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2012 DIGILAW 2296 (BOM)

Ashok Ramnath Acharya v. Raj Bhandare

2012-12-07

F.M.REIS

body2012
Judgment: Heard Shri D. Pangam, learned counsel appearing for the petitioner and Shri A. D. Bhobe, learned Counsel appearing for the respondent no.1. Respondent no.2 though served failed to remain present. 2. The above petition challenges an order dated 08.08.2011 passed by the learned Civil Judge Junior Division, Panaji, under Order XV A of the Civil Procedure Code whereby an application filed by the petitioner to direct the respondent no.1 to deposit the licence fees of Rs.30,000/- came to be rejected. 3. During the course of the hearing of the above petition, Shri Pangam, learned counsel appearing for the petitioner has pointed out that the learned Judge whilst passing the impugned order at para 7 of the impugned order has non suited the petitioner to direct the respondent no.1 to deposit a sum of Rs.30,000/-on the ground that there was no material on record to substantiate the contention of the petitioner that the licence fees of Rs.30,000/- per month was agreed to be paid by the respondent no.1 to the petitioner. Shri Pangam, learned Counsel pointed out that the petitioner in support of his contention has also inter-alia produced the plaint filed by the respondent no.1 in Regular Civil Suit No. 8/2008/A and has taken me through the said plaint at paras 6, 7, 10, 15, 17 and 18 and pointed out that there was specific admission on the part of the respondent no.1 that an amount of Rs.30,000/-was in fact paid to the petitioner. The learned counsel further pointed out that on the basis of material on record, there was specific material to substantiate that the amount payable on account of occupation of the premises by respondent was sum of Rs.30,000/-per month. The learned counsel has pointed out that respondent no.1 has also raised objection to the application on the ground that the suit filed by the petitioner was not for eviction and as such, the question of directing such payment under Order XV A of CPC would not arise. But however, the petitioner has already amended the plaint and prayer for eviction of the respondent. 4. On the other hand, Shri A. D. Bhobe, learned Counsel appearing for the respondent no.1 has pointed out that such material was not brought to the notice of the learned Judge whilst passing the impugned order. But however, the petitioner has already amended the plaint and prayer for eviction of the respondent. 4. On the other hand, Shri A. D. Bhobe, learned Counsel appearing for the respondent no.1 has pointed out that such material was not brought to the notice of the learned Judge whilst passing the impugned order. The learned counsel also pointed out that the application itself was not maintainable as there is no prayer for eviction. The learned counsel further pointed out that the respondent no.1 has paid the amount for occupying the premises on the basis of the subsequent agreement between the petitioner and respondent no.1 and as such, the question of depositing any amount at the instance of the respondent no.1 would not arise. The learned Counsel also points out that the respondent no.1 disputes that he is liable to pay Rs.30,000/-as claimed by the petitioner. 5. I have duly considered the submissions of the learned counsel and I have also gone through the records. No doubt, Order XV A of CPC inter-alia gives right to the party to direct the deposit of licence fees/rent in cases in which a suit is filed for eviction nevertheless taking note of the contention of Shri Pangam, the learned counsel that an amendment has already been carried out in the plaint and a relief has already been sought by the petitioner for eviction, the objection of Shri Bhobe, learned Counsel on that count would not survive. 6. Be that as it may, taking note of the contention of Shri Pangam, learned Counsel appearing for the petitioner that the learned Judge has not considered the said material on record whilst passing the impugned order and in the interest of justice, I find it appropriate that the impugned order passed by the learned Judge be quashed and set aside and the learned Judge be directed to decide the application under Order XV A of CPC afresh after hearing the parties in accordance with law. Shri Pangam, learned counsel appearing for the petitioner is justified to contend that the learned Judge has erroneously come to the conclusion that there was no material produced by the petitioner with regard to the quantum of the amount paid by the respondent no.1 to the petitioner. The objection of Shri Bhobe, learned counsel would have to be dealt with whilst disposing of such application. The objection of Shri Bhobe, learned counsel would have to be dealt with whilst disposing of such application. Keeping all the contentions of the parties on merits with regard to the said application open, I find it appropriate that the impugned order be quashed and set aside and the learned Judge be directed to decide the application under Order XV A of CPC afresh after hearing the parties in accordance with law. 7. In view of the above, I pass the following : ORDER (i) The impugned order dated 08.08.2011 is quashed and set aside. (ii) The learned Judge is directed to decide the application under Order XV A of CPC afresh after hearingthe parties in accordance with law as expeditiously as possible. (iii) All contentions of the parties on merits in respect of the said application are left open. (iv) Rule is made absolute in above terms. (v) The petition stands disposed of accordingly.