JUDGMENT Zotting D.S., J.
1. Heard Shri V.D. Sapkal, learned Counsel for the petitioners and Shri Arunchandra Kapadia, learned Counsel for the respondent.
2. Rule. Rule made returnable forth with. Taken up for hearing by consent of both the parties.
3. The petitioners are the tenants in suit premises and the respondent is the landlord. Tenants have challenged the order dated 1-12-2004 passed below Exh. 12 in Rent Suit No. 53/2002. The landlord has filed the said suit for recovery of rent and possession of the suit premises. The landlord has claimed that the tenants are in arrears of rent from August, 1999 to August 2003.
4. Admittedly, the tenants are in possession of the suit premises on monthly rent of Rs. 6,000/-. The tenants have admitted at para 13 of the written statement (Exh. 11) that they paid rent up to December, 2001. During the pendency of the suit, the landlord has filed the application Exh. 12 under Order 15-A of the Code of Civil Procedure, 1908 for seeking direction to the tenants to deposits the arrears of the rent. Upon hearing both the parties, the learned Judge passed the order as under:
"1) The defendants are directed to deposits the rent from January -2002 till December, 2004 at the monthly rent of Rs. 6000/- p.m. within one month from order of this Court.
2) Defendants are further directed to continue to deposit Rs. 6000/- p.m. in each succeeding month till the decision of suit.
3) In the event of any default in making the deposit, Court may strike off the defence of the defendant as per Order 25-A, Rule 3 of C.P.C."
5. Aggrieved thereby the tenants have filed this petition under Article 227 of the Constitution of India and challenged the said order. It is to be noted that the order under challenge has been passed as per the provisions of Rule 1 of Order 15-A of the Code of Civil Procedure, 1908.
Rule 1 of Order 15-A of the C.P.C. reads thus-
(1) In any suit by a lessor or a licensee against a lessee or a license, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesne profits from him, the defendant shall deposits such amount as the Court may direct on account of arrears up to the date of the Order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the Court may direct. The defendant shall, unless otherwise directed continue to deposit such amount till the decision of the suit.
In the event of any defaulting in making the deposits, as aforesaid, the Court may subject to the provisions of Sub-rule (2) strike off the defence."
6. In a suit between the landlord and tenant after the tenancy was determined by the landlord if, no payment is made by the tenant at the agreed rate also and under such circumstance if it appears that unless and until decree for mesne profits is passed the landlord will not be in a position to get the compensation or money for use and occupation of tenant of his premises then in order to mitigate the agony of the landlord is not receiving the payment for use ad occupation by tenant at least at agreed rate of the rent for a long period till decision of the suit, the power to pass on interlocutory order in the nature of Order 15-A, Rule 1 of C.P.C. has been conferred upon the Court, so that till tenant is using the premises of the landlord, he should continue to pay the rent at the agreed rate. Other wise, due to procedural delays caused in the final adjudication of the suit, the interest of landlord would be adversely affected. The power to direct the tenant to deposit arrears of rent and to direct him to continue to make payment to the landlord at the agreed rate is, therefore, a procedural power conferred upon the Court to do justice to the nature of its.
7. Therefore, in all the proceedings for eviction filed under the provisions of the Rent Act the provisions of Order 15-A of C.P.C. is applicable and Court is empowered to follow the procedure under Order 15-A of C.P.C. to call on the tenant to deposit the rent in arrears and to continue to deposit the rent which may become due and payable in the course of the proceedings. In this regard, if any authority is needed, it is to be found in the decision of Single Judge of this Court reported in Shantaram Janu Raut v. Smt. Claradas Lourds, 1997(Supp.) Bom.C.R. 75 : 1998(1) Mh.L.J. 639.
8. As already pointed out, the tenants have admitted in their written statement that they have paid rent up to the rent end of December, 2000. Thus, from their own admission, they are in arrears of rent since January, 2001 onwards. In view of this admission, the trial Court directed the tenants to deposits the rent from January, 2002 till December, 2004 at the agreed monthly rent of Rs. 6,000/- vide order dated 01-12-2004. The said order appears legal and in accordance with the provisions of Rule 1 of Order 15-A of C.P.C., therefore there appears no error on part of the trial Court in exercising the jurisdiction in passing the said order.
9. It is the grievance of the tenants that the landlord has disconnected water supply, hence, they were constrained to stop their business and as such they could not pay the rent. As against this, the landlord raised the plea of subletting by the petitioners, during the course of the argument. Suit is pending, hence, such contentions can not be entertained in the present petition.
10. It is submitted by the learned Counsel for the petitioners (tenants) that the landlord has filed Rent Suit 35/2002 and oduring pendency of the Rent Suit, another Rent Suit No. 52/2002 has been filed for the same rent i.e. rent and possession. He further submits that, therefore, the tenants filed application under Section 10 of the Code of Civil Procedure, 1908 for stay of subsequent Rent Suit No. 52/2002 as the relief claimed in subsequent suit is same. The grievance of the tenants is that the said application is not decided and the Court went on to decide Exh. 12 for arrears of rent by the impugned order.
As against this, the learned Counsel for the respondent (landlords) submits that, the first suit is for arrears of rent for three years i.e. September 1999 to August, 2002, whereas, the subsequent suit is for further period. However, the fact as to since when tenants are in arrears, is mentioned in the subsequent suit. It is further submitted that second suit is filed for different causes of action and for that purpose also leave of the Court was obtained.
11. Having gone through the impugned order and the contentions raised by parties, the pendency of the application under Section 10 of the Code of Civil Procedure, 1908, filed by the tenants, cannot does not render the impugned order passed on Exh. 12, directing the tenants to deposit the arrears of rent, as illegal. The impugned order is in accordance with the provisions of Order 15-A of the Code of Civil Procedure, 1908 and there is no jurisdictional error in passing such order. Therefore, this writ petition is devoid of any merit and deserve to be dismissed and it is dismissed accordingly.
12. However, as the application under Section 10 of the Code of Civil Procedure, 1908 filed by the tenants, is pending, the trial Court shall decide the same expeditiously.
13. Rule is discharged.