High Court · 2025 on 14 May 2025

Judgment

1. Heard Sri Ashish Kumar Srivastava , learned counsel for the revisionist, Sri Tarkeshwari Prasad along with Sri Romeshwari Prasad, learned counsel for the opposite parties and Sri Vineet Sankalp, learned counsel for Nagar Nigam, Varanasi.

2. Present revision has been filed with following relief; “It is, therefore, most respectfully prayed that this Hon’ble Court may very kindly be pleased to stay the operation and effect of impugned judgement and order dated 12.3.2025 passed by Additional District Judge/Special Judge (P.C. Act), Court No. 1, Varanasi in S.C.C. Suit No. 48 of 2015 during the pendency of this this revision before this Hon’ble Court and/ or pass such other and further order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.”

3. In pursuance of order of this Court dated 05.05.2025 Sri Vineet Sankalp, learned counsel for the respondents submitted that Officer Incharge (Revenue), Nagar Nigam, Varanasi is authorised to sign the rent deed. He also submitted that Officer Incharge (Revenue), Nagar Nigam, Varanasi owns the rent deed annexed as annexure 11 to the revision.

4. Present revision has been filed against the impugned judgment and order dated 12.03.2025 passed by Additional District Judge/ Special Judge (P.C. Act), Court No. 1, Varanasi in SCC Suit No. 48 of

5. Undisputed fact of the case is that house in question was earlier in the ownership of one Chandr Bhushan Shah & Indra Bhushan Shah and through registered sale deed dated 30.07.1998, the same was

purchased by revisionist-plaintiff. In paragraph 17 of the written statement, tenancy was admitted with Chandra Bhushan Shah and Indra Bhushan Shan and further, in paragraphs 26 & 27, tenancy with revisionist-plaintiff was also admitted. Tenancy agreement between plaintiff and defendants was signed on 21.04.2001. Revisionist-plaintiff filed SCC Suit No. 48 of 2015 against opposite party-defendants for Neutral Citation No. - 2025:AHC:94079 2/7 recovery of rent and eviction. In the said suit, written statement was also filed on 14.09.2016 without depositing the rent and damages on the first date of hearing i.e. without compliance of Order XV Rule 5 CPC. Later on, defendants entered into notarized agreement with Nagar Nigam, Varanasi dated 07.11.2019 and started depositing rent to Nagar Nigam, Varanasi. Nagar Nigam, Varanasi has also filed application under Order 1 Rule 10 CPC for impleadment in the SCC Suit and the same was rejected vide order dated 27.01.2020. Certified copy of the same was also produced before this Court, which is taken on record. The said order has not been challenged by Nagar Nigam, Varanasi before any Court of law. Not only this, earlier defendants have filed application 26Ga to produce three documents, namely, (i) the title document of the predecessor-in-interest of the plaintiff, without describing and specifying the same; (ii) the title document of the plaintiff; and (iii) the no objection certificate for execution of the sale deed in favour of the plaintiff, without specifying whether any such NOC was granted or not. The said application was rejected vide order dated 17.03.2017 by Additional District Judge/ Special Judge (E.C. Act), Court No. 4, Varanasi with observation that tenant landlord relationship has been proved, therefore, there is no occasion to summon the records as prayed. Against the said order, defendants has filed Matters Under Article 227 No. 2177 of 2017 before this Court, which was dismissed vide order dated 20.07.2017 with cost of Rs. 10,000/-. Against the said order, no appeal has been preferred before the Apex Court. In light of such undisputed facts, plaintiff has filed application dated 13.07.2023 under Order XV Rule 5 CPC numbered as 127Ga and the said application was rejected by the impugned judgment and order dated 12.03.2025.

6. Learned counsel for the revisionist submitted that impugned order is bad on so many grounds i.e. on the ground of technical error as undisputed notary agreement is mentioned as registered agreement in the impugned order dated 12.03.2025.

7. He next submitted that once, it is undisputed between the parties that in written statement tenancy has not been disputed and also first appearance took place on 14.09.2016 by filing written Neutral Citation No. - 2025:AHC:94079 3/7 statement, therefore, it is required on the part of defendants to comply Order XV Rule 5 CPC, which undisputedly has not been complied with. So far as Nagar Nigam, Varanasi is concerned, there is dispute between plaintiff and Nagar Nigam, Varanasi. Earlier Nagar Nigam, Varanasi deleting the name of plaintiff, mutated its own name, which he has challenged by filing Appeal No. 4 of 2020 and appeal was allowed vide order dated 30.11.2022, matter was remanded back to Nagar Nigam, Varanasi to pass fresh order. Nagar Nigam, Varanasi vide order dated 16.05.2023, again recorded the name of Nagar Nigam, Varanasi. Against which, plaintiff-revisionist has filed mutation appeal, which is still pending as on date. He next pointed out that even if there is some dispute between plaintiff-landlord and Nagar Nigam, Varanasi that may not come in the rescue of defendants and for the reason that tenancy is undisputed and more than 65 years old. As per written statement, tenancy has been admitted with plaintiff on

21.04.2001. He also pointed out that Nagar Nigam, Varanasi tried to be impleaded in the present SCC Suit by way of filing application under Order 1 Rule 10 CPC, which was rejected vide order dated

27.10.2020 and has not been challenged, meaning thereby as on date, Nagar Nigam, Varanasi is having no locus standi in SCC Suit. He next submitted that Apex Court in the case of Asha Rani Gupta Vs. Sri Vineet Kumar; [2022 (2) ARC 161] has considered the same fact and has held that denial of title of plaintiff and landlord tenant relationship would not absolved of the liability to make payment of rent; and on failure to make such payment/deposit, the consequences contemplated by the Order XV Rule 5 CPC would indeed follow and he cannot be granted any so-called indulgence. He has also relied upon the judgment of this Court in the matter of Radhe Shyam Chaurasiya and another Vs. Smt. Babita; [2022 (2) ARC 689]. This Court has also taken the very same view. He next submitted that in light of such fact, order impugned is bad and liable to be set aside.

8. Learned counsel for opposite parties submitted that property in dispute is lease property and sale deed dated 30.07.1998 has been fraudulently obtained. After knowing this fact, they have moved application before District Magistrate for conducting enquiry. Upon Neutral Citation No. - 2025:AHC:94079 4/7 enquiry, lease deed was cancelled and new agreement has taken place between plaintiff and Nagar Nigam, Varanasi dated 7.11.2019, since then they are paying rent to Nagar Nigam, Varanasi without any default. He next submitted that they have filed civil suit for injunction restraining the plaintiff to take rent, which is still pending for adjudication, but he could not dispute that earlier they were tenant of erstwhile owner as admitted in paragraph 17 of written statement and later on, tenancy has also been admitted with plaintiff by agreement dated 21.04.2001.

9. I have considered the rival submissions made by learned counsel for the parties as well as perused the record and judgments relied upon.

10. Being confronted by the Court, defendants could not dispute this fact that alleged illegal sale deed dated 30.07.1998 has neither been challenged before any Court of law nor cancelled till date. The issue as to whether once, relationship between tenant and landlord is not disputed, defendants can be permitted not to comply the provision of Order XV Rule 5 CPC is no res integra. It is undisputed that computerized notary agreement between defendants and Nagar Nigam, Varanasi was signed on 7.11.2019, whereas written statement was filed on 14.09.2016 with the admission of tenancy agreement between plaintiff and defendants dated 21.04.2001. It is also admitted that no rent has been deposited by the defendants in suit proceeding. Under such facts of the case, once, tenancy is duly admitted in written submission and no rent has been deposited, any later agreement dated 7.11.2019 is having no legal substance and defendants are bound to comply Order XV Rule 5 CPC at the time of first appearance i.e. in present case, at the time of filing of written submission.

11. Second issue is as to whether change of ownership can benefit the defendants in present suit. It is undisputed that after agreement, Nagar Nigam, Varanasi has filed application under Order 1 Rule 10 CPC, which was rejected and the same has not been challenged before Apex Court. In fact, by that rejection, Nagar Nigam, Varanasi has been ousted from the present proceeding on the ground that it is a dispute between the tenant and landlord. Not only this, defendants Neutral Citation No. - 2025:AHC:94079 5/7 have also filed application 26Ga for summoning the ownership paper, which was also rejected by the Trial Court affirmed by this Court with cost of Rs. 10,000/- and the same has not been challenged meaning thereby this Court has also taken view that it is only dispute of tenancy, title is having no relevance and cannot be decided here.

12. Similar issue was before Apex Court in the matter of Asha Rani Gupta (supra). Relevant paragraphs are being quoted below; “14. 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.

15. Taking the facts of the present case, it is at once clear that the defendant-respondent, by his assertions and conduct, has left nothing to doubt that he has been steadfast in not making payment of rent/damages, despite being lessee of the suit shop. The present one has clearly been the case of volitional non-performance with nothing left to guess about the defendant’s mood of defiance. Nothing of any fact or any circumstance is existing on record to find even a remote reason for extending any latitude or relaxation in operation of Order XV Rule 5 CPC to the present case. It shall be apposite at this juncture to also observe that the contentions on behalf of the defendant-respondent to the effect that he had made payment of rent to the alleged erstwhile landlord Smt. Sudha Sharma and contra submissions on behalf of the appellant that even in the year 1990, the defendant- respondent admitted the said Shri Rajiv Kant Sharma as the owner of the property as also the factors co-related with these submissions, do not call for adjudication in this appeal. This is for two simple reasons: One, that so far as the fact of volitional non-performance by the defendant-respondent is concerned, with no cogent evidence of lawful payment of rent, the findings of fact by the Trial Court and the Revisional Court against the defendant- respondent stand final and have not been disturbed even by the High Court. There appears no reason for this Court to enter into any factual inquiry as regards payment of rent to Smt. Sudha Sharma or otherwise, now in this appeal. Secondly, so far as any affidavit filed by the defendant-respondent Neutral Citation No. - 2025:AHC:94079 6/7 in the year 1990, allegedly admitting Shri Rajiv Kant Sharma as owner of property is concerned, it may be a matter of adjudication by the Trial Court but would not be a matter of consideration in this appeal. Suffice it to observe that the present one is a case very near and akin to that of Hisamul Islam Siddiqui (supra) wherein, the learned Single Judge of the same High Court has approved the order striking off the defence after finding want of deposit of the amount of rent, despite the defendant having not denied his status as tenant.

16. 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 Revisional Court had also approved the order of the Trial Court on relevant considerations. Even the High Court did not find the pleas taken by the defendant- respondent to be of bonafide character, particularly when survey number of the shop let out to him was clearly stated in the sale deed executed in favour of the plaintiff. We find it rather intriguing that, despite having not found any cogent reason for which discretion under Rule 5 of Order XV Rule 5 CPC could have been exercised in favour of the defendant-respondent, the High Court, in the last line of paragraph 45 of the order impugned, abruptly stated its conclusion that: ‘yet the defendant/tenant deserves some indulgence’.”

13. From perusal of aforesaid judgment, it is undisputed that rent paid to any other owner cannot come in the rescue for operation of Order XV Rule 5 CPC.

14. This Court in the matter of Radhe Shyam Chaurasiya (supra) has taken the same view. Relevant paragraphs are being quoted below; “From perusal of Order XV Rule 5 of C.P.C., it is apparently clear that any deposit made prior to first appearance in SCC suit may be adjusted for arrears of rent due upon filing an application, but after institution of suit, it is mandatory requirement to deposit rent before the Court, where the suit is instituted. Once it is not disputed that rent has not been deposited before the Court concerned, where the suit is instituted, there is no option before the Court to struck off the defence as provided under the provisions of Order XV Rule 5 of C.P.C. So far as present case is concerned, there is admission on the part of revisionist no.2 that she has paid rent from time to time and she is tenant. She also admitted that she has never paid rent before the Court concerned after first hearing of the suit as required under Order 5 Rule 15 6of C.P.C.” Neutral Citation No. - 2025:AHC:94079 7/7

15. In light of facts as well as law discussed hereinabove, it is absolutely clear that legal issue raised in the present case is squarely getting support from the above noted judgment. Therefore, application dated 13.07.2023 under Order XV Rule 5 CPC numbered as 127Ga is allowed and impugned judgment and order dated 12.03.2025 passed by Additional District Judge/ Special Judge (P.C. Act), Court No. 1, Varanasi is hereby quashed.

16. With the aforesaid observations, revision is allowed. Order Date :- 14.5.2025 Arvind ARVIND KUMAR GUPTA High Court of Judicature at Allahabad