Bombay High Court
Shri Shashikant Karbotkar vs Shri Suresh R. Karbotkar, Since ... on 2 July, 1996
Equivalent citations: 1997(1)BOMCR683, 1997 A I H C 99, (1997) 1 RENTLR 604, (1996) 2 GOALT 37, (1997) 1 BOM CR 683
Author: R.K. Batta
Bench: R.K. Batta
JUDGMENT R.K. Batta, J.
1. The petitioner had filed a suit for eviction and mesne profits against the respondents. The case of the petitioner is that when he was sick, he had requested original defendant No. 1 Suresh Karbotkar, who is his brother, to look after the business; that taking advantage of sickness of the petitioner, original defendant No. 1 fraudulently obtained plaintiff's signatures on some documents; that on recovery of illness, original defendant No. 1 declined to hand over the suit business. According to petitioner, the so-called deed of lease/royalty under which the respondents claim right is a manipulated document and the said document has not been produced by the respondents to date in the Civil Suit. Even though the petitioner claimed that the said document was manipulated, yet he chose to terminate the so-called agreement/deed of lease/royalty. On these grounds, the petitioner sought eviction of the respondents.
2. Subsequently to the filing of the suit, the petitioner filed an application on 10-3-1995 under section 151 C.P.C read with Order XV-A C.P.C seeking direction to the respondents to deposit royalty amount of Rs. 750/- per month-arrears to date and to continue to pay the said arrears and in the event the respondents fail to deposit the same, the defence be struck off.
3. This application was dismissed by the trial Court on the ground of its maintainability without going into merits of the claims put up by the parties in the Suit.
4. Learned Advocate Shri Lotlikar submitted before me that the petitioner has, alternatively, taken the plea of termination of agreement/lease/royalty document and, as such, spirit of Order XV-A should have been applied and extended to the case under consideration by the trial Court and the application should have been granted. Advocate Shri Lotlikar further submitted that the trial Court should have, in fact, taken into consideration provisions of Order XXXIX, Rule 10 C.P.C.. This aspect was never taken before the trial Court and cannot be permitted to be raised at this stage of revision.
5. Therefore, the only point which remains for determination in this Revision is whether spirit of Order XV-A could be extended to the facts and circumstances of the case and the trial Court should have directed the respondents to deposit royalty amount of Rs.750/- per month with arrears thereof. Order XV-A deals with striking off defence in a suit by a lessor on the premises that the lessor admits lease in favour of the defendant. In the case under consideration, no such lease has been pleaded by the plaintiff and it is only, alternatively, that the petitioner has come with the plea that even if the so-called Agreement in question is taken into account, the respondents should be directed to deposit the royalty amount. I am afraid that there is no force in the contention of Advocate Shri Lotlikar and the spirit of Order XV-A C.P.C. cannot be extended to a situation alternatively contemplated by the petitioner.
6. Advocate for the respondents has produced before me xerox copy of Agreement dated 27th December, 1990 which speaks of liability of Rs. 25,000/- towards the arrears of rent which the respondents claim to have cleared. This liability is apparently prior to 27th December, 1990. Learned Advocate Shri Lotlikar has produced before me Challan dated 12-8-1994 whereby he has deposited the rent of the suit premises from April, 1991 to July, 1994. The suit was filed in the year 1993 and it was only thereafter that this rent was deposited from the period April 1990-91. This document, therefore, does not, in any manner, help the petitioner at this stage. On merits also I do not find that any case is made out by the petitioner for directing the respondents to deposit the said sum of Rs. 750/- per month. The Agreement itself is disputed by the petitioner and, according to the petitioner, the agreement was manipulated by original defendant No.1. The respondents claim to have paid amounts under the said Agreement and they also claim other liabilities of the petitioner have been discharged by them. These are all subject-matters of evidence to be recorded. However, in view of the existence of the said Agreement dated 27th December, 1990, which is disputed by the petitioner, no relief could have been granted to the petitioner under Order XV-A read with section 151 C.P.C. Equity is also not in favour of the petitioner.
7. For the reasons mentioned above, I do not find any merit in this Revision and the Revision is hereby dismissed. Rule discharged accordingly.