The Supreme Court has held that merely denying the title of the plaintiff or relationship of landlord and tenant between the plaintiff and defendant, cannot absolve the lessee/tenant to deposit the due amount of rent/damages for use and occupation.

"…it cannot be laid down as a general proposition that by merely denying the title of plaintiff or relationship of landlord- tenant/lessor-lessee, a defendant of the suit of the present nature could enjoy the property during the pendency of the suit without depositing the amount of rent/damages.", the Bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed.

Facts of the Case

A suit was filed by appellant- Asha Rani Gupta against the respondent Sri Vineet Kumar with the averments, inter alia, that she is the owner of a shop which was purchased from the erstwhile owner Rajiv Kant Sharma through a registered sale deed.

Asha Rani Gupta averred that Sri Vineet Kumar is a tenant in the suit shop. It was alleged that he was a chronic defaulter in payment of rent and taxes; and despite demand made by her, the rent along with taxes had not been paid by him since May 2010.

In his written statement, the Sri Vineet Kumar denied the relationship of landlord and tenant between the plaintiff and himself, though he did not deny his status as tenant in the suit shop. He asserted that the alleged sale deed was illegal and void. He claimed that the shop in question was let out to him by one Sudha Sharma wife of Rajiv Kant Sharma; and not by Shri Rajiv Kant Sharma, the alleged transferor of the plaintiff. He also alleged that Sudha Sharma was earlier issuing the rent receipts but afterwards, stopped giving the receipts though she was regularly receiving rent.

Asha Rani Gupta filed an application with reference to the provisions of Order XV Rule 5 Code of Civil Procedure (CPC) and prayed that the defence of the defendant-respondent be struck off, for the reason that defendant had not deposited any rent and no evidence was adduced by him to establish any payment of rent.

This application was contested by the Sri Vineet Kumar with the submissions that the provisions of Order XV Rule 5 CPC were applicable only to a case where the defendant would accept the plaintiff as his landlord.

In the present case, he had taken the special plea that Asha Rani Gupta was not the landlord or the owner of the suit shop and had clearly averred that there was no relationship of landlord and tenant between the plaintiff and defendant.

The Trial Court found that no evidence was placed on record by the defendant to show his payment of rent to the plaintiff and observed that even if the tenant would deny the relationship of landlord and tenant, the application under Order XV Rule 5 CPC was maintainable.

Accordingly the Trial Court proceeded to strike off the defence.

This order was challenged but came to be dismissed by Fourth Additional District Judge, Aligarh. Aggrieved the respondent approached the High Court and his petition came to be allowed.

Feeling aggrieved by the Order of the High Court, the appellant-Asha Rani Gupta moved Supreme Court.

Contentions by Parties

Advocate Dhananjay Garg appearing for appellant-Asha Rani Gupta strenuously argued that the High Court dealt with the matter in a cursory manner. He contended that the High Court has misinterpreted and misapplied the provisions of Order XV Rule 5 CPC and has allowed the petition filed by the defendant by merely holding that he was entitled to some indulgence without giving any specific reason.

He argued that even if the defendant-respondent had taken the plea suggestive of denial of title of the plaintiff and denial of the relationship of landlord and tenant, he cannot be absolved of the liability to make payment of rent.

On the contrary Advocate Praveen Jain appearing for the defendant-respondent submitted that the view taken by the High Court required no interference. He submitted that when the defendant-respondent has taken specific plea regarding non-existence of relationship of landlord and tenant, he was not liable to deposit any rent in terms of the Order XV Rule 5 CPC.

He asserted that the expression "may" in sub-rule (1) of Rule 5 of the Order XV merely vests discretionary power in the Court to strike off the defence but, it does not oblige the Court to do so in every case of default or non-payment of rent.

Courts' Observation

The Court at the Outset considered the provisions of Order XV Rule 5 CPC which states thus-

"5. Striking off defence on failure to deposit admitted rent. – (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 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.

(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."

The Court noted that the power to strike off defence is discretionary, which should be exercised with circumspection but, relaxation is reserved for a bonafide tenant.

"Read as a whole, it is but clear that Order XV Rule 5 CPC 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 is subsisting or it has been determined.", the Court remarked.

The Court observed that it was imperative for the defendant, who had not denied his status as being the lessee, to have scrupulously complied with the requirements of law and to have deposited the arrears of rent due.

The Court held that by merely denying the title of plaintiff or relationship of landlord- tenant/lessor-lessee, the defendant of the suit of the present nature cannot enjoy the property during the pendency of the suit without depositing the amount of rent/damages.

The Court observed that the defendant-respondent, by his assertions and conduct, shows that he was steadfast in not making payment of rent/damages, despite being lessee of the suit shop.

"In the totality of facts and circumstances, we are clearly of the view that there was absolutely no reason for the High Court to have interfered in the present case, where the Trial Court had struck off the defence after finding that there was no evidence on record to show the payment or deposit of rent in favour of the plaintiff by the defendant- respondent.", the Court held while setting aside the order of the High Court and restoring the order of the Trial Court.

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Supreme CourtJustice Dinesh MaheshwariJustice Aniruddha BoseCPC

Ashish Shaji