- The instant appeal concerns procedural issues under Order XV Rule 5 CPC that arose in a suit for eviction and recovery of rent arrears, as well as damages for use and occupation.
- The plaintiff-appellant contended that she is the owner of the suit shop because she purchased it from its previous owner via a sale deed dated 10-05-2010, and that the defendant-respondent has been a tenant since the time of its previous owner.
- She claimed that the respondent is a chronic defaulter in payment of rent and taxes, and that despite knowledge of the sale deed and despite her demand, the rent and taxes had not been paid to her since May 2010.
- On the contrary, the respondent denied the plaintiff and himself had a landlord-tenant relationship. Though he did not deny his position as a tenant in the suit shop, the defendant claimed that the alleged sale deed is illegal and void.
- The plaintiff-appellant had filed an application under Order XV Rule 5 CPC, requesting that the defendant-defence respondent's be struck off because he had not deposited any rent and had provided no evidence to establish any payment of rent.
- According to Order XV Rule 5 CPC, failure to make deposits may result in the Court dismissing the tenant's defence.
- However, before issuing an order striking off defence, the Court must consider the defendant's representation if it is made within 10 days of the first hearing or within 10 days of the expiration of one week from the date of accrual of monthly amount.
- The Court stated that this would directly relate to such facts, factors, and circumstances where full and punctual compliance had not been made for any legitimate reason, as opposed to a defiance or volitional/elective non-performance approach.
- The Court noted that while the first part of sub-rule (1) of Rule 5 of Order XV CPC requires deposit of the admittedly due amount of rent plus interest, the second part mandates that whether or not the tenant admits the amount to be due, he must regularly deposit the monthly amount due within a week of its accrual throughout the duration of the suit.
- The Court held that by simply denying the plaintiff's title or the landlord-tenant/lessor-lessee relationship, a defendant in the current suit cannot enjoy the property during the pendency of the suit without depositing the rent/damages.
- The Court held that the defendant-conduct respondent's amounted to volitional non-performance and defiance because his assertions and conduct left no doubt that he has been steadfast in not making payment of rent/damages, despite being lessee of the suit shop.
- As a result, the Court determined that there was no reason for the High Court to intervene in lower Courts' concurrent findings.
- The High Court's order was overturned, and the Trial Court's order was reinstated. The Trial Court was instructed to take note of the fact that the suit filed in 2011 is still pending, and that it should be assigned reasonable priority for expeditious disposition.
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