Bombay High Court
Mr. Sheriar Behram Shaw vs Piloo D. Brocha And Ors on 22 July, 2022
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
1.WP(ST).1845.22.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
BALAJI
signed by
BALAJI
GOVINDRAO
WRIT PETITION (STAMP) NO.1845 OF 2022
GOVINDRAO PANCHAL
PANCHAL Date:
2022.08.03
17:26:48
+0530 Mr. Sheriar Behram Shaw ..Petitioner
Versus
Piloo D. Broacha and Ors. ..Respondents
Mr. Javed Khan, for the Petitioner.
Mr. Satyan N. Vaishnav a/w Nupur Mukherjee i/b M/s. N. N.
Vaishnawa & Co., for Respondent Nos.2 & 4.
CORAM : NITIN W. SAMBRE, J.
DATE : 22th JULY, 2022 P.C.
1. Counsel for the petitioner submits that the petitioner is willing to deposit arrears of rent and as such the order impugned passed by the Court below, whereby the defence of the petitioner/defendant was struck off needs to be quashed and set aside. According to him, the delay in deposit of the arrears of rent is bona fide, as there was communication gap between the petitioner and the concerned lawyer.
2. Mr. Satyan Vaishnav, counsel appearing for the respondents would oppose the claim, as according to him, though the powers under Order XV-A of the CPC are discretionary in nature, the serious defaults in spite of the orders of the Court below committed by the petitioner has BGP. 1 of 7
1.WP(ST).1845.22.doc.
rightly prevailed before the Court for passing the order impugned.
3. I have appreciated the said submissions.
4. The fact remains that the petitioner is defendant in RAE Suit No. 657/1078 of 2011.
5. In the said suit, application Exh.11 was taken out by the petitioner/defendant for permission to deposit the arrears of rent and to deposit current rent @ Rs.468/- (Rs. Four Hundred and Sixty Eight only) per month till the disposal of the suit. His contentions were that the rent was paid upto August-2009, however, the plaintiff/respondent herein has not accepted the rent. As such, he has shown willingness to deposit arrears of rent at the rate of Rs. 468/- per from from September-2009 till March 2012, total amount of Rs. 14,508/- (Rs. Fourteen Thousand Five Hundred and Eight only).
6. The said claim was contested by the respondent/ plaintiff on the ground that the petitioner/tenant was in habit of committing default.
7. The court of Small Causes Court allowed said prayer of the petitioner/defendant and following directions came to be issued :-
BGP. 2 of 7
1.WP(ST).1845.22.doc.
"Considering above facts the defendant is directed to pay arrears of rent as has been stated in his application to the defendant directly within 15 days of this order or on or before the adjourned dated and obtain the receipt to that effect from the plaintiff. The defendant is also directed to go on paying rent @ 468/- p.m. on or before 10th day of following month to the plaintiff till the disposal of the suit."
8. As a squeal of above, the petitioner was directed continuing to pay rent at the rate of Rs.468/- per month on or before 10th day of following month till the disposal of the suit.
9. It appears that the petitioner/defendant has failed to deposit the rent as directed vide said order dated 5th October, 2012, which prompted the respondent/plaintiff to take out proceedings vide Exhibit-78 pursuant to the provisions of Order XV-A Rule 1 of the CPC (Bombay Amendment). The prayer of the respondent was the defence of the petitioner/defendant is liable to be struck off. The said provision of Order XV-A Rule 1 of the CPC reads thus :-
"ORDER XV-A Case Management Hearing
1. First Case Management Hearing. -- The Court shall hold the first Case Management Hearing, not later than four weeks from the date of BGP. 3 of 7
1.WP(ST).1845.22.doc.
filing of affidavit of admission or denial of documents by all parties to the suit."
10. The fact that in spite of the application being taken out by the respondent Exh.78, the petitioner has not shown his bona fides by deposit of amount of rent before the Small Causes Court. As such, the Small Causes Court was prompted to pass the order impugned dated 9 th December, 2019, whereby defence of the petitioner/defendant was struck off. The Petitioner feeling aggrieved preferred Revision Application No.31 of 2020 before the Small Causes Court claiming that the plaint does not contain prayer for deposit of rent and the earlier claim before the Court below of permission to deposit was out of their own choice and as such petitioner cannot be mandated to deposit the rent.
11. The said revision also came to be dismissed vide the order impugned.
12. The fact remains that the directions issued by the Small Causes Court on 5th October, 2012 reproduced (supra) were pursuant to the claim put fourth by the petitioner that he was in arrears and he be permitted to deposit the rent and also directions to continue to deposit the rent.
BGP. 4 of 7
1.WP(ST).1845.22.doc.
13. No doubt, the claim put forth by the counsel for petitioner that the provisions of Order XV-A of the CPC is a discretionary relief and the order of striking out defence will have serious ramification over the legal rights of the petitioner. However, this Court, so also the Court below is required to be sensitive to the very conduct of the petitioner as to whether the petitioner's prayer for setting aside impugned warrants consideration.
14. The fact remains that in spite of there being order directing the petitioner to deposit the rent regularly, he has failed to comply with the same till this date. The petitioner continued to enjoy the possession of the suit property which is located in one of the best area in the city of Bombay. I am informed that the area of the flat which is in the possession of the petitioner is around 1300 sq.ft. attached with one garage facility.
15. The fact remains that if we appreciate the market rent of the said property as on date, the same will not be less than Rs.1,00,000/- per month that too accompanied with hefty deposit of not less than Rs.25,00,000/-. However, this court gave an option to the petitioner during the course of hearing on earlier date, whether he can deposit arrears along with the compensation based on the decision of Apex Court in the matter of Atmaram Properties.
BGP. 5 of 7
1.WP(ST).1845.22.doc.
16. As observed hereinabove, the petitioner has failed to show his bona fides before the Small Causes Court, so also in the revision proceedings. Leave apart deposit of the compensation amount, even the petitioner is not armed with amount of arrears. In response to the Court's query, I am informed that that the petitioner is residing in United States.
17. In the aforesaid background, what can be noticed is the petitioner not only has shown disregard towards earlier order passed by Court below in 2012, has not deposited the amount as was directed but even has failed to show bona fide before this Court. In the backdrop of aforesaid conduct of the petitioner, if we appreciate the very scheme of (Bombay Amendment) Order XV of the CPC, whereby Order XV-A of the CPC is incorporated, same empowers the Court to stuck off the defence in the event of the parties like the petitioner committing the default in making the deposit of arrears of rent or the current rent. The only rider provided under Rule 2 of Order XV-A of the CPC is before passing order of striking off the defence, the notice is to be served to the petitioner which in fact appears to be complied with. Not only such notice was given to the petitioner that he has committed default, but consistently the petitioner was given opportunity to deposit the arrears of rent.
BGP. 6 of 7
1.WP(ST).1845.22.doc.
18. In the aforesaid background, the order impugned passed by both the Courts below appears to be in tune with the very requirement Order XV-A Rules 1 and 2 CPC. In that view, no case for interference in writ jurisdiction is made out.
19. The petition as such fails stand dismissed.
20. Counsel for the petitioner at this stage seeks stay to the further proceedings in the suit, as he has instructions to question the legality of the order of this Court, so also the impugned order in the petition before the Apex Court.
21. As far as the aforesaid prayer is concerned, same is opposed by the counsel for respondent, Mr. Satyan Vaishnav, as according to him, the petitioner cannot be granted leverage to enjoy the property free of cost.
22. There appears to be substance in the contention of Mr. Satyan Vaishnav.
23. That being so, the prayer for staying the present judgment stands rejected.
[NITIN W. SAMBRE, J.]
BGP. 7 of 7