By Merely Denying Landlord-Tenant Relationship, Defendant In Eviction Suit Can't Enjoy Property During Pendency Without Depositing Rent : Supreme Court

The Supreme Court has observed that a defendant cannot enjoy the property during pendency of suit without depositing the amount of rent/damages by merely denying the relationship of landlord- tenant/lessor-lessee. "In the context of the proposition of denial of title of the plaintiff and denial of relationship of landlord and tenant between the plaintiff and defendant, we may also observe that such a denial simpliciter does not and cannot absolve the lessee/tenant to deposit the due amount of rent/damages for use and occupation, unless he could show having made such payment in a lawful and bonafide manner. Of course, the question of bonafide is a question of fact, to be determined in every case with reference to its facts but, 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 Justices Dinesh Maheshwari and Aniruddha Bose observed while allowing the appeal.The Court was deciding the applicability of Order XV Rule 5 of the Code of Civil Procedure in the case. As per this provision, the the defence of the defendent in an eviction suit can be struck off on if there is default in depositing the rent dues. The court also opined 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 only basic requirement in the suit of the nature envisaged by Order XV Rule 5 CPC is the character of defendant as being the lessee/tenant in the suit premises," Court further added. In the present matter the plaintiff had filed a suit before the Trial Court averring that she was the owner of a shop as she had purchased the registered sale deed from the erstwhile owner. She also stated in the suit that the defendant who was a chronic defaulter in payment of rent and taxes was a tenant in the shop. Denying the relationship of landlord and tenant, the defendant asserted in his written statement that the alleged sale deed was illegal and void. Praying for striking off the defendant's statement, the plaintiff had preferred an application under Order XV Rule 5, CPC on the ground that the defendant had not deposited any rent and had not adduced any evidence to establish payment of any rent. The application was contested by the defendant on the ground that the provisions invoked were only applicable to a case where the defendant accepted plaintiff as his landlord. The defence was struck off by the Trial Court by observing 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. Since the ADJ upheld the view taken by the single judge, the defendant approached the High Court. The High Court while allowing defendant's application, set aside the orders impugned before it, directed the defendant to deposit the arrears of rent together with interest within one month and f to deposit the current rent as determined by the Trial Court, month by month, by seventh of every month during the pendency of litigation. Aggrieved by the High Court's order, the plaintiff approached the Top Court. Counsel for the appellant urged that only he 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 but, without giving any specific reason or finding to overturn the considered orders passed by the subordinate Courts. Referring to the provisions contained in Order XV Rule 5 CPC, Counsel submitted that as per the said provisions, the defendant-respondent, being the tenant of the suit shop, was required to pay or deposit the entire rent for use and occupation of the shop in question but, he neither paid nor deposited the due amount on the first hearing. Relying on the law laid down in Bimal Chand Jain v. Sri Gopal Agarwal: 1981 (3) SCC 486 and Manik Lal Majumdar and Ors. v. Gouranga Chandra Dey and Ors.: AIR 2005 SC 1090, the respondent's counsel submitted that when he had 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. To adjudicate on the issue as to whether the High Court was right in reversing the order striking off defence in terms of Order XV Rule 5 of the Code of Civil Procedure, 1908, the bench referred to few basic factors related with the provisions of Order XV Rule 5 CPC could be noticed at once. "As per these provisions,...

By Merely Denying Landlord-Tenant Relationship, Defendant In Eviction Suit Can't Enjoy Property During Pendency Without Depositing Rent : Supreme Court

Shruti Kakkar

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