M.C.Agarwal - (1.) -These two revision petitions under Section 115 of the Code of Civil Procedure arise out of similar case, suit No. 53 of 1984 pending in the Court of 9th Addl. District Judge, Meerut and relate to the Invocation of the provisions of Order XV, Rule 5 of the Code of Civil Procedure as amended in Uttar Pradesh.
(2.) THE said suit was filed by the landlords who are revisionist in the first mentioned revision petition and respondents in the second one. THE suit was for ejectment of the tenant on the ground of default. A claim for damages on account of damage caused to the building was also added but was subsequently deleted by amending the plaint. Order XV, Rule 5 requires that in any suit by a lessor for the eviction of a lessee after 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 centum 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. Sub-rule (2) requires that 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. THE amount admitted to be due has been defined in Explanation 2 to mean 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.................... The landlord moved an application before the court concerned praying that the defence of the tenant may be struck off for non-compliance with the provisions aforesaid. The said application was dismissed by an order dated 6th January, 1988 which the landlord challenges. The court found that the tenant had deposited the entire rent admitted by him to be due on 9.9.1987, i.e., before the first date of hearing which was 23.9.1987. Thereafter the tenant was continuing to deposit the rent and the deposits were made month to month either within a week or within the further period of ten days prescribed for representation. For these reasons, the court found no cause for striking off the defence. The landlord filed this revision petition (No. 239 of 1988) and by an interim order dated 17.3.1988, on the application of the landlord further proceedings in the aforesaid suit were stayed by this court. Subsequently, he moved another application before the court below again praying for striking off the defence under Order XV, Rule 5 of the Code of Civil Procedure. This was disposed of vide order dated 10th April, 1989 and the court allowed the landlord's application and struck off the tenant's defence holding that the tenant had deposited rent at the rate of Rs. 550 per month while the rent agreed was Rs. 700 per month. This subsequent order dated 10th April, 1989 is challenged by the tenants in the Civil Revision No. 522 of 1989. I have heard Sri Pankaj Mittal, learned counsel for the landlord and Sri Pramod Jain, learned counsel for the tenant.
(3.) IT was contended by the learned counsel for the landlord that while the agreed rate of rent was Rs. 700 per month the tenant had deposited only Rs. 550 per month and, therefore, the order dated 6th January, 1988 was bad. A perusal of the impugned order shows that no such point was raised by the landlord before the court below and it was not contended that what was deposited by the tenant was not the admitted rent. The tenant's defence in the suit was that the rent originally agreed between the parties was only Rs. 700 per month but subsequently the landlord fraudulently occupied one room of the tenanted accommodation and, therefore, the tenant was liable to pay reduced rent at the rate of Rs. 550 only. The contention of the learned counsel for the landlord is that the tenant is not entitled to make any such adjustment and the rent of Rs. 700 per month would be deemed to be the due admitted rent. This contention does not seem to be well founded. The plea relating to the aportionment of the rent has not been found to be frivolous even in the subsequent order. The rent that the tenant has to deposit is the rent admitted by him to be due. Therefore, it is the rent admitted by the tenant to be due at the rate of Rs. 550 that only was required to be deposited. If the tenant's plea of the rent stood reduced to Rs. 550 is not upheld, it may lead to another consequence but the defence cannot justifiably be struck off for that reason. In Mrs. A. D. Higgins v. Additional District Judge, Ilnd, Allahabad, 1984 (2) ARC 354, the tenant had adjusted a certain amount for repairs and deposited the amount under Order XV, Rule 5 in the count after making such adjustment. It was held that the tenant was not entitled to deduct the amount but yet since he was under bona fide belief that he was entitled to do so, that default was condoned. In Dr. Sada Nand Tyagi v. Ill Addl. District Judge, Meerut, 1982 ARC 265, it was held that the admitted rent is the rent which according to tenant was payable. In Surendra Nath Bibra v. Stephen Court Ltd., AIR 1966 SC 1361, it was held that where the landlord failed to give possession of one out of three bed rooms of demised premises, the tenant was not entitled to suspend the rent but must pay proportionate rent. It was observed that it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property. Therefore, the plea of the defendant-tenant that since he was deprived of a portion of the accommodation by the landlord he is entitled to reduce the rent proportionately could not be said to be untenable on its very face unless it was held that the landlord had not done any such thing, the court below even In the subsequent order has not held that the tenant's plea was frivolous and was a device merely to protect himself against the rigours of Order XV, Rule 5 of the Code of Civil Procedure.;