ASHA RANI GUPTA versus SRI VINEET KUMAR

Citation: [2022] 15 S.C.R. 402 · Decided: 11-07-2022 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Appeal(s) allowed

cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
402
SUPREME COURT REPORTS
[2022] 15 S.C.R.
[2022] 15 S.C.R. 402
402
ASHA RANI GUPTA
v.
SRI VINEET KUMAR
(Civil Appeal No. 4682 of 2022)
JULY 11, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Civil Procedure, 1908: Ord. XV r.5(as applicable in
the State of U.P.) – Striking off defence for failure to deposit the
admitted rent – Eviction suit by appellant-lessor against the
respondent-lessee on grounds of arrear of rents and damages–
Failure of respondent to pay or deposit the due rent – Application
u/Ord. XV r.5 for striking off the defence – Allowed by the trial
court holding that there was no evidence of payment of rent to the
appellant and even if the tenant-landlord relationship is denied,
then also application u/Ord. XV r.5 was maintainable – Approved
by the revisional court, however, set aside by the High Court holding
that respondent was entitled to ‘some indulgence’ – On appeal,
held:As per the provision, the defendant is under an obligation to
deposit the entire amount admitted by him to be due along with the
interest on or before the first hearing and to regularly deposit the
monthly amount due within a week of its accrual throughout the
pendency of the suit – Consequence of default in making either of
these deposit is that the court may strike of his defence – However,
court should consider the representation of the defendant if made
within 10 days of the first hearing –Such provision has to be been
construed liberally; and the expression ‘may’ in regard to the power
of the Court to strike out defence has been construed as directory
and not mandatory – Power to strike off defence is considered to
be discretionary, which is to be exercised with circumspection but,
relaxation is reserved for a bonafide tenant – On facts, the
respondent has not denied his status as being the lessee and it has
clearly been the case of volitional non-performance with nothing
left to guess about the defendant’s mood of defiance – No facts or
any circumstance is existing on record to find even a remote reason
for extending any latitude or relaxation in operation of Ord. XV r. 5
– Conclusion of the High Court could only be said to be an
assumptive one, being not supported by any reason – Furthermore,
A
B
C
D
E
F
G
H
403
the deposits made belatedly, pursuant to the unsustainable order of
the High Court, would not enure benefit to the respondent – Thus,
the order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 A few basic factors related with the provisions
of Order XV Rule 5 CPC are that in a suit by a lessor for eviction
of a lessee after the determination of lease and for recovery of
rent or compensation for use and occupation, the defendant is
under the obligation: to deposit the entire amount admitted by
him to be due together with interest at the rate of 9% per annum
on or before the first hearing of the suit; and to regularly deposit
the monthly amount due within a week of its accrual throughout
the pendency of the suit. The consequence of default in making
either of these deposits is that the Court may strike off his
defence. The expression ‘first hearing’ means the date for filing
written statement or the date for hearing mentioned in the
summons; and in case of multiple dates, the last of them. The
expression ‘monthly amount due’ means the amount due every
month, whether asrent or damages for use and occupation at the
admitted rate of rent after making no other deduction except
taxes, if paid to the local authority on lessor’s account. It is,
however, expected that before making an order striking off
defence, the Court would 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. [Para 9.1][418-D-G]
1.2 The present suit has been filed by the plaintiff-appellant
claiming her capacity as the lessor after having purchased the
suit property from its erstwhile owner. According to the plaintiff,
the defendant has been the lessee in the suit shop and his lease
was determined; and while alleging the rent to be due and having
not been paid despite demand, the plaintiff has filed this suit for
eviction and recovery of arrears of rent and damages for use and
occupation. Having regard to the plaint averments, the suit in
question is clearly the one to which the provisions of Order XV
Rule 5 CPC are applicable. [Para 11][423-D-E]
ASHA RANI GUPTA v. SRI VINEET KUMAR
A

Excerpt shown. Read the full judgment & AI analysis in Lexace.