Monday, 4 November 2019

Bombay HC: Application U/O XV-A of CPC can be entertained in suit even if suit in not on the ground of arrears of rent

The petitioner seeks eviction of the respondent under the provisions of
Section 16 (1)(g) and (n) of the said Act. If during the pendency of the suit the rent

in question is not being deposited, the plaintiff in a suit for eviction of the
defendant either with or without arrears of rent can take resort to the provisions of
Order XV A of the Code. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 4253/2019

Dr.Vinod Rajeshwarrao Bhat  Vs Jawaharlal s/o Janardhan Chaturwedi @ Chhotu Pandit,

CORAM : A.S.CHANDURKAR, J.
DATED : 03.10.2019


Notice has been duly served on the respondent on 18.09.2019. The
proceedings were adjourned to grant one opportunity to the respondent to contest
the prayers made in the writ petition. There is no appearance on behalf of the
respondent. Hence the learned counsel for the petitioner has been heard by issuing
Rule and making the same returnable forthwith.
2. The petitioner is the original plaintiff who is aggrieved by the order
dated 28.03.2019 passed by the trial Court below Exhibit 26 rejecting the

application filed by the plaintiff-petitioner for striking out the defence of the
respondent-defendant.
3. The plaintiff-petitioner has filed suit for eviction of the respondent
under the provisions of Section 16 (1)(g) and (n) of the Maharashtra Rent Control
Act, 1999 ( for short, ‘the said Act’). It is his case that rent payable by the
respondent was Rs.1,300/- per month. As according to the petitioner the
respondent was a defaulter in paying the rent, during the pendency of the suit he
moved an application below Exhibit 26 praying therein that the defence as raised by
the respondent-defendant be struck off. The trial Court rejected that application
on the ground that no notice under Section 15(2) of the said Act was issued by the
petitioner. Reference was also made to an interim order passed in Writ Petition
No. 1702/2015 between the same parties.
4. Shri M.P.Khajanchi, learned counsel for the petitioner submitted that
there was no reason to issue any notice under Section 15(2) of the said Act.
Eviction of the respondent was sought on the ground of bonafide need and the
grievance was with regard to non-compliance with the provisions of Order XV A of
the Code of Civil Procedure, 1908 (for short, ‘ the Code’). Reference to the order
passed in Writ Petition No.1702/2015 was uncalled for as that writ petition arose
out of different suit between the same parties. Hence without properly considering
the facts of the case the application has been rejected.
5. The petitioner seeks eviction of the respondent under the provisions of
Section 16 (1)(g) and (n) of the said Act. If during the pendency of the suit the rent

in question is not being deposited, the plaintiff in a suit for eviction of the
defendant either with or without arrears of rent can take resort to the provisions of
Order XV A of the Code. It appears that the learned Judge of the trial Court has
taken into consideration the provisions of Section 15 (2) of the said Act which are
not at all attracted for the purposes of the present application. Secondly, Writ
Petition No. 1702/2015 arose out of a different suit between the same parties.
Even in that writ petition, the rent of Rs.1,300/- per month was directed to be paid.
In the application filed by the petitioner at para 3, it is stated that the defendant
had not paid anything despite such orders. It was therefore necessary for the trial
Court to have considered the application in the light of the provisions of Order XV A
of the Code. It is thus found that the impugned order has been passed without
proper consideration of the aforesaid provisions. The impugned order is therefore
liable to be set aside on that count.
6. Accordingly, the order dated 28.03.2019 passed below Exhibit 26 is set
aside. The trial Court is directed to re-consider that application and decide the same
in the light of provisions of Order XV A of the Code. Points raised in that regard are
kept open. The application be decided expeditiously. Rule is made absolute in
aforesaid terms. No orders as to costs.

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