Andhra HC (Pre-Telangana)
Chaitanya Lanka, S/O.Sambasiva Rao ... vs Suresh Kumar Gupta, S/O.Sri Umraolal ... on 8 July, 2014
Equivalent citations: AIR 2015 (NOC) 174 (HYD.)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No.433 of 2014
08-07-2014
Chaitanya Lanka, S/o.Sambasiva Rao Lanka,aged 35 years, Occ: Business,R/o.Plot
No.1030/A, Road No.51,Jubilee Hills, Hyderabad and another. Petitioners
Suresh Kumar Gupta, S/o.Sri Umraolal Gupta,Aged about 62 years, Occ:
Business,R/o. G-3, Reliance Manor, Road No.12,Banjara Hills, Hyderabad and
others . Respondents
Counsel for the petitioners: Sri B.V. Subbaiah, learned Senior
Counsel for Sri K. Ananda Rao
Counsel for Respondents: Sri D. Prakash Reddy, learned
Senior Counsel for Sri
T.Sudhakar Reddy
<Gist :
>Head Note:
?Cases referred:
1.2011 (4) ALD 757
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY
CIVIL REVISION PETITION No.433 of 2014
ORDER:
This revision under Article 227 of the Constitution of India is filed against the order dated 21.10.2013 passed by the Court of II Additional Chief Judge, City Civil Courts, Hyderabad, in I.A.No.2181 of 2012 in O.S.No.734 of 2011. The petitioners are the defendants in the suit.
The respondents filed the suit against the petitioners for the relief of eviction of the petitioners from the suit schedule premises admeasuring 3000 square feet in Himayatnagar locality of Hyderabad. It was pleaded that the respondents are the joint owners of the premises of a building known as Papalal Chambers and that the petitioners have taken the suit schedule premises comprising of the first floor on lease for establishing a Bar and Restaurant with effect from 01.04.2010 on a rent of Rs.1,50,000/- per month. It was also mentioned that the petitioners agreed to pay the rents on or before 5th of every month to the respondents in accordance with their shares. According to the respondents, the petitioners were irregular in payment of rents and a notice dated 16.04.2011 was issued demanding the arrears of rent of Rs.18,00,000/- together with interest. Reference was made to a reply dated 26.05.2011 issued by the petitioners. Ultimately, they prayed for eviction as well as for recovery of arrears of Rs.29,89,650/- upto the date of filing of the suit.
The respondents have also filed I.A.No.2181 of 2012 under Order XV-A C.P.C with a prayer to direct the petitioners herein to deposit the accumulated arrears of rent of Rs.63,00,000/- upto the date of filing of the I.A and to direct the petitioners to pay damages at the rate of Rs.3,00,000/- per month. Apart from reiterating the contents of the plaint, the respondents have stated that even after filing of the suit, the petitioners did not pay the rents.
The I.A. was opposed by the petitioners by filing a counter- affidavit. The existence of relationship of lessors and lessees, between the parties was not disputed. However, they disputed the date of commencement of the lease. It was stated that the respondents agreed to execute a lease deed in respect of the premises for a period of nine years and that they have failed to do so. The petitioners further stated that they spent a sum of Rs.75,00,000/- towards renovation of the premises for establishing a Bar and Restaurant and paid Rs.9,00,000/- to M/s.Platinum Constructions. The total investment is said to be Rs.1,38,00,000/- on the assurance that the lease would be for a period of nine years. The petitioners further pleaded that if they are required to vacate the premises, the respondents would be under obligation to pay the said amount of Rs.1,38,00,000/- together with interest apart from the amount paid towards advance and the loss sustained by them.
The trial Court passed the order under revision, directing the petitioners to pay the accumulated arrears being Rs.61,50,000/- within two months and to continue to pay the future rents @ Rs.1,50,000/- per month. It was mentioned that if the petitioners fail to pay the amount as directed, their right to defend the suit will be struck off.
Sri B.V.Subbaiah, learned Senior Counsel for the petitioners submits that though the ownership of the suit schedule premises in the respondents and the taking of the suit premises on lease by the petitioners is not disputed, huge investment was made with the understanding that the part of it would be adjusted towards rents. He submits that once there is a dispute about the actual liability to pay the rents, the matter must be relegated to the stage of the trial and hearing of the suit as provided for under Order XV-A C.P.C. He further submits that huge amounts of advance are given to the respondents and that the trial Court did not take the same into account. He placed reliance upon the judgment of this Court in K. Zakria Shaik v. K. Saleem Basha .
Sri D. Prakash Reddy, learned Senior Counsel for the respondents, on the other hand, submits that except the rent for one month, the petitioners did not pay any rents, though they have occupied the premises, established a Bar and Restaurant and running it. He submits that the investment said to have been made by the petitioners is for the purpose of their business and the question of it being adjusted towards rent does not arise. He contends that the occasion for a tenant or lessee to adjust the rents towards any expenditure would arise if only a written permission in that behalf is given by the landlord or the lessor and that nothing of that sort exists in the instant case.
The petitioners do not dispute that they have taken the suit schedule premises on lease from the respondents. Apart from filing of the written statement in the suit, the petitioners filed a counter claim for the relief in the form of a direction to the respondents to execute a lease deed for a period of 9 years and in case, such a relief is not granted, to pass a decree in their favour for a sum of Rs.1,38,00,000/- against the respondents. Though the petitioners tried to be somewhat equivocal as to the manner in which, lease in respect of the suit schedule property commenced, they have stated in their counter claim that a document was executed on 03.05.2010 in the form of a lease deed and that the same has been submitted to the authorities of the Excise Department, for obtaining licence.
The respondents filed the I.A under Order XV-A C.P.C with a prayer to direct the petitioners to deposit the arrears of rent. It was alleged that the petitioners did not pay the rents almost from the commencement of the lease. Neither in the counter affidavit filed in the I.A nor in the written statement filed in the suit, the petitioners have pleaded payment of any amount to the respondents. The main plank of their contention is that huge investment was made for renovation of the premises to make it suitable for establishment of a Bar and Restaurant.
Order XV-A was introduced in C.P.C through a State amendment. It 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.
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.
The objective underlying the provision is to ensure that the owner of the premises is not denied of the arrears of rent in respect of the premises, which is the subject matter of a suit for eviction. The defendant is exposed to the disadvantage of foregoing the right to defend the suit, if the amount is not paid. The amount of arrears is to be ascertained in the manner, prescribed in the said provision.
In an application filed under Order XV-A C.P.C, three aspects become relevant, namely, (a) existence of the lease between the parties vis--vis the suit schedule property, (b) quantum of rent and (c) the period for which the rent was not paid. If there is no dispute on these aspects, an order for payment of arrears must follow, as a matter of course, with a threat of forfeiture of the right to defend the suit. If there is a dispute on those aspects, the semblance of enquiry is to be undertaken. If the controversy as to the very existence of arrears is serious enough, it must be dealt with, only at the trial of the suit. In Zakria Shaiks case, this Court explained the purport of Rule XV-A C.P.C as under:
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.
The said observation does not fit into the facts of this case.
In the instant case, there is no dispute on any of the three aspects referred to above. The petitioners do not dispute that they are lessees of the suit schedule premises owned by the respondents. The quantum of rent is admittedly Rs.1,50,000/- per month. It was not even stated by them that they have paid the rent for the period mentioned in the I.A. Therefore, the plea of the learned Senior Counsel for the petitioners that the issue can be considered only at the stage of trial is bereft of any merit. Even otherwise that would hold good for the arrears upto the filing of suit and not for subsequent rents.
The contention that certain advances were paid to the respondents and expenditure was incurred and that those amounts must be adjusted towards rent, is difficult to be countenanced. A tenant or lessee can adjust the amount payable as rent only when specifically authorised by the landlord or lessor, in writing. Further, the question of investment said to have been made by the petitioners towards decoration or renovation being adjusted against rents does not arise. The expenditure said to have been incurred by them was for their beneficial use of premises.
The trial Court has taken correct view of the matter and this Court does not find any basis to interfere with the order under revision. The petitioners have put the respondents to serious hardship and, in a way misused the process of the Court. Their unreasonable if not cantankerous nature is evident from the filing of counter-claim for recovery of the investment made by them and paying any rent whatever.
Hence, the Civil Revision Petition is dismissed with costs of Rs.20,000/- (Rupees twenty thousand only). The time for payment of accumulated arrears is extended by one month from today. In case, the amount is not paid within the stipulated time and the order of the trial Court is not complied with, further steps as contemplated under Order XV-A C.P.C shall ensue. There shall be no order as to costs.
The Miscellaneous Petitions filed in this revision petition shall stand disposed of.
__________________________ L. NARASIMHA REDDY, J Date: 08.07.2014