Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. The present suit has been filed by the plaintiff-appellant claiming her capacity as the lessor after having purchased the suit property from its erstwhile owner. According to the plaintiff, the defendant has been the lessee in the suit shop and his lease was determined; and while alleging the rent to be due and having not been paid despite demand, the plaintiff has filed this suit for eviction and recovery of arrears of rent and damages for use and occupation. Having regard to the plaint averments, the suit in question is clearly the one to which the provisions of Order XV Rule 5 CPC are applicable. 11.1. Though the aforesaid decisions in cases of Miss Santosh Mehta, Smt. Kamla Devi and Manik Lal Majumdar related to the respective rent control legislations applicable to the respective jurisdictions, which may not be of direct application to the present case but and yet, the relevant propositions to be culled out for the present purpose are that any such provision depriving the tenant of defence because of default in payment of the due amount of rent/arrears have been construed liberally; and the expression ‘may’ in regard to the power of the Court to strike out defence has been construed as directory and not mandatory. In other words, the Courts have leaned in favour of not assigning a mandatory character to such provisions of drastic consequence and have held that a discretion is indeed reserved with the Court concerned whether to penalise the tenant or not. However, and even while reserving such discretion, this Court has recognised the use of such discretion ASHA RANI GUPTA v. SRI VINEET KUMAR [DINESH MAHESHWARI, J.] against the defendant-tenant in case of wilful failure or deliberate default or volitional non-performance. This Court has also explained the principles in different expressions by observing that if the mood of defiance or gross neglect is discerned, the tenant may forfeit his right to be heard in defence. The sum and substance of the matter is that the power to strike off defence is considered to be discretionary, which is to be exercised with circumspection but, relaxation is reserved for a bonafide tenant like those in the cases of Miss Santosh Mehta and Smt. Kamla Devi (supra)and not as a matter of course. The case of Bimal Chand Jain(supra) directly related with Order XV Rule 5 CPC where the tenant had deposited the arrears admitted to be due but, failed to make regular deposits of monthly rent and failed to submit representation in terms of sub-rule (2) of Rule 5 of Order XV. The defence was struck off in that matter with the Trial Court and the High Court taking the said provisions of Order XV Rule 5 CPC as being mandatory in character. Such an approach was not approved by this Court while indicating the reserve of discretion in not striking off defence if, on the facts and circumstances existing on record, there be good reason for not doing so. The common thread running through the aforesaid decisions of this Court is that the power to strike off the defence is held to be a matter of discretion where, despite default, defence may not be struck off, for some good and adequate reason. 11.2. The question of good and adequate reason for not striking off the defence despite default would directly relate with such facts, factors and circumstances where full and punctual compliance had not been made for any bonafide cause, as contradistinguished from an approach of defiance or volitional/elective non-performance.
12. Reverting to the provisions under consideration, it is noticed that while the first part of sub-rule (1) of Rule 5 of Order XV CPC requires deposit of the admitted due amount of rent together with interest, the second part thereof mandates that whether or not the tenant admits the amount to be due, he has to, throughout the continuation of the suit, regularly deposit monthly amount due within a week from the date of its accrual. Read as a whole, it is but clear that Order XV Rule 5 CPC embodies the fundamental principle that there is no holidaying for a tenant in payment of rent or damages for use and occupation, whether the lease is subsisting or it has been determined. The only basic requirement in the suit of the nature envisaged by Order XV Rule 5 CPC is the character of defendant as being the lessee/tenant in the suit premises. Viewed from this angle, we are not inclined to accept the line of thought in some of the decisions of the High Court that in every case of denial of relationship of landlord and tenant, the defendant in suit for eviction and recovery of rent/damages could enjoy holidays as regards payment of rent. 12.1. For what has been discussed hereinabove, the decision of the High Court in Ladly Prasad (supra) does not require much dilation when it remains indisputable that it is not always obligatory on the Court to strike off the defence. However, the said decision cannot be read to mean that despite default of the tenant in payment of rent, the defence has to be permitted irrespective of its baselessness. The decision in Kunwar Baldevji (supra), again, would have no application to the facts of the present case. Herein, the defendant-respondent has not only omitted to deposit the rent on the first date of the hearing but, has also omitted to deposit the accrued rent during the pendency of the suit.
13. In a suit of the present nature, where the defendant otherwise has not denied his status as being the lessee, it was rather imperative for him to have scrupulously complied with the requirements of law and to have deposited the arrears of rent due together with interest on or before the first date of hearing and in any case, as per the second part of sub- rule (1) of Rule 5 of Order XV CPC, he was under the specific obligation to make regular deposit of the monthly amount due, whether he was admitting any such dues or not.
14. In the context of the proposition of denial of title of the plaintiff and denial of relationship of landlord and tenant between the plaintiff and defendant, we may also observe that such a denial simpliciter does not and cannot absolve the lessee/tenant to deposit the due amount of rent/damages for use and occupation, unless he could show having made such payment in a lawful and bonafide manner. Of course, the question of bonafide is a question of fact, to be determined in every case with reference to its facts but, it cannot be laid down as a general proposition that by merely denying the title of plaintiff or relationship of landlord- tenant/lessor-lessee, a defendant of the suit of the present nature could enjoy the property during the pendency of the suit without depositing the amount of rent/damages. ASHA RANI GUPTA v. SRI VINEET KUMAR [DINESH MAHESHWARI, J.]
15. Taking the facts of the present case, it is at once clear that the defendant-respondent, by his assertions and conduct, has left nothing to doubt that he has been steadfast in not making payment of rent/damages, despite being lessee of the suit shop. The present one has clearly been the case of volitional non-performance with nothing left to guess about the defendant’s mood of defiance. Nothing of any fact or any circumstance is existing on record to find even a remote reason for extending any latitude or relaxation in operation of Order XV Rule 5 CPC to the present case. It shall be apposite at this juncture to also observe that the contentions on behalf of the defendant-respondent to the effect that he had made payment of rent to the alleged erstwhile landlord Smt. Sudha Sharma and contra submissions on behalf of the appellant that even in the year 1990, the defendant-respondent admitted the said Shri Rajiv Kant Sharma as the owner of the property as also the factors co-related with these submissions, do not call for adjudication in this appeal. This is for two simple reasons: One, that so far as the fact of volitional non- performance by the defendant-respondent is concerned, with no cogent evidence of lawful payment of rent, the findings of fact by the Trial Court and the Revisional Court against the defendant-respondent stand final and have not been disturbed even by the High Court. There appears no reason for this Court to enter into any factual inquiry as regards payment of rent to Smt. Sudha Sharma or otherwise, now in this appeal. Secondly, so far as any affidavit filed by the defendant-respondent in the year 1990, allegedly admitting Shri Rajiv Kant Sharma as owner of property is concerned, it may be a matter of adjudication by the Trial Court but would not be a matter of consideration in this appeal. Suffice it to observe that the present one is a case very near and akin to that of Hisamul Islam Siddiqui (supra)wherein, the learned Single Judge of the same High Court has approved the order striking off the defence after finding want of deposit of the amount of rent, despite the defendant having not denied his status as tenant.
16. In the totality of facts and circumstances, we are clearly of the view that there was absolutely no reason for the High Court to have interfered in the present case, where the Trial Court had struck off the defence after finding that there was no evidence on record to show the payment or deposit of rent in favour of the plaintiff by the defendant- respondent. The Revisional Court had also approved the order of the Trial Court on relevant considerations. Even the High Court did not find the pleas taken by the defendant-respondent to be of bonafide character, particularly when survey number of the shop let out to him was clearly stated in the sale deed executed in favour of the plaintiff. We find it rather intriguing that, despite having not found any cogent reason for which discretion under Rule 5 of Order XV CPC could have been exercised in favour of the defendant-respondent, the High Court, in the last line of paragraph 45 of the order impugned, abruptly stated its conclusion that: ‘yet the defendant/tenant deserves some indulgence’.
17. With respect, the said conclusion of the High Court could only be said to be an assumptive one, being not supported by any reason. In paragraph 44, of course, the High Court observed with reference to the decisions of this Court that the discretionary power must be exercised with great circumspection but, such enunciation by this Court cannot be read to mean that whatever may be the fault and want of bonafide in the defendant/tenant, he would be readily given the so-called ‘indulgence’ of not striking off defence. Such an approach is neither envisaged by the statutory provisions nor by the referred decisions. In fact, such an approach would simply render the relevant provisions of law rather nugatory. The expected circumspection would require the Court to be cautious of all the relevant facts and the material on record and not to strike off the defence as a matter of routine. However, when a case of the present nature is before the Court, disclosing deliberate defiance and volitional/elective non-performance, the consequence of law remains inevitable, that the defence of such a defendant would be struck off.
18. For what has been discussed hereinabove, the impugned order as passed by the High Court cannot be approved and is required to be set aside.
19. The submissions made on behalf of the defendant-respondent that he had deposited the due rent from 10.05.2010 to 10.11.2018 and he has been further making regular deposits do not take his case any further. The defendant-respondent has made such deposits only pursuant to the order of the High Court. The said order, being not in conformity with the law applicable and with the record of this case, is required to be set aside. In any event, any deposit made under or pursuant to the said order cannot wipe out the default already committed by the defendant-respondent. On the contrary, with setting aside of ASHA RANI GUPTA v. SRI VINEET KUMAR [DINESH MAHESHWARI, J.] the said order of the High Court, the order of the Trial Court shall stand revived. Simply put, the deposits belatedly made, pursuant only to the unsustainable order of the High Court, do not enure to the benefit of the defendant-respondent.
20. Before concluding on this matter, a few peripheral aspects may also be indicated. The petition seeking special leave to appeal in the present case was entertained on 28.01.2019 when this Court, while issuing notice, stayed the operation and implementation of the impugned order of the High Court. Obviously, the impugned order dated 02.11.2018 as passed by the High Court stood eclipsed under and by virtue of the stay order of this Court. Consequently, the suit was required to proceed with the order of the Trial Court dated 01.03.2017 striking off the defence of the defendant continuing in operation. The facts have been placed before us to the effect that the plaintiff sought expeditious disposal of the suit and in that regard, also filed a petition bearing No. 2810 of 2020 before the High Court, which was disposed of on 29.09.2020 with directions to the Trial Court to decide the said suit expeditiously and preferably within two years from the date of production of the copy of the order without granting any unnecessary adjournment to either of the parties. Thereafter, the Trial Court considered and granted an application moved by the plaintiff to amend the plaint, so as to seek eviction of the defendant on the ground of denial of title. The said amendment was allowed on 18.02.2021. As per the material placed on record, the additional written statement as filed by the defendant was taken on record on 21.04.2022 and the matter was placed for plaintiff’s evidence.
21. Having taken note of the subsequent events after passing of the impugned order by the High Court, suffice it to say that with the impugned order of the High Court being set aside and that of the Trial Court dated 01.03.2017 being restored by this judgment, it would be expected of the Trial Court to take note of the fact that the suit filed way back in the year 2011 has remained pending yet and is required to be assigned a reasonable priority for expeditious disposal. The order passed by the High Court on 29.09.2020 is also to be kept in view by the Trial Court.
22. Accordingly, and in view of the above, this appeal succeeds and is allowed; the impugned order dated 02.11.2018 is set aside with the result that the order dated 01.03.2017 passed by the Trial Court stands restored. The Trial Court shall be expected to proceed with the matter while keeping in view the observations foregoing.
23. Having regard to the circumstances of the case, there shall be no order as to costs of this appeal. Nidhi Jain Appeal allowed. (Assisted by : Shashwat Jain, LCRA) ASHA RANI GUPTA v. SRI VINEET KUMAR [DINESH MAHESHWARI, J.]