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Andhra High Court · body

2008 DIGILAW 948 (AP)

A. Manimanjari v. P. Bhaskara Rao

2008-11-06

G.YETHIRAJULU

body2008
ORDER These Revision Petitions have been filed by the plaintiff against the common order, dated 8-9-2008 in I.A. Nos. 1052, 1051 and 1053 of 2008 on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. 2. Since all the Revision Petitions are filed by the same parties against the common order, they are clubbed and this common order is passed. 3. I.A. No. 1051 of 2008 was filed by the defendant under Section 151 of C.P.C. to reopen the suit to receive the petition filed by the defendant to comply the orders in I.A. No. 1030 of 2007. I.A. No. 1052 of 2008 was filed by the defendant to restore the strike off defence of the defendant and to permit him to adduce evidence for proper adjudication in the suit. I.A. No. 1053 of 2008 was filed by the defendant under Section 148 of C.P.C. to enlarge time by 265 days in complying the order in I.A. No. 1030 of 2007, dated 16-11-2007. 4. The common averments of the defendant in all the Applications are briefly as follows: The plaintiff filed the suit for eviction against the defendant. While so, a conditional order was passed in I.A. No. 1030 of 2007 against the defendant to pay arrears of rent, which was not complied. Subsequently, the plaintiff filed I.A. No. 221 of 2008 to strike off the defence of the defendant in the suit and the same was allowed. Subsequently, the defendant filed I.A. No. 824 of 2008 to permit him to deposit admitted rents from June, 2006 and that Application was allowed. The defendant filed I.A. No. 937 of 2008 to enlarge the time to comply the conditional order passed in I.A. No. 1030 of 2007 and the same was dismissed with an observation that as the defendant failed to comply the order passed in I.A. No. 824 of 2008 for non-depositing the admitted rents. Unless the defence of the defendant is restored, he will not be able to present the true facts and the delay was already explained in I.A. No. 937 of 2008. Hence, these petitions for the reliefs as mentioned above. 5. A common counter was filed by the respondent-plaintiff in all the petitions denying the allegations made in the petition and contended that the petitions are not maintainable, as they are barred by res judicata. Hence, these petitions for the reliefs as mentioned above. 5. A common counter was filed by the respondent-plaintiff in all the petitions denying the allegations made in the petition and contended that the petitions are not maintainable, as they are barred by res judicata. As the present Applications are repeating the same facts of the earlier Applications, which were dismissed, they cannot be entertained as it amounts to abuse of process of law and miscarriage of justice. The defendant is enjoying the suit premises without paying any rent, which will cause great prejudice to the plaintiff. The earlier Application covered by I.A. No. 1030 of 2007 went upto supreme Court and the petitioner lost in the courts. Again he filed the present Applications for the same reliefs which were already rejected previously, therefore, the Applications are liable to be dismissed. 6. The lower Court, after considering the arguments advanced by both parties, allowed the Applications with a condition that the defendant shall deposit all the arrears of rent from March, 2005 till date @ Rs.5,500/per month into the Court on or before next hearing date, falling which the petitions stand dismissed. Being aggrieved by the said order, the plaintiff preferred the present Revision Petitions. 7. The plaintiff filed the suit for eviction of the respondent. There is no dispute that the plaintiff is the owner of the property and it was let out to one Jaganmohan Rao in the year 2000 when he represented that he is a film producer and wants to set up his production office at the petition schedule property on a monthly rent of Rs.5,500/- per month. He died in an accident in the year 2002. Thereafter, the defendant is claiming to be the partner of the said Jaganmohan Rao and continued to run the production office at the petition schedule property. The petitioner was made to believe the representation of the defendant and allowed to continue his office and received the rents. The allegations against the defendant are that he was irregular in payment of rents. It is contended that one Sivakumar Reddy used to receive the rents from the tenant who is irregular in payment of the rent. The petitioner was made to believe the representation of the defendant and allowed to continue his office and received the rents. The allegations against the defendant are that he was irregular in payment of rents. It is contended that one Sivakumar Reddy used to receive the rents from the tenant who is irregular in payment of the rent. The plaintiff as well as Sivakumar Reddy demanded the defendant several times to vacate the petition schedule property and the defendant has been promising them to vacate the same for the last 6 months and failed to pay arrears of rent. The plaintiff filed I.A. No. 1030 of 2-007 requesting the Court to direct the defendant to deposit Rs.60,500/- being arrears of the rent for use and occupation of the petition schedule property and continue to deposit every month a sum of Rs.5,500/- towards damages for use and occupation. The lower Court, after considering the contentions raised' by both parties, allowed the Application through the order, dated 16-11-2007 directing the defendant to deposit an amount of Rs.60,500/- into the Court being the amount payable by him to the petitioner and also directed to deposit every month a sum of Rs.5,500/- from Febraury, 2006 within 15 days from the date of the order until further orders for use and occupation of the petition schedule property. Against the said order, the defendant preferred C.R.P. No. 1269 of 2008 before the High Court and this Court dismissed the Revision Petition by observing that there are no grounds to interfere with the plaintiff is the owner of the property and it was let out to one Jaganmohan Rao in the year 2000 when he represented that he is a film producer and wants to set up his production office at the petition schedule property on a monthly rent of Rs.5,500/- per month. He died in an accident in the year 2002. Thereafter, the defendant is claiming to be the partner of the said Jaganmohan Rao and continued to run the production office at the petition schedule property. The petitioner was made to believe the representation of the defendant and allowed to continue his office and received the rents. The allegations against the defendant are that he was irregular in payment of rents. It is contended that one Sivakumar Reddy used to receive the rents from the tenant who is irregular in payment of the rent. The petitioner was made to believe the representation of the defendant and allowed to continue his office and received the rents. The allegations against the defendant are that he was irregular in payment of rents. It is contended that one Sivakumar Reddy used to receive the rents from the tenant who is irregular in payment of the rent. The plaintiff as well as Sivakumar Reddy demanded the defendant several times to vacate the petition schedule property and the defendant has been promising them to vacate the same for the last 6 months and failed to pay arrears of rent. The plaintiff filed I.A. No. 1030 of 2-007 requesting the Court to direct the defendant to deposit Rs.60,500/- being arrears of the rent for use and occupation of the petition schedule property and continue to deposit every month a sum of Rs.5,500/- towards damages for use and occupation. The lower Court, after considering the contentions raised' by both parties, allowed the Application through the order, dated 16-11-2007 directing the defendant to deposit an amount of Rs.60,500/- into the Court being the amount payable by him to the petitioner and also directed to deposit every month a sum of Rs.5,500/- from Febraury, 2006 within 15 days from the date of the order until further orders for use and occupation of the petition schedule property. Against the said order, the defendant preferred C.R.P. No. 1269 of 2008 before the High Court and this Court dismissed the Revision Petition by observing that there are no grounds to interfere with the order passed by the lower Court and directed the lower Court to dispose of the case within six months from the date of receipt of copy of the order. Against the said order, the defendant carried the matter to the Supreme Court and the Supreme Court dismissed the Special Leave Petition vide S.L.P.(Civil).No, 16369 of 2008, through the order, dated 25-7-2008. During the pendency of the Revision in the High Court, the plaintiff filed I.A. No. 221 of 2008 under Section 15 (a) read with Section 151 of C.P.C. requesting the Court to strike of the defence of the defendant in the suit for non-compliance of the order of the lower Court, dated 16-11-2007. The said Application was allowed by striking of the defence of the defendant. The said Application was allowed by striking of the defence of the defendant. Subsequent to the disposal of the Special Leave Petition before the Supreme Court, the Applications were filed before the lower Court for the reliefs as mentioned above. 8. The lower Court, while observing that the respondent-defendant failed to comply the directions given by the Court, allowed the Applications only on the ground that the defendant himself approached voluntarily to permit him to deposit the rent and to proceed with the matter by which it will reduce multiplicity of proceedings and in view of the circumstances that res judicata has no application to the I.A. which may not cause any prejudice to the plaintiff, the lower Court allowed the Applications subject to the condition that the defendant shall deposit all the arrears of rent from March, 2005 till date @ Rs.5,500/- per month, failing which the petitions shall stand dismissed. 9. The petitioner is contending that the lower Court ought t0 have observed that when once the defence is struck off, it finally terminates the right of the defendant to dispute the suit claim, therefore, the order striking off the defence is not interlocutory one and it is final order; that though the principle of res judicata is not applicable to the interlocutory orders, the orders would not be altered without change of circumstances; that when the defendant pursued his remedies upto the Supreme Court and failed and as the impugned order has the effect of nullifying the order of the Superior Court without any change of circumstances, the lower Court ought to have dismissed the Applications; that the suit is not only for ejectment, but also for recovery of damages for use and occupation, therefore, the order is liable to be set aside. 10. In the light of the contentions of the parties, the point for consideration is: Whether the common order of the lower Court is liable to be set aside? 11. The plaintiff filed the suit for eviction and recovery of damages. While the suit is pending, he filed I.A. No. 1030 of 2007 requesting the Court to direct the defendant to deposit Rs.60,500/- towards arrears of damages and continue to pay Rs.5,500/- per month. The said Application was allowed directing the defendant to deposit the arrears of damages within 15 days from the date of the order, but the order was not complied with. The said Application was allowed directing the defendant to deposit the arrears of damages within 15 days from the date of the order, but the order was not complied with. Being aggrieved by the same, the defendant preferred C.R.P. No. 1269 of 2007 and the same was dismissed. The Special Leave Petition carried to the Supreme Court was also dismissed. During the pendency of the Revision Petition, the plaintiff filed I.A. No. 221 of 2008 to strike off the defence for non-compliance of the order of the Court. The Court allowed the said Application by striking off the defence of the defendant. The defendant filed I.A. No. 937 of 2008 to enlarge the time to comply the conditional order passed in I.A. No. 1030 of 2007 and the same was dismissed with an observation that the defendant failed to comply the orders in another I.A. when he was permitted to pay the arrears of admitted rents. Once again, the defendant filed the present Applications for the reliefs as mentioned above. 12. The order in I.A. No. 1030 of 2007 was not complied with and failed to pay the arrears of admitted rents. The lower Court, while observing that the defendant committed repeated defaults in complying with the conditions imposed by the Courts, allowed the Application only on the ground that the defendant voluntarily came forward to deposit the amount, which is likely to reduce the multiplicity of proceedings. 13. After going through the entire material, I am convinced that the common order passed by the lower Court is on misgiving sympathy and there are no justifiable grounds for the petitioner to offer deposit of rent at the belated stage after losing battles at all levels. In the light of the above circumstances, the common order passed by the lower Court cannot be sustained and the same is liable to be set aside. 14. Accordingly, all the Revision Petitions are allowed. The common order passed by the lower Court, dated 8-9-2008 is set aside. No order as to costs.