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2021 DIGILAW 186 (TS)

Bharath Bhushan Sanghi v. Manoj Kumar Soni

2021-06-18

B.VIJAYSEN REDDY

body2021
ORDER : B. Vijaysen Reddy, J. 1. This civil revision petition arises out of order dated 29.9.2016 passed by the VIII Junior Civil Judge, City Civil Court, Hyderabad in IA No. 318 of 2015 in OS No. 1897 of 2015 wherein an application filed under Section (sic Order) XV-A of the Code of Civil Procedure praying to strike off the defense of the respondent/defendant for not paying arrears of rents, was dismissed. 2. The petitioner instituted a suit OS No. 1897 of 2015 for eviction of the respondent/defendant/tenant. In IA No. 318 of 2015 it was stated by the petitioner that the respondent alongwith his mother and sister approached the petitioner somewhere in the month of September, 2011 for taking the suit schedule property on lease. There were negotiations between them and the petitioner agreed to let out the said property on lease to the respondent.; on monthly rent of Rs. 9,500/-. Accordingly, a rental agreement dated 24.10.2011 was entered into for a period of 11 months. The rent was to be paid by the respondent on or before 5th of each English calendar month. The respondent was irregular in payment of rent. On 30.7.2014, the respondent paid rent for a period of four months i.e., 24.9.2013 to 23.1.2014. The respondent is due a sum of Rs. 1,75,794/- calculated upto 23.5.2015. The petitioner had been communicating about payment of rent with the defendant and his sister, Ms. Bhagawati Soni, staying with him and other family members. It is the specific case of the petitioner that rents were remitted to the petitioner's bank account through online (NEFT) payment. Several emails have been addressed to the respondent for payment of rental arrears and seeing no response, legal notice dated 14.6.2015 was issued terminating lease by giving 15 days notice as required under Section 106 of the Transfer of Property Act. In the notice, the petitioner claimed damages/mesne profits at Rs. 25,000/- per month. The rent as on the date of filing of the suit was Rs. 10,998/-. 3. On a perusal of the contents of the written statement, this Court finds the defence taken by the respondent adverting to the statements made by the petitioner/plaintiff in Paras 3 to 7 of the plaint is vague. 25,000/- per month. The rent as on the date of filing of the suit was Rs. 10,998/-. 3. On a perusal of the contents of the written statement, this Court finds the defence taken by the respondent adverting to the statements made by the petitioner/plaintiff in Paras 3 to 7 of the plaint is vague. This Court is concerned only with regard to the deposit of rents during the pendency of the suit, hence, deems it appropriate not to make any observations, which would have bearing on the merits of the suit. 4. In regard to the specific averments made in the plaint, as above, regarding payment of rental amount through NEFT and communication (Para 2) with the sister of the defendant, there is no denial to such pleadings by the respondent in his written statement. Further, regarding rental agreement dated 24.10.2011, there is no specific denial in the written statement except stating that the petitioner has suppressed true facts and made false pleadings; petitioner is not the owner of the premises and not entitled for the relief sought. 5. IA No. 2 of 2017 is filed in this revision to receive the rental agreement dated 24.10.2011 entered into between the petitioner and the respondent as additional evidence. The said application is ordered since it is stated that the rental agreement could not be filed at the earlier point of time as it was sent for impounding. The agreement is entered into for a period of 11 months commencing from 24.10.2011 on a monthly rent of Rs. 9,500/-. The rent is payable on or before the 5th of each English calendar month. 6. Mr. Sharad Sanghi, learned Counsel for the petitioner, relied upon a judgment of this Court in Sharada Bai v. Navratan Vyas, 2017 (3) ALD 212 , wherein it was held that the tenant cannot dispute the title of the landlord since estoppel operates against him under Section 116 of the Evidence Act. 7. Mr. R. Umender Kumar, learned Counsel for the respondent, submits that the rental agreement was not part of the Court record when the impugned order was passed by the Court below and during the trial the rental agreement was marked as Ex. Al, the genuineness of which is seriously disputed by the respondent. 7. Mr. R. Umender Kumar, learned Counsel for the respondent, submits that the rental agreement was not part of the Court record when the impugned order was passed by the Court below and during the trial the rental agreement was marked as Ex. Al, the genuineness of which is seriously disputed by the respondent. Initially an ex parte decree was passed by the Court below and the petitioner did not insist for payment of rents under Order XV-A CPC. After ex parte decree was set aside, suit was restored and the respondent was permitted to contest the suit. At a later stage, Order XV-A application was filed by the petitioner, which is belated. The rental agreement is inadmissible in evidence. In view of the fact that there is categorical denial of relationship of landlord and tenant and also the respondent entering into agreement, the application for deposit of rent is not maintainable. The respondent has not signed the rental agreement. There is no proof of respondent paying any rent to the petitioner. The correspondences, by the petitioner, were addressed to Ms. Bhagawati Soni and not to the respondent. The application under Order XV-A CPC can be allowed only when the lease is admitted. In a case where lease is denied, the Court below has got discretion to dismiss the application and rightly, the impugned order was passed. There are triable issues involved in the case and on mere application under Order XV-A CPC, relief cannot be granted. 8. Learned Counsel further submits that the main suit has been finally argued before the Court below today. Hence, it would be just and appropriate to direct the Court below to pass judgment in the main suit instead of passing orders in the CRP. 9. Learned Counsel referred to two decisions of this Court viz., K. Zakria Shaik v. K. Saleem Basha, 2011 (4) ALD 757 and M.B. Chander v. Balakrishna Rao Charitable Trust, 2017 (3) ALD 68 : 2016 (6) ALT 1 . 10. In K. Zakria Shaik's case (supra), this Court held that when there is dispute with regard to quantum and arrears of rent, the application under Order XV-A is not the proper mechanism to recover the suit amount. "...The word "undisputed" occurring before the word "arrears", assumes significance. 10. In K. Zakria Shaik's case (supra), this Court held that when there is dispute with regard to quantum and arrears of rent, the application under Order XV-A is not the proper mechanism to recover the suit amount. "...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 Code of Civil Procedure 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 Code of Civil Procedure." 11. In M.B. Chander's case (supra), it was held that summary trial can be conducted by the Court below for determining quantum of rent. 12. This Court is of the opinion that the' facts of the case in K. Zakria Shaik's case (supra), are not applicable to the instant case since in the written statement the tenant has not specifically denied about entering into rental agreement dated 24.10.2011 and it was also not denied that the sister of the defendant has deposited the rents through NEFT (Para 4 supra). The dispute in M.B. Chander's case (supra), is regarding quantum of rents which is not the issue involved in the instant case. 13. The Court enquiring into a petition under Order XV-A CPC has got limited jurisdiction. The Court is conducting only summary enquiry. The provision says it is mandatory for the defendant, while filing his written statement, to deposit arrears of rent and shall continue to deposit rents. 13. The Court enquiring into a petition under Order XV-A CPC has got limited jurisdiction. The Court is conducting only summary enquiry. The provision says it is mandatory for the defendant, while filing his written statement, to deposit arrears of rent and shall continue to deposit rents. Such deposit of rent shall have to be made by the tenant even if the landlord has not sought relief of recovery of arrears of rent. Penalty is imposed on the tenant if the rent, as directed by the Court below, is not deposited and the Court is empowered to strike off defence if the defendant continues default in deposit of rents. 14. In view of the fact that there is a rental agreement, the respondent/tenant is estopped under Section 116 of the Indian Evidence Act to question the title of the petitioner/landlord. It is immaterial, who is paying rent on behalf of the tenant. As pointed out above, excepting vague denial in the written statement, nothing is stated in what status/capacity the respondent is occupying the suit schedule property. While asserting that the petitioner does not have title to the suit property, the respondent has not made any counter-claim that he is the owner of the suit property. The provision under Order XV-ACPC is inserted by way of amendment of A.P. High Court in the year 2005 in order to protect the interests of the landlord during the pendency of the suit. The tenant, who occupies premises on lease, cannot be allowed to enjoy the property without payment of rents on the pretext of making frivolous and vague allegations and disputing the ownership of the landlord. 15. The CRP is of the year 2017. The matter has come up for hearing today. In ordinary circumstances, the Court would have directed the parties to cooperate in the disposal of the main suit when the suit proceedings are at the final stage and decline to pass interlocutory orders, if the same would have bearing on the main suit decision. However, in the case on hand, the delay, if any caused, for disposal of CRP is for the reasons beyond the control of the landlord and should not work out to his disadvantage. It would be apt to refer to the legal maxim ''actus curiae neminem gravabit' - an act of Court shall prejudice no man. However, in the case on hand, the delay, if any caused, for disposal of CRP is for the reasons beyond the control of the landlord and should not work out to his disadvantage. It would be apt to refer to the legal maxim ''actus curiae neminem gravabit' - an act of Court shall prejudice no man. In the instant case, the Court passed orders dismissing the application for deposit of rents on untenable grounds. The. Courts have to keep in mind the mandatory requirement under Order XV-A CPC when such application is filed and also the summary nature of the proceedings. 16. Even assuming that the rental agreement was not part of the record of the Court below, it needs to be emphasized that the respondent/tenant did not dispute the plaint averments that rental agreement dated 24.10.2011 was entered into; rents were paid through NEFT and communication was being made with Ms. Bhagawati Soni, sister of the respondent/tenant. 17. This Court, prima facie, is of the view that the petitioner is owner of the subject property and the respondent cannot be permitted to continue in the premises without paying rents. The finding of the Court below that the jural relationship of the parties has to be decided in the main suit and not at the preliminary stage, in view of the fact that the respondent has questioned the rental agreement dated 24.10.2011, is erroneous and unsustainable. It is needless to point out that the tenant, who is bound to pay the monthly rent, cannot be given leverage to enjoy the property without paying rent. The order under challenge is set aside. 18. The civil revision petition is allowed with a direction to the respondent to clear the arrears of rent within a period of one month from today and continue to deposit the rent at Rs. 10,998/- per month until disposal of the suit. In view of the fact that the main suit OS No. 1897 of 2015 is being heard finally, it is deemed appropriate by this Court to keep this order in abeyance for a period of one month. In the event, the suit is not disposed of within one month from today this order shall come into operation. However, if the suit judgment is passed within one month from today, this order shall become inoperative and automatically stand dissolved. 19. In the event, the suit is not disposed of within one month from today this order shall come into operation. However, if the suit judgment is passed within one month from today, this order shall become inoperative and automatically stand dissolved. 19. Pending miscellaneous petitions, if any, shall stand closed. There shall be no order as to costs.