Sunday, 12 August 2018

Whether court can direct occupant to deposit damages if it is not proved that he is tenant?

A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. The next significant aspect is that the learned trial Court further passed order of striking off the defence of the petitioner on account of non-compliance of the impugned order. For this purpose, Sub-rule (2) of Order XV-A is required to be considered. It is conspicuous that before passing order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause shown in order to decide as to whether the defendant should be relieved from the order striking off the defence. Thus, the legislature has offered second opportunity to the defendant before striking off the defence and has afforded right of hearing. Such a person can show cause as to why the order could not be complied with and in that case, after application of judicial mind, the Court has discretion to relieve such a person from such an order of striking off the defence. Needless to say, the striking off the defence is not automatic only because of non depositing of the amount as directed by the Court. The defence cannot be so lightly struck off as has been done in the present case.

These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 100 of 2006

Decided On: 17.10.2006

Radheshyam  Vs. Tuljaprasad and Ors.

Hon'ble Judges/Coram: 
V.R. Kingaonkar, J.




1. Rule. Rule is made returnable forthwith and heard finally by consent of the parties.

2. By this petition, the petitioner challenges the order dated 14th October, 2005 rendered by the learned 3rd Joint Civil Judge, (J.D.) Hingoli purported to have been passed under Order XV-A of the Code of Civil Procedure. By the impugned order, the learned Civil Judge directed the petitioner to deposit amount of Rs. 36,000/- towards arrears of rent and to further deposit an amount of Rs. 1000/- per month towards damages for occupying the suit premises.

3. It is not necessary to elaborately set out the rival pleadings. It suffices to mention that the respondents filed suit (RCS No. 52/2004) for recovery of Rs. 36,000/- alleging that they are purchasers of house property bearing Municipal Nos. 243 and 244 situated in ward No. 22, Hingoli and that defendant/petitioner was in occupation of a part of the constructed portion oral consent of the previous owner. They further alleged that after 9-3-2001 the defendant illegally occupied one adjacent room and started using the same. Their basic contention is that the defendant is in illegal possession of both the rooms. Hence they sought recovery of damages. The petitioner/ defendant denied all the material allegations. He denied that he has committed trespass over one of the room. He also denied that the respondents are the owners of the house property. It is his case that he was inducted in possession by the previous owner Shankarlal Agrawal and the latter's son Gopal. He is tenant in respect of the premises in question and had paid the rent to the said Shankarlal prior to the alleged sale transaction between Shankarlal and the respondents which they have allegedly purchased by virtue of sale deed dated 18-3-1993.

4. The respondents filed an application (Exh. 6) alleging that the defendant is claiming to be tenant of the property and their claim is of Rs. 500/- per month towards damages. They urged for direction that the defendant shall deposit arrears of Rs. 36,000/-. They also requested to strike out defence of the petitioner in case of his failure to deposit such amount.

5. By the impugned order, the learned trial Court directed the petitioner to deposit Rs. 36,000/- on or before 20-10-2005 and further to deposit Rs. 1000/- per month on or before 5th day of each calender month. It also appears that subsequently by order dated 8-11-2005, the learned trial Court directed to strike off the defence of the petitioner.

6. Heard learned Counsel for the parties. It is argued by learned Counsel for the respondents that the impugned order cannot be interfered with in the exercise of powers under Article 227 of the Constitution. He relied upon certain observations in Shaker Dass Naraindass v. Sita Ram Jawala Parshad AIR 1956 PEPSU 83 and "Heirs of deceased Muljibhai alias Rakhubhai Sardarsinh Raj and Bai Jiba v. State of Gujarat MANU/GJ/0143/1994 : AIR1994Guj145 . He further contended that the trial Court was within its jurisdiction to direct the petitioner to deposit the amount so claimed by the respondents. Learned Counsel Shri Veer S.T. further contended that the power available under Order XV-A is properly utilized by the trial Court and it is permissible to give such directions in view of Jaihind Vidyalaya v. Ghanshyam Girdharilal Khinchi MANU/MH/0299/1989 : AIR1989Bom99 .

7. Mrs. Ghate, learned Counsel for the petitioner would submit that identical application in another suit bearing RCS No. 55/2004 was rejected by the trial Court and as such, it was impermissible to take contrary view only because the Judge changed and the names of the parties are changed. The learned Counsel for the petitioner would submit that the impugned order is arbitrary and liable to be quashed.

8. Before I proceed to consider the rival contentions on their merits, let it be noted that Order XV-A of the CPC as it stands in accordance with the Bombay High Court Amendment, runs as follows:

ORDER XV-A : Striking of Defence in a suit by a lessor:

Rule 1(1) In a suit by a lessor for eviction of a lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the Court may fix) and thereunder continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit.

In the event of any default in making the deposit, as aforesaid, the Court may subject to the provisions of Sub-rule (2) strike off the defence.

(2) Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved an order striking off the defence.

9. A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. The next significant aspect is that the learned trial Court further passed order of striking off the defence of the petitioner on account of non-compliance of the impugned order. For this purpose, Sub-rule (2) of Order XV-A is required to be considered. It is conspicuous that before passing order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause shown in order to decide as to whether the defendant should be relieved from the order striking off the defence. Thus, the legislature has offered second opportunity to the defendant before striking off the defence and has afforded right of hearing. Such a person can show cause as to why the order could not be complied with and in that case, after application of judicial mind, the Court has discretion to relieve such a person from such an order of striking off the defence. Needless to say, the striking off the defence is not automatic only because of non depositing of the amount as directed by the Court. The defence cannot be so lightly struck off as has been done in the present case.

10. There cannot be two opinions about the proposition of learned Counsel Shri Veer that generally the discretionary power of the trial Court need not be interfered with in exercise of the powers under Article 227 of the Constitution. Still, however, if the use of discretionary power is improperly and arbitrarily made by the trial Court then the supervisory jurisdiction has to be exercised. The Apex Court in case of Kishore Kumar Khaitan v. Praveen Kumar Singh MANU/SC/0940/2006 : AIR2006SC1474 has laid down that the supervisory jurisdiction may be exercised to rectify the errors in rendering finding of fact when there is impropriety committed by the Court. The discretionary orders of the trial Court or for that matter the appellate Court cannot be regarded as invulnerable. It is not possible to entertain the argument that such orders cannot be interfered under Article 227 of the Constitution even if there is manifest illegality and arbitrariness noticed. In this view of the matter, I find it difficult to countenance the argument of learned Counsel Shri Veer for the respondents.

11. The trial Court has observed that the defendant has admitted in his written statement that he is a tenant in the suit premises. The trial Court further observed that according to the plaintiffs the defendant is using the suit premises without any authorization. In spite of this, the trial Court has further observed:

Therefore, the plaintiff is praying that the defendant be directed to deposit the amount Rs. 36,000/- in the Court towards the arrears of the rent and the defendant be directed to deposit Rs. 1000/- towards the damages per month.

(Emphasis supplied)

12. These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. As a matter of fact, the impugned order is so harsh that it practically amounts to granting of peremptory decree although impliedly. I am of the opinion that the impugned order is perverse, arbitrary and untenable.

13. In the result, the impugned order is quashed. The further consequential order shall be recalled when the main order is quashed and the trial Court shall proceed to hear the suit expeditiously. The observations made in this judgment may not influence the trial Court in decision making at the time of final hearing and in any other suit filed by the respondents. Petition is allowed. Rule is made absolute in the above terms. No costs.


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