Judgment:
D. S. Sinha, J.
1. Heard Sri B. N. Agarwal. the learned counsel appearing for the defendant-applicant and Sri Prakash Gupta, the learned counsel appearing for the respondent-opposite parties.
2. Instant revision under Section 25 of the Provincial Small Cause Courts Act, 1887, as amended by the State of U. P. is directed against the order dated 16th September. 1989, passed by the Judge. Small Causes Court/IV Additional District and Sessions Judge, Jhansi in Original Suit Wo. 15 of 1988, Ramanand Dixit and another v. Bal Krishna.
3. The impugned order was passed on the application No. 30-C moved by the plaintiff-opposite parties under Rule 5 of Order XV of the Code of Civil Procedure. 1908 (hereinafter called the 'Code'), and by the order the defence of the defendant-applicant has been struck off. The applicant seeks to assail the Impugned order on the following two grounds :
1. that the trial court has misconstrued the provisions of Order XV Rule 5 of the Code of Civil Procedure and wrongly struck off the defence of the defendant-applicant inasmuch as under Order XV, Rule 5 of the Code of Civil Procedure, only admitted amount is to be deposited by the defendant-applicant but defendant-applicant has not admitted any amount which is due and as such, the defence was not liable to be struck off : and
2. that the application of the plaintiff-opposite parties for striking off the defence of the applicant was notmaintainable after close of the evidence of the plaintiffs' witnesses and the trial court committed illegality in entertaining and allowing the application.
4. So far as ground No. 2 is concerned. It does not survive inasmuch as on a reference made in this case itself, a Division Bench of this Court by its judgment and order rendered on 9th April. 1996, has held as below :
'...... in view of the provisions of Rule 5 of Order XV of the Code, where the defendant commits default in making the deposit of the monthly amount due during the continuation of the suit, even after the closure of the evidence of the plaintiff, the Court shall have power to strike off defence, and to consider the application made by the landlord under Order XV. Rule 5, C.P.C. and decide the same on merits.'
5. For the purposes of proper appreciation of and adjudication upon ground No. 1, the provisions of Rule 5 of Order XV of the Code, as amended by the U. P. Act No. 57 of 1976, is quoted below in extenso :
5. 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 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, subjectto the provisions of sub-rule (2), strike off his defence.
Explanation.--The expression 'first hearing' means the date for filing written statement or 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 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.--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.'
6. Sub-rule (1) of Rule 5 of OrderXV of the Code mandates that in any suit by lessor for 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 at the rate of nine per centum per annum'. It further ordains that the defendant shall, whether or not he admits any amount to be due throughout continuation of the suit regularly deposit 'the monthly amount due' within a week from the date of its accrual. Disobedience of the mandate of making the deposit of 'the entire amount admitted by him to be due' or 'the monthly amount due as aforesaid, may, subject to the provisions of sub-rule (2), invite penalty of striking off the defence of the defendant.
7. In the instant case, obligation with regard to the deposit of the entire amount admitted to be due together with interest thereon at the rate of nine per centum, at or before the first hearing of the suit, does not arise inasmuch as the applicant has not admitted any amount to be due. Therefore, the only question which is required to be considered is whether the applicant has incurred penalty of having his defence struck off for non-compliance of the mandate with regard to deposit of the monthly amount due within a week from the date of its accrual regularly during the continuation of the suit,
8. The expression 'monthly amount due', as defined by Explanation (3) to sub-rule (1) of Rule 5 of Order XV of the Code, 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 deductionexcept the taxes, if any, paid to a local authority, in respect of the building on lessor's account.
9. In the Instant case. It is not disputed that the amount falling due every month as rent is Rs. 300. Further, it is admitted that no monthly amount due has been deposited by the applicant. Thus, there is no escape from the conclusion that the applicant did commit default in compliance of the mandatory requirement of depositing 'the monthly amount due', which means the amount of rent due from him in respect of building for use and occupation at the admitted rate of rent, namely. Rs. 300.
10. The learned counsel appearing for the applicant further contends that the trial court should have decided the question whether the applicant was entitled to adjustment towards rent from the advance of Rs. 8,000 deposited by him as per agreement, and the trial court committed error in the eye of law in not accepting the theory of advance deposit put forward by the defendant-applicant. Thus, the Impugned order deserves to be annulled.
11. To buttress his contention. Sri Agarwal places reliance upon the order dated April 12, 1990 passed by a learned single Judge of this Court in Civil Revision No. 273 of 1990. Anil Kumar Maltajan v. Ashok Kumar and another. 1990 (2) ARC 189, wherein it has been observed as below :
'After hearing learned counsel for the parties at some length. I am of the opinion that the trial court should record a finding as to whether the plea taken by the defendant is a bona fide plea and also a finding as to whether there was a consent of the landlord for spending Rs. 45,000 and adjusting the same in the rent which would have become due for the future months. It is only after recording such a finding on the aforesaid question that the application under Order XV. Rule 5. C.P.C. be disposed of in accordance with the contract.whether implied or express, arrived at between the parties. It is, however, made clear that this Court is not expressing any opinion on merits of the case and the Court below will record its own finding on the basis of the materials filed by the parties before it.'
12. Mere perusal of the part of the order extracted above makes it clear that the opinion expressed in the order does not constitute a binding precedent. An order cannot be read beyond what it decides. Therefore, the opinion expressed in the order on the basis of the facts and circumstances of that case cannot be assigned a status higher than an instance of the course adopted by the Court.
13. The provisions of sub-rule (1) of Rule 5 of Order XV of the Code, unmistakably, enjoin upon the defendant in a suit by a lessor for his eviction to regularly deposit the monthly amount due within a week from the date of its accrual throughout continuation of the suit. In the event of default, the Court may, subject to the provisions of sub-rule (2) of Rule 5 of Order XV of the Code, strike off his defence. The opinion expressed by the learned single Judge in the case of Anil Kumar Mahajan v. Ashok Kumar and another (supra) is not in consonance with the provisions of Rule 5 of Order XV of the Code inasmuch as the Explanation (3) to sub-rule (1) of Rule 5 of Order XV of the Code clearly forbids any deduction from 'the monthly amount due', except the taxes. If any paid to a local authority, in respect of the building on lessor's account. It is rather per incuriam, and cannot lend support to the contention of the learned counsel of the applicant.
14. All told, in the opinion of the Court, the revision lacks merit and is dismissed. The interim order/orders shall stand vacated. There is no order as to costs.
15. The suit has remained pending for over twelve years. Therefore, the trial court is directed to dispose of the suit as expeditiouslyas possible, but not later than sixmonths from the date of receipt of thecertified copy of this order.