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2011 DIGILAW 435 (AP)

K. Zakria Shaik v. K. Saleem Basha

2011-06-15

L.NARASIMHA REDDY

body2011
Judgment : 1. The respondent is the owner of a non-residential premises at Kurnool Town. The said premises was leased to the petitioner. Initially, the ground floor was leased and the rent thereof is fixed at Rs.9,900/- per month. The respondent filed O.S.No.36 of 2009 in the Court of Additional Seniors Civil Judge, Kurnool, against the petitioner, for the relief of recovery of arrears of rent to the tune of Rs.6,68,290/-covering various periods. He has has also filed I.A.No.858 of 2009 under Order 15-A of C.P.C. with a prayer to direct the petitioner to pay the arrears of rent and continue to deposit the rent every month and in default, to strike off the defence. In the statement enclosed to the petition, the respondent mentioned that a sum of Rs.6,67,890/-is required to be deposited as arrears. 2. The petitioner filed a counter affidavit, opposing the application. According to him, the entire first floor was constructed with his funds and the account thereof is yet to be settled. The various transactions that are said to have taken place between them are also mentioned. Through its order, dated 22.11.2010, the trial Court allowed the I.A. Hence, this civil revision petition. 3. Sri B. Narasimha Sarma, learned counsel for the petitioner submits that the trial Court virtually decreed the suit through its order in the I.A. He contends that it is only the undisputed arrears of rent that can be required to be deposited through an order in an application filed under Order 15-A of C.P.C. He further submits that whatever be the justification for directing that the arrears of rents be paid from the date of filing of the suit, it was not at all competent for the trial Court to direct deposit of the rents, for the period earlier thereto. 4. Sri T.S.Anand, learned counsel for the respondent on the other hand submits that there is no dispute that the petitioner did not pay any rents for the past several years and that the trial Court directed the payment of the said arrears. He further submits that the very purpose underlying Order 15-A of C.P.C. is to ensure that the rents that are due up to the date of filing of the application are recovered from the defendant, as a condition precedent, for his participation in the suit. 5. The suit was filed for recovery of arrears of rent. He further submits that the very purpose underlying Order 15-A of C.P.C. is to ensure that the rents that are due up to the date of filing of the application are recovered from the defendant, as a condition precedent, for his participation in the suit. 5. The suit was filed for recovery of arrears of rent. There is no dispute as to the existence of lease between the parties. While the respondent pleaded that the rents for a particular period were not paid and arrears have accumulated to the tune of Rs.6,68,290/-, the petitioner stated that the expenditure incurred by him for construction of the first floor is yet to be adjusted. 6. An application was filed under Order 15-A of C.P.C. In its application to the State of Andhra Pradesh, the Rule reads as under: (1) In a suit for recovery of possession, on termination of lease, or licence, with or without a prayer for recovery of arrears of rent, or licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated upto that due into the Court and shall continue to deposit such amount, which becomes payable thereafter within one week from the date on which it becomes due till the judgment is rendered in the suit. (2) Wherever the defendant pleads in the written statement that no arrears of rent or licence fee exists, it shall be competent for the Court to pass an order in this regard, after affording opportunity to both the parties, and in case any amount is found due, the defendant shall be under obligation to deposit the same, within the time stipulated by the Court and continue to deposit the amount which becomes payable thereafter as provided under Rule 1: Provided that the time stipulated for payment of amount, as aforesaid, may be extended by the Court for reasons to be recorded for a period not exceeding 15 days. If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence. On such deposit it shall be competent for the plaintiff to withdraw the same. If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence. On such deposit it shall be competent for the plaintiff to withdraw the same. Explanation:- the expression “the amount representing the undisputed arrears” shall mean the sum of rent, or licence fee calculated for the period for which it remained unpaid, after deducting from it any amount: (a) paid as tax, to a local authority, in respect of the property, (b) paid to the plaintiff under written acknowledgment, and (c) deposited into the Court, in any proceedings, in relation to the said property”. 7. This provision came into force with effect from 2005. The purpose underlying the provision is to ensure that the owner of the premises leased to the defendant in a suit pays the rents regularly, together with arrears, if any. The word “undisputed” occurring before the word “arrears”, assumes significance. If there is a dispute as to the quantum, the Court has to decide the same, duly taking into account, the versions put forward by the parties. In this regard, slightly different approach is needed in respect of a suit in which recovery of arrears is prayed for, as one of the reliefs on the one hand and a suit for eviction simplicitor on the other hand. If the defendant opposes the claim in the suit, as to arrears, the adjudication thereof must take place after trial. An application under Order 15-A of C.P.C. is not the proper mechanism to recover the suit amount, if seriously disputed by the defendant. Under the garb of seeking relief under that provision, plaintiff in a suit cannot pray for recovery of the entire amount, which incidentally is claimed in the suit itself. In such an event, the suit comes to be virtually decreed to that extent without trial, but through an order under Order 15-A of C.P.C. 8. If the arrears existed from the date of filing of the suit, a direction can certainly be issued for deposit thereof in an application filed under Rule 15-A of C.P.C. Any direction for deposit of arrears prior to the date of filing of the suit can be issued, only when there is no dispute. If the arrears existed from the date of filing of the suit, a direction can certainly be issued for deposit thereof in an application filed under Rule 15-A of C.P.C. Any direction for deposit of arrears prior to the date of filing of the suit can be issued, only when there is no dispute. If there is divergence of opinion between the parties as to the quantum or liability, the determination thereof has to be relegated to a subsequent stage and a finding has to be given after trial. An exercise contemplated under Order 15-A of C.P.C. is totally inadequate and unsuited for final determination of the arrears of rent for the period anterior to the date of fling of the suit. 9. In the instant case, the petitioner pleaded that he incurred expenditure for constructing the first floor. The dispute in this behalf can be resolved after trial. Therefore, the directions issued by the trial Court for payment of the entire amount of Rs.6,68,290/-, which is claimed in the suit is untenable in law. 10. There is no dispute that the rents are not being paid from the date of filing of the suit. It is represented by both the parties that the said amount, together with the undisputed rents would come roughly to Rs.2,50,000/-. The same can be directed to be deposited in addition to the monthly rents from time to time. 11. Hence, the Civil Revision Petition is partly allowed, modifying the order under revision to the effect that the petitioner shall be under obligation to pay arrears of rent of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) within eight (8) weeks from today and that he shall be under obligation to pay rent at the rate of Rs.15,900/-(Rupees Fifteen Thousand Nine Hundred Only) on or before 10th of every month commencing from July 2011. As and when the amount is deposited, the respondent shall be entitled to withdraw the same without furnishing any security. There shall be no order as to costs.