Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 2062

IN THE HIGH COURT OF ALLAHABAD
SARAL SRIVASTAVA, J.
Deepak Kumar Gupta and others - Appellants
Versus
Ramakant Dixit - Respondent
Civil Misc. Writ Petition No. 2178 of 2021
Decided on : 31-07-2024

Advocates Appeared:
For the Appellant : Manish Tandon
For the Respondent: Himanshu Raghav Pandey and Ram Kishore Pandey

The court held that excess rent payments negate claims of default, emphasizing judicial discretion in striking off defenses under Order XV Rule V of C.P.C.

Headnote:(A) Constitution of India - Article 227 - Eviction proceedings - Order XV Rule V of C.P.C. - Petitioners, tenants, challenged the order striking off their defense for alleged default in rent payment - The court found that the petitioners had deposited excess rent, thus no default occurred - The subordinate courts' orders were set aside, and the matter was remanded for expeditious resolution. (Paras 2, 29)

(B) Judicial Discretion - The power to strike off defense under Order XV Rule V is discretionary and should not be exercised mechanically; courts must consider the facts and circumstances of each case. (Paras 19, 23)

Facts of the case:
The landlord filed for eviction due to alleged rent default, claiming arrears for 340 months. The petitioners contended they had overpaid rent and thus should not be penalized.

Findings of Court:
The court determined that the petitioners had indeed overpaid and thus had not defaulted in rent payments.

Issues: The main issue was whether the excess rent deposited could be adjusted against the monthly rent due.

Ratio Decidendi: The court ruled that the excess payment negated the claim of default, emphasizing the discretionary nature of striking off defenses under Order XV Rule V.

Result: Writ petition allowed, subordinate courts' orders set aside.

JUDGMENT :

Hon'ble Saral Srivastava, J.-Heard Sri Manish Tandon, learned counsel for the petitioners, and Sri Himanshu Raghav Pandey, learned counsel for the respondent.

2. The petitioners are tenants and have filed the present petition under Article 227 of the Constitution of India assailing the order dated 20.2.2019 passed by the Judge Small Causes Court, Kanpur Nagar in S.C.C. Case No. 225 of 2009 by which he has allowed the application 30-Ga of the respondent/landlord and struck off the defence of the petitioners and order dated 15.2.2021 passed by the Additional District Judge/F.T.C. (created by 14th Finance Commission), Kanpur Nagar dismissing the S.C.C. Revision No. 24 of 2019 preferred by the petitioners against the order dated 20.2.2019.

3. The facts in brief are that respondent/landlord instituted S.C.C. Case No. 225 of 2009 for eviction of the petitioners from house No. 15/280 Civil Lines, Kanpur Nagar (hereinafter referred to as 'suit property') on the ground of default of payment in rent. In the said case, respondent/landlord filed an application 30-Ga under Order XV Rule V of C.P.C. contending inter alia that petitioners have defaulted in payment of rent due in each month, therefore, the defence of the petitioners be struck off.

4. The petitioners filed a reply to the application 30-Ga contending inter alia that petitioners have not defaulted in payment of rent and in fact, they have made excess payment of rent, therefore, the amount paid alongwith 9% interest in excess is liable to be adjusted towards monthly payment. It is pertinent to note that petitioners have deposited Rs. 8675/- by tender 35-Ga on 27.7.2010 and had filed a written statement on 28.7.2010.

5. The Trial Court by order dated 24.11.2012 rejected the application 30-Ga of the respondent by recording a finding that petitioners had deposited the excess amount under Order XV Rule V of C.P.C., therefore, the amount which has been deposited in excess is liable to be adjusted towards monthly rent.

6. Against the order dated 24.11.2012, the respondent/landlord preferred S.C.C. Revision No. 1 of 2013 which was allowed by the Revisional Court by order dated 28.11.2013 by recording a finding that the Trial Court has failed to consider the Explanation-3 to Order XV Rule V of C.P.C. and accordingly, remanded the matter to the Trial Court to decide the application 30-Ga afresh.

7. After remand, the Trial Court by order 20.2.2019 allowed the application 30-Ga of the respondent holding that since petitioners have defaulted in payment of monthly rent and did not file any application seeking leave of the Court to deposit the rent, therefore, petitioners have defaulted in payment of rent. Consequently, the Trial Court found that the petitioners had failed to comply with the requirement of Order XV Rule V of C.P.C. The Trial Court struck off the defence of the petitioners and allowed the application 30-Ga of the respondent.

8. The petitioners, thereafter, preferred S.C.C. Revision No. 24 of 2019 which was also dismissed by the Revisional Court by order dated 15.2.2021 by upholding the order of the Trial Court dated 20.2.2019.

9. Challenging the aforesaid order, learned counsel for the petitioners has contended that the admitted rent of the suit property is Rs. 16/- per month, and as per the plaint case, the monthly rent was due for the period from 1.1.1980 to 30.4.2009 i.e. about 340 months rent, and the total rent for the said period comes to Rs. 5,440/-. It is contended that the petitioners have already deposited Rs. 8675/- on 27.7.2010, therefore, the rent deposited by the petitioners is more than the actual rent/amount that they were supposed to deposit on the first date of hearing as contemplated under Order XV Rule V of C.P.C.

10. It is further submitted that the excess amount is to be adjusted towards monthly rent and if that is adjusted, there is no delay or default in payment of monthly rent. Accordingly, it is submitted that the subordinate Courts have committed a m