Summary
A purchaser of a shop in Aligarh sued the sitting tenant for eviction and arrears in 2011. The tenant admitted being a tenant but denied the purchaser's title and any landlord-tenant relationship, and deposited no rent either at the first hearing or during the suit. The trial court struck off his defence under Order XV Rule 5 CPC as applicable in Uttar Pradesh, and the revisional court affirmed. The Allahabad High Court, under Article 227, set the orders aside, observing that the tenant's pleas appeared designed to protract the litigation yet he 'deserves some indulgence', and allowed him to deposit the arrears with interest. The Supreme Court restored the striking off. The power under Order XV Rule 5 is discretionary and to be exercised with circumspection, relaxation being reserved for a bona fide tenant;
Issues
- Whether a tenant who admits his tenancy but denies the plaintiff-purchaser's title and the landlord-tenant relationship is relieved of the obligation under Order XV Rule 5 CPC (U.P. amendment) to deposit the admitted arrears at the first hearing and the monthly amount during the suit.
- Whether the discretion not to strike off defence under Order XV Rule 5 may be exercised, as 'some indulgence', without recording any reason or finding of bona fides.
- Whether deposits made belatedly under the High Court's order can cure a default already committed.
Provisions considered
- Order XV Rule 5, Code of Civil Procedure, 1908 (as amended in Uttar Pradesh)In a suit by a lessor for eviction and rent after determination of the lease the defendant must deposit the admitted arrears with 9% interest at or before the first hearing and, whether or not he admits any amount due, regularly deposit the monthly amount throughout the suit; on default the court 'may' strike off the defence after considering any representation under sub-rule (2). The power is discretionary (Bimal Chand Jain) but relaxation requires good and adequate reason such as bona fide non-compliance, not defiance; the second limb applies irrespective of denial of the relationship. (¶¶ 9, 9.1, 11.1, 11.2, 12, 13, 14)
- Sections 106 and 109, Transfer of Property Act, 1882The purchaser served a notice under Section 106 which the tenant refused; by operation of Section 109 the purchaser became the landlord on transfer, so a tenant who did not deny his status as tenant could not withhold rent (Hisamul Islam Siddiqui approved as a case akin to the present one). (¶¶ 4.2, 10.6, 15)
- Section 15(7) and Section 13 respectively, Delhi Rent Control Act, 1958 and Tripura Buildings (Lease and Rent Control) Act, 1975Decisions under these rent laws (Santosh Mehta, Kamla Devi, Manik Lal Majumdar) construe the power to strike out defence as directory and to be exercised with circumspection, but recognise its use against wilful failure, deliberate default or volitional non-performance; they do not support indulgence as a matter of course. (¶¶ 10.1, 10.1.1, 10.1.2, 10.2, 11.1)
- Article 227, Constitution of IndiaThe High Court interfered with concurrent orders of the trial and revisional courts without finding the tenant's pleas bona fide and without any reason supporting its conclusion that he deserved indulgence; such an assumptive conclusion could not be approved. (¶¶ 5, 16, 17)
Held
- The common thread of the authorities is that the power to strike off defence is discretionary, to be exercised with circumspection and not mechanically, and that despite default the defence may be retained for good and adequate reason — where non-compliance was for a bona fide cause as distinct from defiance or elective non-performance. Relaxation is reserved for a bona fide tenant, not granted as a matter of course. (¶¶ 11.1, 11.2, 17)
- Read as a whole, Order XV Rule 5 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 subsists or has been determined; the only requirement is the defendant's character as lessee. The line of High Court decisions that denial of the landlord-tenant relationship lets the defendant stop paying rent was not accepted. A denial of the plaintiff's title or of the relationship does not by itself absolve the tenant from depositing rent unless he shows lawful and bona fide payment elsewhere, which is a question of fact. (¶¶ 12, 12.1, 13, 14)
- The tenant, admittedly a lessee of the shop, neither deposited rent at the first hearing nor during the suit, and the courts below found no cogent evidence of payment to the alleged erstwhile landlady; this was a case of volitional non-performance in a mood of defiance with nothing on record warranting latitude. The High Court itself did not find the pleas bona fide — the sale deed bore the shop's number — yet abruptly concluded that the tenant deserved some indulgence, a conclusion unsupported by any reason that would render the provision nugatory. (¶¶ 15, 16, 17)
- Deposits made only pursuant to the High Court's unsustainable order cannot wipe out the default already committed and do not enure to the tenant's benefit once that order is set aside and the trial court's order revived. The suit of 2011, since amended to add the ground of denial of title, should be given reasonable priority in keeping with the High Court's direction of 29.09.2020 for expeditious disposal. (¶¶ 19, 20, 21)
Result
Appeal allowed; the Allahabad High Court's order of 02.11.2018 set aside and the trial court's order of 01.03.2017 striking off the defendant's defence restored; the trial court to proceed expeditiously. No order as to costs.