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2020 DIGILAW 770 (AP)

P. Praveen v. V. Suseela

2020-12-04

M.GANGA RAO

body2020
ORDER : 1. The petitioner is the plaintiff and tenant, in a suit for injunction against the landlady, filed this Civil Revision Petition under Article 227 of the Constitution of India to set aside the order dated 22.07.2019 in I.A. No. 665 of 2018 in O.S. No. 289 of 2018 passed by the IV Additional District Judge, Tirupathi, wherein the petition filed by the respondent/ defendant under Order XV-A read with Section 151 of the Code of Civil Procedure, 1908 for deposit of arrears of rent was allowed directing the petitioner/plaintiff to deposit rents as per the terms and conditions of registered lease deed dated 02.04.2016 from the registered notice dated 24.07.2018 issued by the defendant till date within one month from the date of the order, as being illegal, arbitrary and contrary to the provisions of Order XV-A CPC without jurisdiction. 2. For the sake of convenience the parties hereinafter called as arrayed in the suit before the trial Court. 3. The plaintiff filed the suit for permanent injunction restraining the defendant, her agents, servants or any body on her behalf in any way from interfering with the plaintiff’s peaceful possession and enjoyment and running the hotel business under the name and style of PAWAN PALACE either by trespass or by forcible dispossession or in any other manner unknown to law, until the plaintiff is duly evicted under due process of law and for direction to the defendant to pay the costs of the suit along with I.A. No. 583 of 2018 for ad-interim injunction and the injunction was granted by the trial Court. When the suit is coming for filing written statement, the defendant filed a petition under Order XV-A read with Section 151 CPC to direct the plaintiff to pay arrears of rent from 02.08.2017 to 01.04.2018 for a period of nine months at the rate of Rs. 1,80,000/- comes to Rs. 16,20,000/- from 02.04.2018 to till filing of the petition, for a period of 7 months at the rate of Rs. 2,30,000/- comes to Rs. 16,10,000/- total arrears of rent of Rs. 32,30,000/- and further direct him to continue to pay the admitted future rent at the rate of Rs. 2,30,000/- from 02.11.2018 onwards till the disposal of the suit in terms of registered lease deed. 2,30,000/- comes to Rs. 16,10,000/- total arrears of rent of Rs. 32,30,000/- and further direct him to continue to pay the admitted future rent at the rate of Rs. 2,30,000/- from 02.11.2018 onwards till the disposal of the suit in terms of registered lease deed. The plaintiff filed counter denying the averments made in the affidavit filed in support of the petition, specifically stating that the plaintiff is not liable to pay rent from 02.08.2017 to 01.04.2018 for a period of nine months at the rate of Rs. 1,80,000/- per month amounting to Rs. 16,20,000/- and the plaintiff is not liable to pay the enhanced rent from 02.04.2018 till date, for a period of 7 months, a total sum of Rs. 16,10,000/- and the calculation is totally wrong and misleading. The plaintiff is not in arrears of payment of rent of Rs. 32,30,000/- as alleged. The plaintiff filed the suit on 01.11.2018. The plaintiff has paid the rents up to the end of September, 2018 and rents from October, 2018 alone is payable and in view of the damages and other atrocities committed by the defendant and her people the rent was not paid, as the defendant damaged properties worth Rs. 1,50,00,000/-. The plaintiff reserves his right to claim damages. The Trial Court, without conducting any enquiry, allowed I.A. No. 665 of 2018 in part, directing the plaintiff to deposit rents as per the terms and conditions of registered lease deed dated 02.04.2016 from the registered notice dated 24.07.2018 issued by the defendant till date within one month from the date of the order, holding that initially agreed rent between the parties as per the lease agreement dated 02.04.2016 was Rs. 1,80,000/- the defendant admittedly issued a notice dated 24.07.2018 to the plaintiff through her counsel and admittedly the plaintiff did not pay the rent after issuance of the said notice. Whether the defendant is entitled for the rents from 02.08.2017 onwards as sought by her, can only has to be considered after evidence let in by both the parties. The contention of the plaintiff that the defendant agreed to receive rent at the rate of Rs. 60,000/- also has to be decided after both parties let in oral and documentary evidence. 4. Sri. The contention of the plaintiff that the defendant agreed to receive rent at the rate of Rs. 60,000/- also has to be decided after both parties let in oral and documentary evidence. 4. Sri. Srinivasulu Kurra, learned counsel for the petitioner/plaintiff would contend that the court below passed the order under revision without jurisdiction and contrary to the provisions of Order XV-A CPC. The provisions of Order XV-A CPC, enables the lessor to file application in the lessor’s suit filed for eviction and recovery of possession or recovery of arrears of rent, but not in the suit filed by the plaintiff/lessee not to evict and interfere with the peaceful possession and enjoyment of the leased property without following due process of law. The court below prejudged the issue of payment of arrears of rent pending adjudication of the injunction petition, which is illegal and arbitrary, thereby the court below committed error of law and error of fact in passing the impugned order, which warrants interference of this court and the order impugned is liable to be set aside and prays to allow the Civil Revision Petition. 5. Per contra, Sri. K.G. Krishna Murthy, learned senior counsel appearing for Sri. P. Ram Bhoopal Reddy, learned counsel on record for the respondent would contend that the object of the provisions of Order XV-A CPC is only to safeguard the interest of the landlord pending suit. The application is maintainable in a suit for permanent injunction filed by the tenant against the landlord pending adjudication of the suit, for payment of undisputed arrears of rents in the same analogy as provided in Section 11 of the Rent Control Act, to safeguard the interest of the landlord, the application is maintainable under Order XV-A read with Section 151 CPC, in a suit for injunction filed by the tenant, when it is not specifically barred by the provisions of Order XV-A CPC. The provisions of Section 11 of the Rent Control Act, obligates the tenant to file an application to deposit the arrears of rents due in a suit for injunction. The provisions of Section 11 of the Rent Control Act, obligates the tenant to file an application to deposit the arrears of rents due in a suit for injunction. In support of his contention, the learned counsel placed his reliance on a decision of this court in P. Brahma Sai and Others vs. State of Andhra Pradesh and Others, 2019 (6) ALD 206 , wherein it is held that the application under Order XV-A CPC is maintainable by the plaintiff/landlord, in a suit for recovery of rents, there is no dispute with regard to said legal position. But, the facts situation in the present case is totally different, the decision could not support the case of the defendant. Hence, the contention of the counsel for the petitioner that the application by the landlord is maintainable in a suit filed by the tenant for permanent injunction has no merit consideration. He would further contend that the court below rightly entertained the application filed under Order XV-A of CPC read with Section 151 CPC and ordered the petitioner/tenant to pay the undisputed arrears of rent, for which the petitioner admitted in the open court. He would further contend that the order impugned is a discretionary order, and the court below rightly exercised its discretion and passed the order under revision. The order does not suffer from any illegality and irregularity which warrants interference of this Court under revisional jurisdiction under Article 227 of the Constitution of India and the Civil Revision Petition is liable to be dismissed. 6. Having regard to the facts and circumstances of the case, considering the submissions of the counsel and on perusal of the record, the points that falls for consideration of this court is that: (1) Whether the application filed by the landlady under Order XV-A read with Section 151 CPC is maintainable against the tenant in a suit filed by the tenant for permanent injunction restraining the landlady and her men and agents from interfering with the peaceful possession and enjoyment of the tenant without following due process of law or not? (2) Whether the court below is justified in passing the order under revision and directing the petitioner/tenant to pay the arrears of rent as indicated in the notice dated 24.07.2018 issued by the landlady as per the lease agreement dated 02.04.2016? (2) Whether the court below is justified in passing the order under revision and directing the petitioner/tenant to pay the arrears of rent as indicated in the notice dated 24.07.2018 issued by the landlady as per the lease agreement dated 02.04.2016? Before considering the rival contentions, this court felt it appropriate to read and understand the provisions of Order XV-A CPC (Provision is introduced by A.P. State Amendment) and it is profitable to extract the provision: “Order XV-A: (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, of licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated up to that date 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) Whether 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 reason 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. Explanation - The “expression the amount representing the undisputed areas” 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. (c) deposited into the Court, in any proceedings, in relation to the said property.” 7. (a) paid as tax, to a local authority, in respect of the property. (b) paid to the plaintiff under written acknowledgment. (c) deposited into the Court, in any proceedings, in relation to the said property.” 7. The provisions of Order XV-A of CPC are brought into existence in the Code of Civil Procedure by way of A.P. State Amendment to protect the interest of the landlord pending suit for eviction of tenant. The provision is introduced only to prevent the tenant to take advantage of the pendency of the suit and not paying rents to the landlord as the provisions of Section 151 CPC is not adequate to deal with the situation of directing the tenant to pay undisputed rents to the landlord. 8. A reading of the provisions of Order XV-A of CPC, clearly postulates an obligation upon the defendant/tenant, in the suit for recovery of possession, on termination of lease or licence with or without prayer for recovery of arrears of rent, of licence fee while filing his written statement, shall deposit the amount representing the undisputed arrears of rent calculated up to date, 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. The object of the above provision of law is only to protect interest of the landlord pending adjudication of his suit for eviction. Even the provision enables the plaintiff/landlord to file an application under Order XV-A of CPC to seek a direction from the court to the defendant to pay undisputed arrears of rents, as per law. Hence, the defendant/landlord in a suit filed by the plaintiff/tenant for permanent injunction and not to interfere with the peaceful possession and enjoyment of the leased property, is not entitled to file an application under Order XV-A of CPC, as the plaintiff is not obligated to deposit the undisputed arrears of rent in the suit as provided under Section 11 of the Rent Control Act, where it specifically obligates the tenant to file an application to deposit rents. In the absence of specific provision to deposit arrears of undisputed rents by the plaintiff/tenant in a suit for injunction restraining the landlord to evict the tenant, the deposit of undisputed rents by the tenant cannot be read into the provision. In the absence of specific provision to deposit arrears of undisputed rents by the plaintiff/tenant in a suit for injunction restraining the landlord to evict the tenant, the deposit of undisputed rents by the tenant cannot be read into the provision. When similar issue of maintainability of the application under Order XV-A of CPC filed by the defendant/landlord in a suit filed by the tenant for declaration of termination of tenancy as illegal was fell for consideration before the common High Court of Andhra Pradesh, in the case of Prakash Arts vs. Mohammed Rafiuddin, 2011 (1) ALT 467 , wherein it is held that the application submitted by the defendant does not fit into the provisions of order XV-A of CPC. Hence, the contention of the counsel for the respondent/defendant that the application filed by the defendant is maintainable is untenable. The further contention of the learned counsel that the application is filed under Order XV-A of CPC read with Section 151 CPC, and hence the court has inherent power to entertain application filed by the defendant/landlord in the suit for injunction restraining the defendant/landlord could not be accepted, when the provision under Order XV-A CPC specifically provides a remedy to the landlord in a suit for recovery of possession, on termination of lease or licence, if any, undisputed rents payable by the tenant, the landlord’s application for recovery of arrears of rent alone is maintainable. The settled legal position of law is that the inherent power under Section 151 of CPC could be exercised by the court in the absence of any specific provisions and in exceptional circumstances, sparingly only to meet the ends of justice. However, the court cannot exercise such power in contravention of, or in conflict with or upon ignoring express and specific provision of law. If the application for payment of undisputed arrears of rent by the defendant in a suit for injunction simplicitor is allowed to be entertained, the scope of the suit could be enlarged, which is prejudicial to the interest of the plaintiff, thereby the adjudication of the suit could be delayed. If the application for payment of undisputed arrears of rent by the defendant in a suit for injunction simplicitor is allowed to be entertained, the scope of the suit could be enlarged, which is prejudicial to the interest of the plaintiff, thereby the adjudication of the suit could be delayed. When the application itself is not maintainable under the provision of Order XV-A of CPC by the defendant in a suit for injunction, merely by adding section 151 CPC to the petition, does not enlarge the scope of main provision under Order XV-A of CPC to empower the court below to entertain the application filed by the defendant to deposit arrears of rent when such an application is not maintainable under main provision. In view of the above discussion, the Point No. 1 is answered in favour of the petitioner/plaintiff. Point No. 2: 9. The court below having held that initially the agreed rent between the parties as per the lease agreement dated 02.04.2016 was Rs. 1,80,000/- the defendant admittedly issued a notice dated 24.07.2018 to the plaintiff through her counsel and admittedly the plaintiff did not pay the rent after issuance of the said notice, whether the defendant is entitled rents from 02.08.2017 onwards as sought by her can only has to be considered after evidence is let in by both the parties, grossly erred in directing the petitioner/plaintiff to deposit arrears of rents as per the terms and conditions of registered lease deed dated 02.04.2016 stating that the petitioner/plaintiff accepted in the open court about non-payment of arrears of rents, without conducting any enquiry much less summary enquiry in quantifying the arrears of undisputed rents, as required under the provisions of Order XV-A CPC, when the petitioner/plaintiff denied the due amount of rents. The court below without quantifying the exact alleged arrears of rent directed the plaintiff to pay rents by passing cryptic order, such casual approach on the part of the learned Judge is highly reprehensive. Hence, this court found that the order under revision is contrary to the provisions of Order XV-A of CPC. Accordingly, the Point No. 2 is answered in favour of the petitioner/plaintiff. 10. In view of the above discussion, the order impugned is liable to be set aside. 11. Hence, this court found that the order under revision is contrary to the provisions of Order XV-A of CPC. Accordingly, the Point No. 2 is answered in favour of the petitioner/plaintiff. 10. In view of the above discussion, the order impugned is liable to be set aside. 11. Accordingly, the Civil Revision Petition is allowed by setting aside the order dated order dated 22.07.2019 in I.A. No. 665 of 2018 in O.S. No. 289 of 2018 passed by the IV Additional District Judge, Tirupathi as the same is illegal, arbitrary and contrary to the provisions of XV-A read with Section 151 CPC. However, without costs. 12. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.