Punjab-Haryana High Court
M/S Fastrack Computing Limited And ... vs Col. Govinder Singh (Retd.) And Others on 9 July, 2013
Author: K. Kannan
Bench: K. Kannan
CR No. 4028 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No. 4028 of 2013 (O&M)
Date of decision: July 9, 2013
M/s Fastrack Computing Limited and others
...Petitioners
Versus
Col. Govinder Singh (Retd.) and others
...Respondents
CORAM:- HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. PS Mattewal, Advocate, for
for the petitioners.
K. KANNAN, J. (Oral)
The revision petition is against the direction given to the petitioner on the application filed by the plaintiff for deposit of the amount of licence fee said to be ` 25,000/- per month, as a condition for entering their defence and if it is not done their defence must be struck off.
The objection was that the suit itself is for mandatory injunction and not a suit for recovery of possession. Further contention is that the Order 15 Rule 5 of the CPC applies only in case of a suit for recovery of rent by lessor against the defendant and it cannot be applied by a person who claims himself to be licensor and the claim is made as licence fee and not as a rent. This objection by the respondents was rejected and the trial court directed the amount of `25,000/- to be deposited before a particular date every month till the pendency of the suit and failing which it has observed that the defence would be struck off.
The defendants whose defence has been struck off is before this court contending that Order 15 Rule 5 CPC would not apply to the suit for CR No. 4028 of 2013 2 mandatory injunction has relied on judgment in Harjinder Pal Versus Tarlochan Singh 1998 (2) R.C.R. (Civil) 441 that in a suit for mandatory injunction, Order 15 Rule 5 CPC can not be invoked. With respect, I am unable to subscribe to the view given by my learned brother Justice Satpal. It is too narrow an interpretation of law. The suit for recovery of possession could be a suit as such and if relief claimed for recovery of possession is couched in the form of a relief of mandatory injunction, it ought not to be taken that it is a suit for any relief other than for recovery of possession. It is the content of the suit, which is material and not the frame of the suit as made. I, therefore, reject the argument of the learned counsel that the plaintiff is not entitled to invoke the provision of Order 15 Rule 5 of the Code of Civil Procedure in any suit for mandatory injunction.
The other argument is that the plaintiff has claimed that the defendant is only licencee and not suit by a lessor for eviction. This is a suit in relation to SCO 63, Sector 20 C, Chandigarh, the property which was said to have been allotted to the plaintiff by the Estate Officer, Chandigarh. The property in exclusive possession of plaintiff was handed over to the defendants through a document styled as licence deed and for a period of 11 months. Admittedly, the defendants continued in the premises and they have taken up a plea that it is not merely licence but it is a lease. Whether the document could be acted as licence and whether the plaintiff could obtain a relief of recovery of possession in a civil court without resorting to redressal through Rent Controller, if it is lease, shall be considered at the time of trial. At least for the limited purpose of examining the defendants' own contention that they are licencees undertaking to depositing the admitted amount since 2003 per month, it is fair enough that they are made CR No. 4028 of 2013 3 to deposit `25,000/- per month from the time they have not paid till conclusion of the trial. A direction for deposit of an amount admitted by the defendant as his own liability as rent for lease. No prejudice could be caused by such a direction.
The State amendment brought under Order 15 Rule 3 CPC itself is to keep the scales even to secure for a landlord an assured amount by way of deposit by a person, who is in possession and who wants to resist a suit for recovery of possession. The deposit itself ought not to be taken in concluding the issue that the suit ought to succeed for recovery. The defendants who have been called upon to deposit do the minimum of what otherwise they are required to do. The counsel makes a pretense on behalf of the party that they are not shying from depositing the directed amount, but when asked why they have not deposited, he only contends that it would amount to accepting the case set up by the plaintiffs. Even if Order 15 Rule 5 CPC cannot be invited, a direction to deposit admitted amount must be construed in what is in exercise of inherent jurisdiction of the Court. The impugned order passed is just, in the circumstances of the case and is maintained.
Revision petition is dismissed.
July 9, 2013 (K.KANNAN) prem JUDGE