Dismissed

Smt. Priyanka Gupta and Ors. v. Harish Chandra Shah and Anr.

Uttarakhand HC27 Jul 2017WPMS/275/2007

Case brief

AI extract

What is this about?

This single-judge writ petition challenged the striking off of a petitioner's defense in a small cause suit for eviction due to alleged non-compliance with Order 15 Rule 5 CPC regarding rent deposit. The court dismissed the writ, holding the trial court's finding of contradictory pleadings on tenancy nature as correct and finding no mistake on the face of the record.

What did the court decide?

Writ petition dismissed; writ petitioner ordered to pay Rs. 10,000/- to the respondent-landlord.

Smt. Priyanka Gupta and Ors. Vs Harish Chandra Shah… — Landlord and Tenant | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 275 of 2007

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Smt. Priyanka Gupta and Ors. .….……Petitioners

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Versus

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Harish Chandra Shah and Anr. ……. Respondents

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Present: Mr. Jagdish Chandra Belwal, Advocate for the petitioners. Mr. Tarun Lakhera, Brief Holder for the State/respondent No. 1.

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Mr. Mahavir S Tyagi, Advocate for the private respondent

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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The respondent-landlord had filed a suit being a Small Cause Suit No. 4 of 1998, on the grounds of arrears of rent and damages. He had sought eviction from the tenement, which constitutes to be the part of House No. 1- 631, having one big shop (two shops connected into one) at Rassi Gali, Pant Market, Clay Bazar, Haldwani, bounded on the East by Rassi Gali, on the West by shop of Shah Furnitures, on the North by Stairs and on the South by Shop in the tenancy of Sri Ajit Singh Chauhan.

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The respondents in the Suit, specifically came up with a case that the petitioner is a month to month tenant of the shop in question and the rent which was settled between them and which was procured at the time of institution of the Suit @ of Rs. 200/- per month. A written statement was filed by the defendant/petitioner and in the written statement, the petitioner has come up with the case that he is the tenant on

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the basis of an annual rent, alleging that he is liable to pay a rent @ of Rs. 1200/- per annum under Order 15 Rule 5 of the Code of Civil Procedure. It provides that on the initiation of proceedings for rent eviction where the eviction is sought of a lessee by the lessor after determining the tenancy for recovery of rent and damages for the use of the tenement, it is the responsibility of the tenant occupying the premises to deposit of the earlier rent due on the first date of hearing of the suit, he should deposit the entire amount admitted by him and continue to deposit the rent throughout the continuation of the Suit, he is also liable to pay an interest @ 9% per annum.

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While the suit proceeding was going on and due to non depositing of the rent, respondent no. 1 filed an application seeking for striking off defense of petitioners due to non-compliance of the provisions contained under Order 15 Rule 5. The application which has been filed on record, surprisingly the respondent has not given any date as to on what date the application was filed. In response to it, the learned counsel for the petitioners has filed his objection to application under Order 15 Rule 5 on 18.04.2006, wherein he has submitted that he has deposited the amount from 01.10.2003 to 20.09.2006 at the rate of Rs. 600/- per month by a challan. Yet again the date of the challan has not been mentioned therein.

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Even so much so, copy of the challan or deposit receipt on which the learned counsel for the petitioners relies, which has been made as a part of the record, annexed in page (21-A) to the writ petition do not disclose the date on which the deposit was made. Even the challan, which has been filed subsequently, page 27 of the writ petition, shows the deposit has been made of Rs. 1350/- from 01.10.2006 to 30.09.2007 and this deposit has been made on 09.10.2006. Meaning thereby, even as per the second challan itself it cannot be treated as to be in compliance of the provisions contained under Order 15 Rule 5, as it will not be treated as to be a continuous deposition of admitted rent which has to be made under it.

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The application came up for consideration before the Judge, Small Causes (Civil Judge), Sr. Division, who by the impugned order dated 21.03.2007 has allowed the application as paper No. 78 Ga and struck off the defense of the petitioners, hence the writ petition.

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Before I address on the merits of the order, it is pertinent to observe at this juncture that this Court feels that the writ petition is absolutely one of the best example of abuse of process of law, as against an order of striking off defense by the Civil Judge, Sr. Division exercising powers of the Provincial Small Cause Courts Act, merely under the provisions contained under the Code of Civil Procedure, the writ petition would not be maintainable. Against the

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judgment and order filing of a writ petition and getting the proceedings stayed for last over 10 years is rather playing with the intricacies of the law and to the burdens on the respondent-landlord with multifarious proceedings. Thus, the writ petition is levied with a cost of Rs. 10,000/- to be paid to the respondent-landlord for delaying proceedings by filing writ petition against the order striking of defense, which was otherwise a revisable order.

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On reading of the impugned order, it seems that the learned trial court has rightly considered the application based on the fact that the tenant has been taking contradictory pleas pertaining to the tenancy and its nature and the purposes of tenement he himself from striking off his defense under Order 15 Rule 5. Because at one juncture, the plea which has come forward from the petitioner-defendant is that his tenancy is of six months, but the learned Small Causes Court, looking to the application 56 Ga, apparently the rent was not deposited in accordance to it coupled with the fact that the tenant against his objection has annexed the challan and has deposited a composite rent for three years which is not the intention of under Order 15 Rule 5 and since the application itself was based on contradictory plea, the Court held that the defense of the petitioner deserves to be struck off.

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In the second phase of argument, he took a plea that his tenancy was annual which is a somersault plea taken

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at a later stage and contrary to his own affidavit wherein in para 2 he has submitted that he is paying rent at the rate of Rs. 100/- per month.

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Thus, from the findings recorded, it seems that the petitioner was deliberately confusing the issue before the court below as to confuse the status of tenance as to what is the nature of the tenancy, what is the rent and what is the mode of depositing of the rent; whether it is annually, six monthly or monthly?

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This Court now feel that looking to the pleading the tenancy was month to month basis and the same was not remitted as per provisions of Order 15 Rule 5. According to Order 15 Rule 5 tenant has to deposit the admitted rent and all dues on first date of hearing and continue to deposit the same each month. In this case, tenant has taken contradictory plea pertaining to settlement of tenancy. In the instant case apparently it has been settled that tenant has not deposited the rent since 01.10.2006, and tenant has failed to assign any reason for not depositing the admitted rent.

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The tenant at any stage alleges rent which was settled, was six monthly, but the evidence and pleadings show that petitioner has not even deposit 6 monthly rent, but rather had deposited consolidated rent for 3 years.

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Learned counsel for the petitioner cannot be permitted to play with law by avoiding the process contemplated in it. The finding recorded by the learned court below that the rent deposited is not in consonance to under Order 15 Rule 5 since the rent having been annual which is not a settled norms the defense of the petitioner has rightly been struck down and this Court finds no mistake apparent on the face of the record, the writ petition is dismissed taking into consideration the fact that the suit itself is pending since 1998, the learned Small Cause Court is requested to decide the suit as expeditiously as possible but not beyond the period of 6 months from today.

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Writ petition lacks merit and is hereby dismissed.

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No order as to cost.

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(Sharad Kumar Sharma, J.) 27.07.2017

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Mahinder/

Smt. Priyanka Gupta and Ors. v. Harish Chandra Shah and Anr.

Case brief

What is this about?

What did the court decide?

Smt. Priyanka Gupta and Ors. v. Harish Chandra Shah and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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