- (1.) A learned Judge of this Court after noticing that there was an apparent conflict in the view taken by this Court in Basant Kumar Chauhan Vs. VIIth A.D.J. 1994 (1) ARC 107 and Pawan Kumar Vs. Ram Saran 1999 (2) ACJ 1276 with that of the view taken by this Court in Habiburrahman Vs. District Judge & Ors,. 2000 (1) ARC 4 and Ratan Bhushan Shukla Vs. ADJ 1989 (2) ARC 54 has referred the following question for decision by a larger Bench. " Whether the deposit made under Section 30(1) of U.P. Act No. 13 of 1972 after the date of service of summons of a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purpose of deciding the question whether the defence should or should not be struck off under Order XV Rule 5 C.P.C.?"
(2.) This writ petition has been filed for quashing the order dated 22nd March, 1999 passed by the Judge, Small Causes Court, Allahabad by which the application filed by the landlord for striking off the defence of the petitioner- tenant was allowed and the order dated 22nd August, 2001 passed by the Additional District Judge, Allahabad by which the Revision filed by the tenant against the aforesaid order dated 22nd March, 1999 was dismissed. The landlord-respondent nos. 3 and 4 filed a suit on 3rd January, 1997 in the court of Judge, Small Causes being Suit No. 1 of 1997 for giving vacant possession of the premises and for a decree for arrears of rent and cost of notice as the petitioner-tenant had committed default in payment of rent from March, 1994 and inspite of the notice dated 7th October, 1996 terminating the tenancy and demanding arrears of rent, the tenant did not pay the arrears and nor did he vacate the premises. On 13th May, 1997 the Judge, Small Causes Court directed that the matter should proceed ex-parte but the tenant moved an application for recalling the aforesaid order which application was allowed on 28th August, 1997 with a direction to the tenant to file his written statement. The written statement was thereafter filed on 2nd February, 1999 mentioning therein that the tenant had never committed default in payment of rent and that as the landlord had refused to accept the rent w.e.f. September, 1996, the amount was sent through money-order which too was refused by the landlord as a result of which an application under Section 30 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the ''Act') was filed which was registered as Miscellaneous Case No. 60 of 1997 and the rent was thereafter regularly deposited in the said Miscellaneous Case. On 2nd September, 1999 an application was moved on behalf of the landlord under Order XV Rule 5 of the Code of Civil Procedure (hereinafter referred to as ''CPC') for striking off the defence of the tenant as the tenant had not only failed to deposit the entire arrears of rent but he was also not regularly depositing the monthly amount due during the continuation of the suit as was required under Order XV Rule 5 CPC. An objection was filed on behalf of the tenant to the aforesaid application pointing out that he had been depositing the rent in Miscellaneous Case No. 60 of 1997 filed under Section 30 of the Act, which amount could be withdrawn by the landlord to which the tenant had no objection.
(3.) The learned Judge, Small Causes Court, Allahabad by his order dated 22nd March, 1999 allowed the application filed by the landlord and ordered that the defence should be struck off on the ground that the amount deposited under Section 30 of the Act in the Miscellaneous Case could not be considered for the purposes of Order XV Rule 5 CPC. The Revision filed by the tenant against the aforesaid order was also dismissed by the order dated 22nd March, 1999 holding that even after 7th July, 1997 when the tenant had put his appearance in the suit, the monthly amount was deposited not in the said Court but in Miscellaneous Case No. 60 of 1997 which could not have been taken into consideration for the purposes of Order XV Rule 5 CPC. The question that has been referred to us is whether the deposit made under Section 30 (1) of the Act after the date of service of summons in a civil suit for arrears of rent can be taken into consideration for computing the deposit for the purposes of deciding the question whether the defence should or should not struck off under Order XV Rule 5 CPC. In order to appreciate the controversy it would be necessary to place the relevant provisions of Sections 20 and 30 of the Act as also the provisions of Order XV Rule 5 CPC as applicable to the State of U.P. The same are as follows:- Section 20 (1). Bar of suit for eviction of tenant except on specified grounds. - (1) Save as provided in sub-section (2), no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner: ..................... (2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely: (a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand: .............. (4) In any suit for eviction on the ground mentioned in clause (a) of sub-section (2), if at the first hearing of the suit the tenant unconditionally pays or tenders to the landlord or deposits in Court the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground: ..................... ..................... (6) Any amount deposited by the tenant under sub-section (4) or under Rule 5 of Order XV of the First Schedule to the Code of Civil Procedure, 1908, shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suits. Section 30. Deposit of rent in court in certain circumstances.- If any person claiming to be a tenant of a building tenders any amount as rent in respect of the building to its alleged landlord and the alleged landlord refuses to accept the same then the former may deposit such amount in the prescribed manner and continue to deposit any rent which he alleges to be due for any subsequent period in respect of such building until the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept it. (2) Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may likewise deposit the rent stating the circumstances under which such deposit is made and may, until such doubt has been removed or such dispute has been settled by the decision of any competent court or by settlement between the parties, continue to deposit the rent that may subsequently become due in respect of such building. (3) The deposit referred to in sub-section (1), or sub-section (2), shall be made in the Court of the Munsif having jurisdiction. (4) On any deposit being made under sub-section (1), the Court shall cause a notice of the deposit to be served on the alleged landlord, and the amount of deposit may be withdrawn by that person on application made by him to the court in that behalf. (5) On a deposit being made under sub-section (2), the court shall cause notice of the deposit to be served on the person or persons concerned and hold the amount of the deposit for the benefit of the person who may be found entitled to it by any competent court or by a settlement between the parties, and the same shall be payable to such person. (6) In respect of a deposit made as aforesaid, it shall be deemed that the person depositing it has paid it on the date of such deposit to the person in whose favour it is deposited in the case referred to in sub-section (1) or to the landlord in the case referred to in sub-section (2). Order XV Rule 5 CPC Striking off defence for failure to deposit admitted rent, etc.-(1) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendant shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making the deposit of the entire amount admitted by him to be due or the monthly amount due as aforesaid, the Court may, subject to the provisions of sub-rule (2), strike off his defence. Explanation 1.- The expression "first hearing" means the date for filing written statement for hearing mentioned in the summons or where more than one of such dates are mentioned, the last of the dates mentioned. Explanation 2.- The expression "entire amount admitted by him to be due" means the entire gross amount, whether as rent or compensation for use and occupation, calculated at the admitted rate of rent for the admitted period of arrears after making no other deduction except the taxes, if any, paid to a local authority in respect of the building on lessor's account and the amount, if any, paid to the lessor acknowledged by the lessor in writing signed by him and the amount, if any, deposited in any Court under section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Explanation 3.- (1) The expression "monthly amount due" means the amount due every month, whether as rent or compensation for use and occupation at the admitted rate of rent, after making no other deduction except the taxes, if any, paid to a local authority, in respect of the building on lessor's account. (2) Before making an order for striking off defence, the Court may consider any representation made by the defendant in that behalf provided such representation is made within 10 days of the first hearing or, of the expiry of the week referred to in sub-section (1), as the case may be. (3) The amount deposited under this rule may at any time be withdrawn by the plaintiff: Provided that such withdrawal shall not have the effect of prejudicing any claim by the plaintiff disputing the correctness of the amount deposited: Provided further that if the amount deposited includes any sums claimed by the depositor to be deductible on any account, the Court may require the plaintiff to furnish the security for such sum before he is allowed to withdraw the same.";