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2001 DIGILAW 1165 (AP)

G. Srinivasa Rao v. Deepak Lal Idnani

2001-10-03

C.Y.SOMAYAJULU

body2001
C. Y. SOMAYAJULU, J. ( 1 ) 1st Respondent filed O. S. No. 428 of 2000 against the appellant and respondents 2 and 3 inter alia for eviction and arrears of rent to a tune of Rs. 85,900. 00, damages for use and occupation to a tune of Rs. 30,000. 00 and for future profits and filed I. A. No. 608 of 2000 seeking attachment of the movable properties lying in the shop of the appellant, and later filed LA. No. 40 of 2001, under Order XXXIX Rule 10 C. P. C. seeking a direction to the appellant and respondents 2 and 3 to deposit Rs. 2,05,900. 00. Appellant, on behalf of himself and respondents 2 and 3, filed a counter opposing the said petition. By the order under appeal, the trial Court directed the appellant and respondents 2 and 3 to pay rents from January, 2000 onwards till date of order on or before 10-08-2001 and also directed them to continue to pay the admitted rent of rs. 8,590/- per month on or before 15th of every month, and ordered that if they fail to do so, orders of attachment would be passed in I. A. No. 608 of 2000, and that 1st respondent can execute the order as if it was a decree. Aggrieved by the said order, this appeal is preferred by the 1st respondent-1st defendant in the trial Court. ( 2 ) RELYING on K. Bangarraju v. K. Hanumantha Rao Mr. G. Ramagopal, learned Counsel for the appellant contended that the order under appeal is beyond the scope and power given to the court under Order XXXIX Rule 10 C. P. C. , as the said Rule does not empower the court to direct arrears of rent to be deposited into the Court, and hence is liable to be set aside. ( 3 ) THE contention of Mr. T. S. Anand, learned Counsel for the 1st respondent, is that the appellant, who filed a petition seeking extension of time for deposit granted by the trial Court, cannot now question the order for deposit by way of appeal, and contended that Court has inherent power to order deposit of rents and so ordered deposit of admitted rent only and therefore appellant cannot be said to be aggrieved by the order under appeal. ( 4 ) IN reply Mr. ( 4 ) IN reply Mr. Ramagopal, relying on jagdish Lal v. Paramanand contended that the right of the appellant to file an appeal is not lost merely because he filed a petition seeking extension of time. ( 5 ) IN Jagdish Lal the tenant gave an undertaking to vacate before the High court, and subsequently filed an appeal before the Supreme Court. The Supreme court, was considering the question of maintainability of the appeal in such a case. Wadhwa, J. , held that it would be a moot question if the Court will exercise its discretion in granting leave to appeal. Thus, the question whether a tenant, who having voluntarily given an undertaking to vacate can approach the superior Court questioning the order of eviction passed, was not really decided by the Supreme court in the above case. Therefore, without detaining myself to consider the technical question of maintainability of the appeal, I am proceeding to decide the appeal on merits. ( 6 ) AS held in Bangarraju (supra) the provisions of Order XXXIX Rule 10 C. P. C. have no application to the facts of this case. Therefore, by virtue of Order XXXIX rule 10 C. P. C. , 1st respondent cannot be granted the relief sought in I. A. No. 40 of 2001. That by itself is not a ground to set aside the order under appeal, because, if under some other provision of C. P. C. the court has power to pass such an order, the order under appeal can be sustained, as it is well settled that merely because a wrong provision of law is quoted, a petition which is maintainable under some other provision, cannot be dismissed. ( 7 ) THE contention of the learned Counsel for 1st respondent, that if the order like the one under appeal is not passed, the landlord would be driven to the necessity of filing suits periodically for recovery of the rents due, and since it is likely that a considerably long time would be taken for disposal of the suit, 1st respondent would be put to the necessity of filing suits periodically for recovery of rent, has considerable force. More than 100 years back, when Transfer of Property Act was enacted, it might not have been contemplated that so many suits would be pending and that it would take several years, or decades, for the landlord to get back possession of the demised premises after evicting his tenant. So, no provision was made therein enabling the landlord to seek a direction to deposit rents during the pendency of the suit. In respect of buildings covered by the A. P. Buildings (Lease, Rent and Eviction) Control Act, Section 11 provides for a direction being given to the tenant to deposit arrears of rent, and rent during the pendency of the proceedings into Court, and the said Section also empowers the Rent Controller or the appellate authority to stop further proceedings and put the landlord in possession if the tenant were to fail to deposit the rent as ordered. In the prevailing circumstances of heavy pendency of suits in all Courts there seems to be a need for incorporating a provision like Section 11 of Rent Control Act in the transfer of Property Act also. Multiplicity of proceedings and suits can also be avoided by specifically empowering the courts to give such a direction. ( 8 ) THOUGH there is no specific provision empowering the Court to order a tenant in a suit for eviction, filed by the landlord seeking his eviction, to deposit rents into court during the pendency of the suit, the court in order to meet the ends of justice and to avoid multiplicity of proceedings, can make such an order under Section 151 c. P. C. , because there is no prohibition in any law debarring the Court from passing such an order. In fact this Court in Director of Census v. Pushpavathi and M/s. Hollywood restaurant v. V. S. Sesha Reddy held that under Section 151 C. P. C. the Court can order the defendant-tenant to deposit rents into Court when there is no dispute regarding the jural relationship of landlord and tenant and when arrears are admitted. In this case the jural relationship of landlord and tenant between the 1st respondent and appellant is admitted. The admitted rent is Rs. 8,590. 00 per month. Appellant admittedly did not pay or deposit rent from january, 2000 onwards. In this case the jural relationship of landlord and tenant between the 1st respondent and appellant is admitted. The admitted rent is Rs. 8,590. 00 per month. Appellant admittedly did not pay or deposit rent from january, 2000 onwards. For the reasons stated above, and also because of the ratio in Pushpavathi case and Holly Wood restaurant case, I find no grounds to interfere with the order under appeal directing the appellant to deposit arrears of rent and to deposit rents periodically in future. ( 9 ) THE other limb of the argument of the learned Counsel for the appellant is that the court below was in error in holding that in the event of the appellant not making the deposit as ordered it would pass an order of attachment in I. A. No. 608 of 2000. There appears to be force in the said contention. I. A. NO. 608 of 2000 has to be decided on merits of that petition. May be the appellant s failure to deposit the amount, as per the directions given by the order under appeal, is a ground for exercising such discretion, but in this petition the Court observing that it would pass orders in i. A. NO. 608 of 2000, if the appellant were to fail to make a deposit, may not be proper. So, that part of the order under appeal that attachment order would be passed in i. A. No. 608 of 2000 if the appellant fails to make the deposit as ordered is set aside. ( 10 ) IN the result, the appeal is allowed in part and the order of the Court below directing the appellant to make deposit of arrears of rent and future rents is confirmed, and the observation that an order of attachment would be passed in i. A. No. 608 of 2000 if deposit as ordered is not made, is set aside. The Court should dispose of LA. No. 608 of 2000 on its merits. ( 11 ) IT is stated that rent for August and september 2001 has been paid, and that rents from January 2000 to July 2001 are yet to be deposited into the trial Court. The Court should dispose of LA. No. 608 of 2000 on its merits. ( 11 ) IT is stated that rent for August and september 2001 has been paid, and that rents from January 2000 to July 2001 are yet to be deposited into the trial Court. Therefore, appellant is granted time till the end of November 2001 for depositing the arrears of rent from January 2000 to July 2001 into the trial Court, and he should continue to deposit rents for the future months into the trial Court on or before 10th of every month in advance, i. e. , the rent for the month of October 2001 should be deposited on or before 10-10-2001, rent for November, 2001 on or before 10-11-2001 and so on. If first respondent/plaintiff wants to withdraw the amount so deposited he can do so after paying the necessary Court Fee thereon. In the event of default in depositing the arrears of rent, respondent can execute the order as if it were a decree, after paying the necessary court fee. No costs.