Andhra Pradesh High Court - Amravati
P. Praveen vs V. Suseela on 4 February, 2021
Bench: M.Ganga Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
Civil Revision Petition No.2430 of 2019
Between:
P. Praveen
.....Petitioner
And:
V. Suseela
...... Respondent
JUDGMENT PRONOUNCED ON : 04.12.2020
HON'BLE SRI JUSTICE : M. GANGA RAO
1. Whether Reporters of local
Newspapers may be allowed to see
the Judgments? :
2. Whether the copies of judgment
may be marked to Law Reporters/
Journals?
3. Whether their Ladyship/Lordship
wish to see the fair copy of the
judgment? :
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C.R.P.No.2430 of 2019
*HONOURABLE SRI JUSTICE M. GANGA RAO
+ C.R.P.No.2430 of 2009
% 04-12-2020
# P. Praveen, S/o Uma Maheswar, Hindu, aged
31 years, Proprietor of Sri Pawan Palace, residing
At 18-2-268/16, Sri Pawan Palace, Ashok Nagar,
Leela Mahal Junction, Tirupathi, Chittoor District.
... Petitioner
Vs.
$ Smt. V. Suseela, W/o V. Siddaiah, Hindu, aged
50 years, Landlady, R/o 19-13-103, Padmavathi
Nilayam, Flat No.308, Narayanapuram, Tirupathi,
Chittoor District
... Respondent
! Counsel for the Petitioner: Sri Srinivasulu Kurra
Counsel for Respondent : Sri K.G. Krishna Murthy,
Senior Counsel
< Gist:
> Head Note:
? Cases referred:
1) 2019 (6) ALD 206
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C.R.P.No.2430 of 2019
HONOURABALE SRI JUSTICE M. GANGA RAO
Civil Revision Petition No.2430 of 2019
ORDER:
The petitioner is the plaintiff and tenant, in a suit for injunction
against the landlady, filed this Civil Revision Petition under Article
227 of the Constitution of India to set aside the order dated
22.07.2019 in I.A.No.665 of 2018 in O.S.No.289 of 2018 passed by
the IV Additional District Judge, Tirupathi, wherein the petition filed
by the respondent/defendant under Order XV-A read with Section
151 of the Code of Civil Procedure, 1908 for deposit of arrears of
rent was allowed directing the petitioner/plaintiff to deposit rents as
per the terms and conditions of registered lease deed dated
02.04.2016 from the registered notice dated 24.07.2018 issued by
the defendant till date within one month from the date of the order,
as being illegal, arbitrary and contrary to the provisions of Order XV
A CPC without jurisdiction.
For the sake of convenience the parties hereinafter called as
arrayed in the suit before the trial Court.
The plaintiff filed the suit for permanent injunction restraining
the defendant, her agents, servants or any body on her behalf in any
way from interfering with the plaintiff's peaceful possession and
enjoyment and running the hotel business under the name and style
of 'PAWAN PALACE' either by trespass or by forcible dispossession
or in any other manner unknown to law, until the plaintiff is duly
evicted under due process of law and for direction to the defendant
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to pay the costs of the suit along with I.A.No.583 of 2018 for ad-
interim injunction and the injunction was granted by the trial Court.
When the suit is coming for filing written statement, the defendant
filed a petition under Order XV A read with Section 151 CPC to
direct the plaintiff to pay arrears of rent from 02.08.2017 to
01.04.2018 for a period of nine months at the rate of Rs.1,80,000/-
comes to Rs.16,20,000/-, from 02.04.2018 to till filing of the petition,
for a period of 7 months at the rate of Rs.2,30,000/- comes to
Rs.16,10,000/- total arrears of rent of Rs.32,30,000/- and further
direct him to continue to pay the admitted future rent at the rate of
Rs.2,30,000/- from 02.11.2018 onwards till the disposal of the suit in
terms of registered lease deed. The plaintiff filed counter denying the
averments made in the affidavit filed in support of the petition,
specifically stating that the plaintiff is not liable to pay rent from
02.08.2017 to 01.04.2018 for a period of nine months at the rate of
Rs.1,80,000/- per month amounting to Rs.16,20,000/- and the
plaintiff is not liable to pay the enhanced rent from 02.04.2018 till
date, for a period of 7 months, a total sum of Rs.16,10,000/- and the
calculation is totally wrong and misleading. The plaintiff is not in
arrears of payment of rent of Rs.32,30,000/- as alleged. The plaintiff
filed the suit on 01.11.2018. The plaintiff has paid the rents up to the
end of September, 2018 and rents from October, 2018 alone is
payable and in view of the damages and other atrocities committed
by the defendant and her people the rent was not paid, as the
defendant damaged properties worth Rs.1,50,00,000/-. The plaintiff
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reserves his right to claim damages. The Trial Court, without
conducting any enquiry, allowed I.A.No.665 of 2018 in part, directing
the plaintiff to deposit rents as per the terms and conditions of
registered lease deed dated 02.04.2016 from the registered notice
dated 24.07.2018 issued by the defendant till date within one month
from the date of the order, holding that initially agreed rent between
the parties as per the lease agreement dated 02.04.2016 was
Rs.1,80,000/-, the defendant admittedly issued a notice dated
24.07.2018 to the plaintiff through her counsel and admittedly the
plaintiff did not pay the rent after issuance of the said notice.
Whether the defendant is entitled for the rents from 02.08.2017
onwards as sought by her, can only has to be considered after
evidence let in by both the parties. The contention of the plaintiff that
the defendant agreed to receive rent at the rate of Rs.60,000/- also
has to be decided after both parties let in oral and documentary
evidence.
Sri Srinivasulu Kurra, learned counsel for the petitioner/plaintiff
would contend that the court below passed the order under revision
without jurisdiction and contrary to the provisions of Order XV-A
CPC. The provisions of Order XV-A CPC, enables the lessor to file
application in the lessor's suit filed for eviction and recovery of
possession or recovery of arrears of rent, but not in the suit filed by
the plaintiff/lessee not to evict and interfere with the peaceful
possession and enjoyment of the leased property without following
due process of law. The court below prejudged the issue of payment
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of arrears of rent pending adjudication of the injunction petition,
which is illegal and arbitrary, thereby the court below committed
error of law and error of fact in passing the impugned order, which
warrants interference of this court and the order impugned is liable to
be set aside and prays to allow the Civil Revision Petition.
Per contra, Sri K.G. Krishna Murthy, learned senior counsel
appearing for Sri P. Ram Bhoopal Reddy, learned counsel on record
for the respondent would contend that the object of the provisions of
Order XV A CPC is only to safeguard the interest of the landlord
pending suit. The application is maintainable in a suit for permanent
injunction filed by the tenant against the landlord pending
adjudication of the suit, for payment of undisputed arrears of rents in
the same analogy as provided in Section 11 of the Rent Control Act,
to safeguard the interest of the landlord, the application is
maintainable under Order XV A read with Section 151 CPC, in a suit
for injunction filed by the tenant, when it is not specifically barred by
the provisions of Order XV-A CPC. The provisions of Section 11 of
the Rent Control Act, obligates the tenant to file an application to
deposit the arrears of rents due in a suit for injunction. In support of
his contention, the learned counsel placed his reliance on a decision
of this court in P. Brahma Sai and others v. State of Andhra
Pradesh and others1, wherein it is held that the application under
Order XV-A CPC is maintainable by the plaintiff/landlord, in a suit for
recovery of rents, there is no dispute with regard to said legal
2019 (6) ALD 206
7 MGR, J
C.R.P.No.2430 of 2019
position. But, the facts situation in the present case is totally
different, the decision could not support the case of the defendant.
Hence, the contention of the counsel for the petitioner that the
application by the landlord is maintainable in a suit filed by the
tenant for permanent injunction has no merit consideration. He
would further contend that the court below rightly entertained the
application filed under Order XV-A of CPC read with Section 151
CPC, and ordered the petitioner/tenant to pay the undisputed
arrears of rent, for which the petitioner admitted in the open court.
He would further contend that the order impugned is a discretionary
order, and the court below rightly exercised its discretion and passed
the order under revision. The order does not suffer from any illegality
and irregularity which warrants interference of this Court under
revisional jurisdiction under Article 227 of the Constitution of India
and the Civil Revision Petition is liable to be dismissed.
Having regard to the facts and circumstances of the case,
considering the submissions of the counsel and on perusal of the
record, the points that falls for consideration of this court is that;
1) Whether the application filed by the landlady under Order XV A
read with Section 151 CPC is maintainable against the tenant in
a suit filed by the tenant for permanent injunction restraining the
landlady and her men and agents from interfering with the
peaceful possession and enjoyment of the tenant without
following due process of law or not?
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2) Whether the court below is justified in passing the order under
revision and directing the petitioner/tenant to pay the arrears of
rent as indicated in the notice dated 24.07.2018 issued by the
landlady as per the lease agreement dated 02.04.2016?
Before considering the rival contentions, this court felt it
appropriate to read and understand the provisions of Order XV A
CPC (Provision is introduced by A.P. State Amendment) and it is
profitable to extract the provision:
"Order XV-A:
(1) In a suit for recovery of possession, on termination of lease, or
licence, with or without a prayer for recovery of arrears of rent, of
licence fee, known with whatever description, the defendant, while
filing his written statement, shall deposit the amount, representing
the undisputed arrears, calculated up to that date into the Court
and shall continue to deposit such amount, which becomes
payable thereafter within one week from the date on which it
becomes due, till the judgment is rendered in the suit.
(2) Whether the defendant pleads in the written statement that no
arrears of rent or licence fee exists, it shall be competent for the
Court to pass an order in this regard, after affording opportunity to
both the parties, and in case any amount is found due, the
defendant shall be under obligation to deposit the same, within
the time stipulated by the Court and continue to deposit the
amount which becomes payable thereafter, as provided under
Rule 1:
Provided that the time stipulated for payment of amount, as
aforesaid, may be extended by the Court for reason to be
recorded for a period not exceeding 15 days.
If the defendant commits default in making the deposits, as
aforesaid, the Court shall strike off the defence.
On such deposit, it shall be competent for the plaintiff to withdraw
the same.
Explanation-- The expression" the amount representing the
undisputed areas" shall mean the sum of rent, or licence fee
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C.R.P.No.2430 of 2019
calculated for the period for which it remained unpaid, after
deducting from it any amount.
(a) paid as tax, to a local authority, in respect of the property;
(b) paid to the plaintiff under written acknowledgment; and
(c) deposited into the Court, in any proceedings, in relation to the said
property."
The provisions of Order XV-A of CPC are brought into
existence in the Code of Civil Procedure by way of A.P. State
Amendment to protect the interest of the landlord pending suit for
eviction of tenant. The provision is introduced only to prevent the
tenant to take advantage of the pendency of the suit and not paying
rents to the landlord as the provisions of Section 151 CPC is not
adequate to deal with the situation of directing the tenant to pay
undisputed rents to the landlord.
A reading of the provisions of Order XV-A of CPC, clearly
postulates an obligation upon the defendant/tenant, in the suit for
recovery of possession, on termination of lease or licence with or
without prayer for recovery of arrears of rent, of licence fee while
filing his written statement, shall deposit the amount representing the
undisputed arrears of rent calculated up to date, into the court and
shall continue to deposit such amount, which becomes payable
thereafter within one week from the date on which it becomes due,
till the judgment is rendered in the suit. The object of the above
provision of law is only to protect interest of the landlord pending
adjudication of his suit for eviction. Even the provision enables the
plaintiff/landlord to file an application under Order XV-A of CPC to
seek a direction from the court to the defendant to pay undisputed
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C.R.P.No.2430 of 2019
arrears of rents, as per law. Hence, the defendant/landlord in a suit
filed by the plaintiff/tenant for permanent injunction and not to
interfere with the peaceful possession and enjoyment of the leased
property, is not entitled to file an application under Order XV-A of
CPC, as the plaintiff is not obligated to deposit the undisputed
arrears of rent in the suit as provided under Section 11 of the Rent
Control Act, where it specifically obligates the tenant to file an
application to deposit rents. In the absence of specific provision to
deposit arrears of undisputed rents by the plaintiff/tenant in a suit for
injunction restraining the landlord to evict the tenant, the deposit of
undisputed rents by the tenant cannot be read into the provision.
When similar issue of maintainability of the application under Order
XV-A of CPC filed by the defendant/landlord in a suit filed by the
tenant for declaration of termination of tenancy as illegal was fell for
consideration before the common High Court of Andhra Pradesh, in
the case of Prakash Arts v. Mohammed Rafiuddin reported in
(2011 (1) ALT 467), wherein it is held that the application submitted
by the defendant does not fit into the provisions of order XV-A of
CPC. Hence, the contention of the counsel for the
respondent/defendant that the application filed by the defendant is
maintainable is untenable. The further contention of the learned
counsel that the application is filed under Order XV-A of CPC read
with Section 151 CPC, and hence the court has inherent power to
entertain application filed by the defendant/landlord in the suit for
injunction restraining the defendant/landlord could not be accepted,
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when the provision under Order XV-A CPC specifically provides a
remedy to the landlord in a suit for recovery of possession, on
termination of lease or licence, if any, undisputed rents payable by
the tenant, the landlord's application for recovery of arrears of rent
alone is maintainable. The settled legal position of law is that the
inherent power under Section 151 of CPC could be exercised by the
court in the absence of any specific provisions and in exceptional
circumstances, sparingly only to meet the ends of justice. However,
the court cannot exercise such power in contravention of, or in
conflict with or upon ignoring express and specific provision of law. If
the application for payment of undisputed arrears of rent by the
defendant in a suit for injunction simplicitor is allowed to be
entertained, the scope of the suit could be enlarged, which is
prejudicial to the interest of the plaintiff, thereby the adjudication of
the suit could be delayed. When the application itself is not
maintainable under the provision of Order XV-A of CPC by the
defendant in a suit for injunction, merely by adding section 151 CPC
to the petition, does not enlarge the scope of main provision under
Order XV-A of CPC to empower the court below to entertain the
application filed by the defendant to deposit arrears of rent when
such an application is not maintainable under main provision. In view
of the above discussion, the point No.1 is answered in favour of the
petitioner/plaintiff.
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Point No.2:
The court below having held that initially the agreed rent
between the parties as per the lease agreement dated 02.04.2016
was Rs.1,80,000/-, the defendant admittedly issued a notice dated
24.07.2018 to the plaintiff through her counsel and admittedly the
plaintiff did not pay the rent after issuance of the said notice,
whether the defendant is entitled rents from 02.08.2017 onwards as
sought by her can only has to be considered after evidence is let in
by both the parties, grossly erred in directing the petitioner/plaintiff to
deposit arrears of rents as per the terms and conditions of registered
lease deed dated 02.04.2016 stating that the petitioner/plaintiff
accepted in the open court about non-payment of arrears of rents,
without conducting any enquiry much less summary enquiry in
quantifying the arrears of undisputed rents, as required under the
provisions of Order XV A CPC, when the petitioner/plaintiff denied
the due amount of rents. The court below without quantifying the
exact alleged arrears of rent directed the plaintiff to pay rents by
passing cryptic order, such casual approach on the part of the
learned Judge is highly reprehensive. Hence, this court found that
the order under revision is contrary to the provisions of Order XVA of
CPC. Accordingly, the point No.2 is answered in favour of the
petitioner/plaintiff.
In view of the above discussion, the order impugned is liable
to be set aside.
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C.R.P.No.2430 of 2019
Accordingly, the Civil Revision Petition is allowed by setting
aside the order dated order dated 22.07.2019 in I.A.No.665 of 2018
in O.S.No.289 of 2018 passed by the IV Additional District Judge,
Tirupathi as the same is illegal, arbitrary and contrary to the
provisions of XVA read with Section 151 CPC. However, without
costs.
As a sequel thereto, miscellaneous petitions, if any, pending
shall stand closed.
________________
M. GANGA RAO, J
Date: 04-12-2020
Note: L.R. copy to be marked.
B.O./Ksn
