Whether landlord can execute order of grant of interim rent even though defence of tenant is struck off?

 The impugned order was passed by the Court under Order 15-A of the Code of Civil Procedure directing the defendant to pay rent and deposit arrears. No fault can be found with such a direction. In this case, the defendant failed to obey the order and failed to deposit the arrears. The consequence of such failure is given in the same Rule 1 of Civil Procedure Code. The Rule says that if such order is not obeyed, the defence shall be struck out. The learned Counsel for the applicant/plaintiff contended that striking out of defence is a mode of enforcement while execution by attachment is mode of satisfaction. In 1999 (1) SCC 405, Smt. Kuldip Kaur v. Surinder Singh, it is observed as follows:

6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.

6. Therefore, even though the remedy by way of striking out of defence is available, that does not deprive the plaintiff to resort to mode of satisfaction. Ordinarily, therefore, an order can be executed for satisfaction. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

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Whether interim order can be executed after suit or appeal has come to an end?

Still, however, it has to be seen whether any interim order in any suit or appeal can be executed after the suit or appeal has come to an end. The law is well settled that when main lis comes to an end, all interim orders merge into that final order. Once, those interim orders merge into that final order, the interim order cannot be executed. To my mind, the interim orders do not survive once the main lis is decided by Court and no more remains executable. Here, the suit itself is dismissed hence none of the orders passed in the suit could be said to have" survived. This order, therefore, to my mind is not executable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: 2007(4) MHLJ 698,2007(3) ALLMR 544

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Whether licensee can be directed to deposit licence fee during eviction proceeding?

This decision was expressly overruled by the Division Bench which held that the court had such a power under Section 151, Civil P.C. The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and occupation of their premises while the landlord is required to meet his responsibilities and liabilities. The process of the court over which neither the landlord nor the tenant defendant has any control cannot be allowed to be abused and work to the detriment of a person. If it is capable of resulting in harm, then the Courts are not powerless to make orders so as to mitigate that harm. By parity of reasoning, in cases between a licensor and licensee also a similar order can be passed. Such orders as between a lessor and lessee are now expressly permitted under Order XVA, Civil P.C. By analogy, similar orders can be passed in cases between licensor and licensee also.

15. Learned Judges of the Division Bench in the above case also relied upon Order XXXIX, Rule 10, Civil P.C. in support of their decision. They held that in the case of a landlord and tenant, the tenant cannot dispute his liability to pay the rent to the landlord although the quantum of such rent may be in dispute. The Division Bench held that in such cases the tenant, in fact, is deemed to admit that some money is due to the plaintiff. In such a situation the court can direct the tenant to deposit such amount as the court may deem fit under Order XXXIX Rule 10. The same reasoning applies to a case between licensor and licensee also. The licensee can be similarly directed to deposit certain amounts in respect of licence fees or mesne profits under the provisions of Order XXXIX Rule 10 in view of the Division Bench of this court in the above case.

IN THE HIGH COURT OF BOMBAY

Writ Petn. No. 3870 of 1984

Decided On: 03.05.1985

Sangeeta Prints Vs Hemal Prints and Ors.

Hon'ble Judges/Coram:

S.V. Manohar, J.

Citation: AIR 1986 423

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Whether eviction decree can be passed against tenant who is paying arrears of rent as per direction given by court under O15A R 1 of CPC?

As regards the submission that by complying with the
directions issued under provisions of Order 15A Rule 1 of the
Code the tenant was not liable to be evicted, it is to be noted that
under the provisions of Section 15(3) of the said Act within a
period of 90 days from the date of service of summons, the tenant
is required to pay in Court the amount of standard rent and
permitted increases along with simple interest on the amount of
arrears at 15% p. a.  The order passed under provisions of Order
15A Rule 1 of the Code is dated 18.08.2010, while the suit was
filed on 08.08.2008.  Hence, after period of 90 days from service
of summons the requirements of Section 15(3) of the said Act
were not duly complied with.   It is also necessary to note that
under provisions of Order 15A Rule 3 of the Code,   deposit of
amounts under this provision do not have the effect of prejudicing
the claim of the plaintiff and its receipt by the plaintiff cannot betreated as a waiver of notice of termination.  In the light of this
clear   provision,   the   claim   of   the   plaintiff ­landlord   cannot   beprejudiced by such deposit.  It is also to be noted that provisions
of   Section   15(3)   of   the   Act   require   the   tenant   to   voluntarily
deposit  the  amounts referred to therein  and it  is not  for  the
landlord in a suit for eviction to call upon the tenant to deposit all
arrears after such suit is filed.   On the contrary the same would
reflect on the conduct of the tenant in firstly not depositing the
arrears   as   required   under   Section   15(3)   of   the   said   Act   and
secondly, such deposit at the instance of the landlord cannot have
the effect of prejudicing the case of the landlord himself.  On the
contrary,   accepting   said   submission   would   have   the   effect   of
granting premium to the tenant who is in arrears of rent. Hence,
it is held that in the facts of the present case due compliance with
provisions of Order 15A  Rule 1 of the said Code would not have
the effect of wiping out the arrears of rent so as to avoid the
decree for eviction.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT    PETITION     NO.   1639     OF     2014
Prabhakar Venkobaji Manekar,

VERSUS
Surendra Dinanath Sharma,

CORAM:   A. S. CHANDURKAR  J.
                         
                             Dated    :   FEBRUARY  12, 2015.
Citation; 2015(4) MHLJ351Bom

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