Supreme Court: The Division Bench of Dinesh Maheshwari* and Aniruddha Bose, JJ., held that in cases disclosing deliberate defiance and elective non-performance on the part of the tenant, the consequence of law remains inevitable, that the defence of such a defendant would be struck off.
Reversing the impugned order of the Allahabad High Court, the Court expressed,
“In the context of the proposition of denial of relationship of landlord and tenant between the plaintiff and defendant, such a denial simpliciter does not and cannot absolve the tenant of liability to deposit the due rent/damages for use and occupation, unless he could show having made such payment in a lawful and bonafide manner.”
The instant appeal deals with procedural technicalities of Order XV Rule 5 CPC which arose in a suit for eviction and recovery of arrears of rent as also damages for use and occupation.
The plaintiff-appellant contended that she is the owner of the suit shop as she had purchased it from its erstwhile owner by sale deed dated 10-05-2010 and that the defendant-respondent is a tenant since the time of its erstwhile owner. She alleged that the respondent is a chronic defaulter in payment of rent and taxes; and despite information of the sale deed and despite demand made by her, the rent along with taxes had not been paid to her since the month of May 2010.
On the contrary, the respondent denied the relationship of landlord and tenant between the plaintiff and himself. Though he did not deny his status as tenant in
the suit shop, the defendant asserted that the alleged sale deed dated is illegal and void.
The plaintiff-appellant had filed an application under Order XV Rule 5 CPC, praying that the defence of the defendant-respondent be struck off, since he had not deposited any rent and no evidence was adduced by him to establish any payment of rent. Contesting the application, the defendant-respondent contended that the provisions of Order XV Rule 5 CPC are applicable only to a case where there is admission as to landlord-tenant relationship; however, in the present case, he had clearly averred that there was no relationship of landlord and tenant between the plaintiff and defendant.
Contrary Findings of the Courts Below
The Trial Court stroke off the defence of the defendant-respondent for failure to pay or deposit the due rent, holding that even if the tenant denied the relationship of landlord and tenant, the application under Order XV Rule 5 CPC was maintainable. The order of the Trial Court was affirmed by the Revisional Court.
However, in appeal, the High Court reversed the order of the Trial Court by holding that even though the defendant-respondent did not pay his dues, he was entitled to some indulgence.
Observations and Analysis
Order XV Rule 5: Legislative Intent and Judicial Pronouncements
As Order XV Rule 5 CPC, the consequence of default in making deposits is that the Court may strike off the tenant’s defence. However, before making an order striking off defence, the Court is to consider the representation of the defendant, if made within 10 days of the first hearing or within 10 days of the expiry of one week from the date of accrual of monthly amount.
The Court, after considering various judicial pronouncements in this regard, including Santosh Mehta v. Om Prakash, (1980) 3 SCC 610 and Kamla Devi v. Vasdev, (1995) 1 SCC 356, held that the sum and substance of the matter is that the power to strike off defence is discretionary, which is to be exercised with circumspection but, relaxation is reserved for a bonafide tenant and not as a matter of course. The Court expressed,
“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.”
Elaborating on the question of good and adequate reason, the Court stated that that 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.
The Court noted that 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. Hence, the Court remarked,
“We are not inclined to accept 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.”
The Court opined that by merely denying the title of plaintiff or relationship of landlord-tenant/lessor-lessee, a defendant of the suit of the present nature cannot enjoy the property during the pendency of the suit without depositing the rent/damages.
Observing 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 Court held that his conduct amounted to volitional non-performance and defiance.
Hence, the Court held that there was no reason for the High Court to have interfered in the concurrent findings of lower Courts. The Court remarked,
“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’.”
Effects of Subsequent Deposits Pursuant to Impugned Order
Regarding the submissions of the defendant-respondent that he had deposited the due rent from 10-05-2010 to 10-11-2018 and he had been further making regular deposits, the Court held that such deposits made only pursuant to the order of the High Court cannot wipe out the default already committed by him.
The Court said that the deposits belatedly made, pursuant only to the unsustainable order of the High Court, do not ensure to the benefit of the defendant-respondent.
In the light of the above, the impugned order of the High Court was set aside and the order of the Trial Court was restored. The Trial Court was directed to take note of the fact that the suit filed way back in the year 2011 is still pending therefore, the same should be assigned reasonable priority for expeditious disposal.
[Asha Rani Gupta v. Vineet Kumar, 2022 SCC OnLine SC 829, decided on 11-07-2022]
*Judgment by: Justice Dinesh Maheshwari
Kamini Sharma, Editorial Assistant has put this report together.