Judgment 1 wp7007.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7007 OF 2016
Santosh @ Ambadas s/o. Jayendra
Deorankar, Aged about 46 years, Occu.: Jobwork,
R/o. Budhwara, Amravati, Tq. & Distt.
Amravati, by his power of attorney holder
Jayendra Sadashiv Deorankar, Advocate,
Budhwara, Amravati.
.... PETITIONER.
// VERSUS //
1. M/s. Khemka Automobiles,
5 Residency Road, Sadar,
Nagpur - 440 001
(Formerly at Badnera Road, Amravati)
A partnership firm by partner
Shri J.P. Khemka.
2. Shri J.P. Khemka,
Aged : adult, Occupation :Business,
3. Shri Raghu Khemka,
Aged : adult, Occupation :Business,
Respondents Nos. 2 and 3 are partners
of Respondent No.1
Respondents No. 2 & 3 R/o. Nagpur-5,
Residency Road, Sadar, Nagpur-440001.
4. Sandeep s/o. Radheshyamji Chandak,
aged adult, R/o. Prabhat Chowk,
Amravati. 2Nd Address - Rajat Villa,
behind Jaishree Talkies, Cotton Market
Square, Nagpur, Tq. & Dist. Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri J.J.Chandurkar, Advocate for Petitioner.
None for the respondents.
___________________________________________________________________
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Judgment 2 wp7007.16.odt
CORAM : Z.A.HAQ, J.
DATED : DECEMBER 20, 2017.
ORAL JUDGMENT :
1. None appears for the respondents though served.
2. Heard Shri J.J. Chandurkar, Advocate for the petitioner/ decree holder.
3. The petitioner had filed Small Causes Civil Suit No. 87 of 2005 praying for decree for ejectment, possession and damages. In the civil suit, the petitioner/ plaintiff had filed an application under Order 15-A read with Section 151 of the Code of Civil Procedure seeking directions against the defendants to deposit/ pay the amount of arrears of rent and continue to pay the same regularly. This application was rejected by the trial Court. The order passed by the trial Court rejecting application filed by the petitioner/ plaintiff was challenged before this Court in Writ Petition No. 1386 of 2011 which was allowed by the judgment dated 2 nd April, 2012. This Court had directed the defendant Nos. 1 to 3 to deposit the amount of Rs.66,250/- before the trial Court within two months from 23 rd April, 2012. This Court had directed the defendant Nos. 1 to 3 to deposit regularly the amount of Rs.1250/- per month from 1st December, 2009 till the decision of the civil ::: Uploaded on - 03/01/2018 ::: Downloaded on - 04/01/2018 23:05:04 ::: Judgment 3 wp7007.16.odt suit. The civil suit is decreed by the judgment dated 13 th March, 2015. The judgment and decree passed by the trial Court is challenged by the respondent Nos. 1 and 2 in Regular Civil Appeal No.70 of 2015. The respondent No.4 has separately challenged the judgment and decree passed by the trial Court by filing Regular Civil Appeal No. 68 of 2015. It is submitted by the learned advocate that the petitioner that the respondent No.3 has not challenged the judgment and decree passed by the trial Court.
4. In Regular Civil Appeal No. 70 of 2015, the petitioner/ decree holder filed application (Exh.10) under Order 15A read with Section 151 and 107 of the Code of Civil Procedure contending that after the judgment is delivered in Writ Petition No.1386 of 2011, the defendant Nos. 1 and 2 deposited an amount of Rs.1,12,500/- on 11 th June, 2012, deposited amount of Rs.3,750/- on 5th February, 2013, deposited amount of Rs.7,500/- on 30 th July, 2013, deposited amount of Rs.3,750/- on 27 th November, 2013 and deposited amount of Rs.5,000/- on 15 th April, 2014 and after April, 2014 the defendants have not deposited the amount of rent/ occupation charges. According to the petitioner/ decree holder, the defendant Nos. 1 to 3 failed to deposit the amount towards occupation charges for the period from May, 2014 till March, 2015 i.e. till the decision of the civil suit and this is in defiance of the directions given by this Court. According to the petitioner/ decree holder, the defendants were under obligation to regularly deposit the amount of Rs.1,250/- per month towards occupation charges even during ::: Uploaded on - 03/01/2018 ::: Downloaded on - 04/01/2018 23:05:04 ::: Judgment 4 wp7007.16.odt pendency of the appeal before the District Court, but they have not deposited any amount. The petitioner/ decree holder prayed that as the defendant Nos.1 and 2 have failed to comply with the directions given by this Court regarding deposit of occupation charges, their defence be struck-off and the appeal filed by them be dismissed.
5. According to the petitioner, the application for striking down defence of the defendant Nos. 1 and 2 (civil suit proceeded exparte against the defendant No.3) could not be filed till disposal of the civil suit because of the nature of directions given by this Court as recorded in paragraph 6 of the judgment, enabling/permitting the defendant Nos. 1 to 3 to deposit the amount till the disposal of the civil suit. Relying on the provisions of Section 107(2), it is argued that the provisions of Order 15-A of the Code of Civil Procedure can be invoked by the party at the appellate stage also as the appeal is continuation of the civil suit. It is submitted that in any case the petitioner sought striking of defence of the defendant Nos. 1 and 2 under Section 151 of the Code of Civil Procedure and looking to the fact that the defendant Nos. 1 and 2 have not only willfully defied the directions given by this Court but have come out with the bold defence that the directions operated only till the disposal of the civil suit, the learned District Judge should have exercised jurisdiction under Section 151 of the Code of Civil Procedure and the defence of the defendant Nos. 1 and 2 should have been struck off and the appeal filed by them should have been dismissed. ::: Uploaded on - 03/01/2018 ::: Downloaded on - 04/01/2018 23:05:04 :::
Judgment 5 wp7007.16.odt
6. By the judgment given in Writ Petition No. 1386 of 2011 this Court directed the defendants to deposit the arrears of rent and to continue to deposit the amount of rent regularly every month. The directions given by this Court as recorded in paragraph No.6 of the judgment are as follows:
"6. ... They are further directed to continue to deposit regularly the amount of Rs.1,250/- per month from 1-12- 2009 till the decision of the suit. ..."
According to the petitioner, as per these directions the defendants could have deposited the amount till decision of the civil suit. Before the District Court it was argued on behalf of the defendants that "till decision of the suit" in the directions means the defendants were liable to deposit the amount of rent/ occupation charges till decision of the civil suit.
7. If the submission of the defendants as made before the District Court that the defendants were required to deposit the amount of rent/ occupation charges till the decision of the civil suit only, then also there is default by the defendant Nos. 1 and 2. The amount of rent/ occupation charges is deposited only till April, 2014 and it is not deposited from May, 2014 till March, 2015 when the civil suit is decided. The learned District Judge has failed to consider this relevant aspect.
8. Rule 2 of Order 15A of the Code of Civil Procedure requires that the defendant or his advocate shall be served with notice to show cause why ::: Uploaded on - 03/01/2018 ::: Downloaded on - 04/01/2018 23:05:04 ::: Judgment 6 wp7007.16.odt the defence should not be struck-off and before an order striking off defence is passed, the Court has to consider the explanation given by the defendant for not depositing the amount as directed by the Court. In the present case, this Court directed the defendants to continue to deposit the amount of Rs.1,250/- per month regularly till the decision of the civil suit. The defendant Nos. 1 and 2 have not deposited the amount from May, 2014 till the civil suit is decided in March, 2015. The defendant Nos.1 and 2 have not deposited the amount of rent/occupation charges, as directed by this Court, even after the decision of the civil suit and during pendency of the appeal filed by them before the District Court. Instead of giving any explanation pointing out any justifiable reason for not depositing the amount and instead of showing willingness to deposit the amount, the defendant Nos. 1 and 2 raised a bold defence before the District Court that as per the directions given by this Court they were required to deposit the amount only till the decision of the civil suit. The effect is that the defendant Nos. 1 and 2 continue to occupy the premises without paying anything and that too after directions given by this Court.
Considering the facts of the case, I find that the learned District Judge has failed to exercise the jurisdiction vested in him and has committed an error by rejecting the application filed by the petitioner / decree holder. ::: Uploaded on - 03/01/2018 ::: Downloaded on - 04/01/2018 23:05:04 :::
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9. As far as maintainability of the application is concerned, in my view, Order 15-A of the Code of Civil Procedure can be invoked at the appellate stage also in view of the provisions of Section 107(2) of the Code of Civil Procedure. In any case, the appellate Court can exercise jurisdiction under Section 151 of the Code of Civil Procedure in such situation for the ends of justice.
The learned District Judge has failed to exercise jurisdiction vested in him by rejecting the prayer of the petitioner to strike off the defence of the respondent Nos. 1 and 2.
In view of the above, the following order is passed:
i) The impugned order is set aside.
ii) The defence of the respondent Nos. 1 and 2 is struck off.
iii) The learned District Judge is directed to decide the appeal till 5 th
May, 2018.
iv) Regular Civil Appeal No. 68 of 2015 filed by the present
respondent No.4 shall also be decided till 5th May, 2018. Rule is made absolute in the above terms.
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Judgment 8 wp7007.16.odt Respondent Nos.1 and 2 (defendant Nos.1 and 2) have not assisted this Court and have opted to stay out of the proceedings. The defendant Nos. 1 and 2 shall pay amount of Rs.Twenty Thousand towards costs to the petitioner/ decree holder and produce receipt of it on record of the appeal within one month, failing which the learned District Judge shall pass appropriate order against the defendant Nos. 1 and 2, considering it to be non-compliance of the order passed by this Court.
JUDGE RRaut..
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