12.2019 with the permission of court. The rent deposited by the revisionist has been withdrawn by the opposite party. He has also filed an application for depositing the rent of November and December, 2019 on 03.01.2020
A tenant denying rent is not required to deposit until the court adjudicates the issue of tenancy, as per Order XV Rule 5 of the Code of Civil Procedure.
Categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment.
Point of Law : Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the court may at any stage of the proceedings allow either party to alter or amend ....
Failure to regularly deposit admitted monthly rent under Order 15 Rule 5 CPC without timely representation constitutes deliberate defiance justifying striking off tenant's defence in eviction suit.
Strict compliance with the deposit requirements under Order XV Rule 5 CPC is mandatory for tenants in eviction suits, and inconsistent conduct may not entitle them to relief.
Point of Law : The provisions under Order XV Rule 5(2) provides a locus poenitentiae to the defaulting tenant to make a representation, which must be made within ten days of the first hearing or with....
Point of Law : It is undisputed that rent has not been deposited before court concerned there is no provision in law to grant any relief, but the only option is to strike off the defence as provided ....
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