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2010 DIGILAW 541 (AP)

Prakash Arts v. Mohammed Rafiuddin

2010-06-30

L.NARASIMHA REDDY

body2010
Judgment The respondent is the owner of an extent of Acs.4.03 guntas of land in survey No.181 of Shamshabad Village and Mandal, abutting the National Highway. The petitioner is an advertising agency. It approached the respondent to grant licence for erection of unipole hording on his land. Both of them, agreed for terms of licence, and through agreement, dated 11.03.2008, the consideration was agreed to be Rs.19 lakhs per annum payable in monthly instalments, after deducting the income tax at source. Enhancement thereof is provided at 5%, per annum. Disputes arose between the parties. The petitioner issued a notice, dated 10.04.2009, terminating the licence, on the ground that the visibility of the hording is seriously hampered. The respondent filed O.S.No.313 of 2009 in the Court of IV Additional District Judge, Ranga Reddy District, for declaration that the termination of the lease by the petitioner is untenable and for consequential benefit, such as, recovery of arrears of rents. He has also filed I.A.No.3532 of 2009, which has since been renumbered as I.A.No.212 of 2010, under Order XVA C.P.C., for a direction to the petitioner to deposit admitted arrears of licence fee and to pay the licence fee in future, according to the terms of agreement. A prayer was also made to the effect that, in case the petitioner commits default in payment of the amount, his defence may be struck off. The petitioner opposed the I.A. It raised an objection, as to the very maintainability of the I.A. Through its order, dated 13.04.2010, the trial Court allowed the I.A. Hence, this revision. Sri T.Surya Karan Reddy, learned counsel appearing for the petitioner, submits that Order XVA C.P.C., can be invoked, only in cases where a suit is filed for eviction of a tenant, lessee or licencee, and in the instant case, it is not even pleaded that the petitioner is in possession or enjoyment of any property held by the respondent, on lease, or licence. He contends that the pleadings in the plaint and the averments made in the affidavit filed in support of the I.A., clearly demonstrate that the licence stood terminated unilaterally, and in that view of the matter, there does not exist any occasion to invoke Order XVA C.P.C. Sri R.A.Atchuthanand, learned counsel for the respondent, on the other hand, submits that the application was filed by invoking the analogy and the principle underlying Order XVA and Section 151 C.P.C. and once the relationship of the parties as a licenser or licensee is not disputed, no exception can be taken to the filing of I.A. He contends that the trial Court has undertaken a detailed discussion in dealing with the contentions advanced by both the parties and has arrived at a just and proper conclusion. The petitioner was granted licence to erect unipole hording in part of the land owned by the respondent. There is no dispute that the terms of licence were reduced into writing, and that on the strength of the same, not only a unipole hording was erected, but also licence fee as agreed to was paid till September, 2008. Disputes arose and correspondence ensued mainly, on the ground that the visibility of the hording is obstructed and that is no longer remunerative for the petitioner. The agreement was terminated by the petitioner through a written communication. The respondent filed the suit for a declaration that the said communication is illegal, and for consequential remedy. The respondent filed I.A.212 of 2010 under Order XVA and Section 151 C.P.C., with a prayer to direct the petitioner herein to pay admitted arrears of licence fee from October, 2008, till the date of filing of I.A., with periodical enhancements. In all, a sum of Rs.16,07,083/- was claimed, with a prayer to strike off the defence of the petitioner, in case the amount is not paid. After hearing both the parties, the trial Court allowed the I.A. The question that arises for consideration in this revision is, as to whether the I.A., filed by the respondent under Order XVA C.P.C., is maintainable, in the facts and circumstances of the case. Order XVA is a special provision, which is introduced into C.P.C., through an amendment caused by the High Court of Andhra Pradesh. Order XVA is a special provision, which is introduced into C.P.C., through an amendment caused by the High Court of Andhra Pradesh. The provision reads as under: “Striking off defence in a suit by a lessor: (1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesne profits from him, the defendant shall deposit such amount as the court may direct on account of arrears up to the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the court may direct. The defendant shall, unless otherwise directed, continue to deposit such amount till the decision of the suit. In the event of any default in making the deposits, 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 from an order striking off the defence. (3) The amount deposited under this rule shall be paid to the plaintiff lessor or licensor or his Advocate and the receipt of such amount shall not have the effect or prejudicing the claim of the plaintiff and it shall not also be treated as a waiver of notice of termination.” From a reading of the provision, it becomes clear that it is intended to protect the interests of the owner, lessor or licensor of an immovable property, whenever proceedings are initiated for eviction of the tenant, lessee or licensee. The necessity for incorporating that provision arose, on account of the fact that in suits filed for eviction of the tenants or licensees of whatever description, payment of rent or licence fee was not being made, taking advantage of the very pendency of the suit. Section 151 was found to be inadequate to clothe the Court with the power to pass necessary orders. Section 151 was found to be inadequate to clothe the Court with the power to pass necessary orders. Therefore, Order XVA C.P.C., was added, which empower the Court to pass orders directing deposit of rent or licence fee by the defendant in a suit for eviction. The power is also conferred on the Court to decide the dispute as to the quantum of rent, though for the limited purpose of the I.A. In case the rent or licence fee, as directed by the Court, is not deposited, the defendant is exposed to the forfeiture of defence. There is no dispute that the petitioner was the licencee of the respondent. This fact would certainly have clothed the trial Court to entertain an application under Order XVA C.P.C., and to issue directions for payment of arrears of licence fee with threat of forfeiture of defence, in the event of default in payment of rent, or licence fee. However, another basic and important factor is that the suit must be filed for the relief of eviction. That, in turn, presupposes the continued existence of lease or licence. In the instant case, it is a matter of record that the petitioner terminated the lease. The legality, or otherwise of such termination, is the very issue in the suit. The prayer itself is for declaration of the termination of lease, as illegal and untenable. More than all that, there is no prayer in the suit for eviction of the petitioner. Therefore, the very basis, or foundation, for invoking Order XVA C.P.C., is lacking. An attempt is made to justify the application by stating that it was filed on the analogy. When the said provision is invoked and a prayer in terms thereof is clearly made, it is too difficult to accept the contention that, only analogy was invoked and not the provision as such. Further, if the facts of the case do not warrant any relief in terms of a specific provision, one cannot expect that very relief by drawing analogy. Viewed from any angle, the application submitted by the petitioner does not fit into Order XVA C.P.C. Across the Bar, it is brought to the notice of this Court that the licence fee payable up to the date of cancellation of the licence i.e. 10.04.2009, is deposited into the Court. Viewed from any angle, the application submitted by the petitioner does not fit into Order XVA C.P.C. Across the Bar, it is brought to the notice of this Court that the licence fee payable up to the date of cancellation of the licence i.e. 10.04.2009, is deposited into the Court. If that be so, the respondent shall be entitled to withdraw the same without furnishing any security. Hence, the C.R.P. is allowed and the order under revision is set aside. The respondent, however, is permitted to withdraw the licence fee deposited up to 10.04.2009, without furnishing any security. There shall be no order as to costs.