Bombay High Court
Jaihind Vidyalaya, Nagpur vs Ghanshyam Girdharilal Khinchi And Ors. on 26 February, 1987
Equivalent citations: AIR1989BOM99, 1987(3)BOMCR474, AIR 1989 BOMBAY 99, (1987) 3 BOM CR 474 (1988) MAHLR 210, (1988) MAHLR 210
ORDER
1. An order passed by the learned Judge of the Small Cause Court on 16-12-1986 directing the defendants 1 and 2 to deposit Rs. 31, 500/- (arrears of rent for 35 months) by 15-1-1987 and further order passed by the said Court on 15-1-1987 striking out the defence of the defendants are challenged in this revision. Both these orders came to be passed in Civil Suit NO. 1205/1985 pending before the Court of small Causes at Nagpur.
2. The plaintiff (present respondents 1 and 2) instituted a suit for arrears of rent. During the pendency of suit an application came to be filed under O.XV-A Sub-Rule (I) of the Civil PC. and on hearing the parties the Court directed the defendants to deposit Rs. 31,500/- within a month i.e. by 15-1-1987. On 15-1-1987 the defendants filed an application for adjournment on the ground that they were thinking of going in revision against the order passed by the trial court. this application came to be opposed. On hearing the parties the Court passed an order below Ex. 38 rejecting the application for adjournment and further directing the defence to be struck off.
3. Shri Mohari the learned advocate for the petition (defendant 2 strenuously urged before me that the trial court was wrong in passing the order under O.XV-A of the Civil P.C. It was his contention that it is only in the suit for eviction and areas of rent and mesne profits that the order of depositing the rent could be passed. Conversely it was his contention that if the suit is not eviction but only for arrears of rent such order could never be passed. He invited my attention to 1st sub-rule of Order XV-A and wanted to read the word "or" conjunctively and not disjunctively. Before proceeding with the argument of Shri Moharil, it will be proper to reproduce sub-rules (I0 and (2) of O.XV-A of the Civil P.C. as it would help in appreciating the real controversy. It reads as follows:
(I). In any suit by a lesser for eviction of a lease and /or for the recovery from him or rent and future mesne profits, the defendant shall, deposit such amount as the court may direct on account of arrears up to the date of the order' (with such time as the court may fix) and thereafter continue to deposit in each succeeding the rate claimed in the suit as the court may direct. The defendant shall continue to deposit such amount till the decision of th suit unless otherwise directd.
In the event of any default in making the deposit, as aforesaid, the court may, subject to the provisions of sub-rule (2) strike off the defence.
(2) Before making an order for striking off the defence, the court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown, in order to decide as to whether the defendant should be relieved from an order striking off the defence".
4. Shri Moharil, wanted to extract from the rule that the court can direct the deposition of the arrears only when the suits mainly for eviction with the further relief of arrears of rent and mesne profits. According to him, such direction could never be given by the Court the main relief in the suit was not the relief for eviction. Reading the order as ti stands, the interpretation sought by Shri Moharil appears not only unreasonable but irrational. The official publication used the words "and/or" and this makes the interpretation sought by Shri Moharil unsustainable. The plain reading of the order would be that whenever the suits for eviction of a lessee and for arrears of rent or whenever the suit is for arrears of rent in either of these categories would admit the discretion left no the court in sub-rule (I) of O.XV-A of the Civil P.C.
5. Shri Mohari strongly relied upon the decision of this court in the case of shyam Liladhar Paul v. Ghanshyamdas Tharumal, 1985 Mah LJ 950 for his proposition that the discretion vested in the court can be used only when there is main relief of eviction. However the above is main relief of eviction, for the proposition which Mr. Moharil wants. The main question before the court in that case was about vires of O.XV-A of the Civil P.C. The court observed that purpose of O.XV-A of the Civil P.C. was specific and it was purely a procedural law falling squarely within the four corners of s. 122 of the Civil P.C. this case cannot be an authority for the point where "and/or" should be interpreted conjunctive and not disjunctively. Similarly the decision of this court in the case of Chandrakant shankarrao Deshmukh v. Haribhau Takaamji Kathane, 1983 Mah LJ 88 cannot be read as an authority to support the interpretation sought by Shri Moharil.
6. The plain reading of the O.XV-A shows that the court has powers to direct the tenant to deposit arrears or rent irrespective of the fact whether the suit is mainly for eviction or for arrears of rent. In either of these categories, the court can use its discretion.
7. It was next contended by Shri Moharil, that the court was definitely wrong in ordering the defence to be struck down with out giving any show cause notice to the defendants. Shri Moharil stands on a sounder footing as far as this point is concerned. The court passed an order on 16-12-1986 directing the defendants to deposit the arrears of rent by 15-1-1987. This direction in itself does not culminate into the striking out of the defence by mere lapse on the part of the defendants. Sub-Rule (I0 of O.XV-A of the Civil PC. Ni doubt mentions that "in the event of any default in making the deposit, as aforesaid, the court may, subject to the provisions of sub-rule (2) strike off the defence". Thus, this rule itself makes it clear that the powers of the court to strike out the defence are subject to sub-rule (2). Conversely the court cannot take action either in contravention or in defiance of sub-rule (2) of Order XV-A of the Code of Civil Procedure. What sub-rule (2) requires is that serving of the notice why the defence should not be struck out and this notice is necessary to e given before the Court proceeds to direct the striking out of the defence. This provisions, as the law stands, is mandatory and without following this provision, the court would not be justified in striking out defence.
8. What happened in the present case is that after passing the order directing the defendants to deposit an amount of Rs. 31.500/- within a month, the defendant applied before the court for adjournment that the wanted to challenge the order passed by the trial court. this request of adjournment came to be opposed by the plaintiff. The court on hearing both the parties rejected the request for adjournment. After rejecting the request, the court casually passed an order striking out the defence. Sub-rule (2) of O.XV-A of the Civil P.C does not recognise such a casual approach. Before taking such a drastic action the law requires the court to serve a show cause notice and it is only on hearing the parties concerned that such action can be taken. In the present case now show cause notice was served.
9. The order passed by the court striking out the defence is this definitely bad and it needs to be corrected with the result that the revision application deserves to be allowed. The order passed by the Small Cause Court on 15-1-1987 directing the defence to be struck off is hereby quashed. The rule is made absolute in these terms. There shall be no order as to costs of this revision application. The trial court is directed to proceed with the case according to law.