Andhra Pradesh High Court - Amravati

Proddatur vs K. Saleem Basha on 18 April, 2022

            THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              CIVIL REVISION PETITION No.298 of 2021

ORDER:

Aggrieved by the Order dated 04.01.2021 passed in I.A.No.150 of

2019 in O.S.No.81 of 2019 on the file of the Principal Junior Civil Judge,

Proddatur, YSR Kadapa District, the present Civil Revision Petition

is filed.

2. Heard Mr.Virupaksha Dattatreya Gouda, learned counsel for the

petitioners and Mr.Syed Kaleemulla, the learned counsel for the

respondent.

3. The petitioners herein are the plaintiffs in the above referred suit,

which is filed against the respondent/defendant for eviction from the suit

schedule property and for other reliefs. In the said suit they filed

I.A.No.150 of 2019 under Order 15-A of the Code of Civil Procedure for a

direction to the respondent/defendant to pay all the arrears of rent and

also enhanced agreed rents amounting to Rs.1,96,020/- due for the period

from June, 2017 to 31.01.2019 and a further direction to continue to pay

the said agreed enhanced amount of Rs.10,401/- every month

commencing from the date of suit and continue to pay at the end of every

succeeding month, pending disposal of the suit, failing which the defence

of respondent/defendant may be struck off.

4. The respondent/defendant opposed the said application by filing a

counter affidavit, wherein it was inter alia contended that he never

entered into Lease Agreement with the petitioners/plaintiffs to pay rent of

Rs.8,001/- per month commencing from 01.11.2015 and to read the

contents of the written statement, as part and parcel of the counter.

NJS, J Crp_298_ 2021

5. The respondent/defendant also raised a plea with regard to

ownership of the petitioners/plaintiffs on the premise that the Municipality

has been collecting Encroachment Tax from the respondent treating him

as „encroacher‟ of Municipality Property.

6. The learned Trial Judge after considering the matter, by an Order

dated 04.01.2021 dismissed the above said I.A, inter alia, placing reliance

on the decision of a learned Judge of the erstwhile High Court of Andhra

Pradesh at Hyderabad in K.Zakaria Shaik vs. K. Saleem Basha1.

Hence, the present Civil Revision Petition.

7. The learned counsel for the petitioners inter alia contends that the

learned Trial Court failed to exercise the jurisdiction vested in it and

committed a material irregularity in dismissing the I.A filed by the

petitioners and the same is therefore liable to be interfered with by this

Court. He submits that the learned Trial Court ought to have appreciated

that there is no dispute about the jural relationship of landlord and tenant

between the parties or with regard to admitted rent and in such

circumstances, the rejection of the petitioners‟ prayer for deposit of

admitted rents is not sustainable.

8. While drawing the attention of this Court to the contents of plaint in

O.S.No.259 of 2017, which was marked as Ex.A.3, the learned counsel for

the petitioners further submits that the said suit was filed by the

respondent herein against the 1st petitioner herein and another seeking

Decree and Judgment of permanent injunction restraining them and their

men etc., in any way interfering with peaceful possession and enjoyment

of the plaint schedule property so as to dispossess him from the same,

abruptly by unlawful means, without due process of law.

1(2011) 6 ALT 288

NJS, J Crp_298_ 2021

9. He submits that in the said plaint the respondent admitted the jural

relationship between the parties and admitted rent of Rs.8,001/- per

month and further that the copies of counterfoils evidencing the deposit of

rent at the rate of Rs.8,001/- per month, were marked as Ex.A.5 in the

present suit. He submits that despite ample material on record, the

learned Trial Judge without looking into the said documents went wrong in

taking into consideration only the counter averments, wherein the

respondent/defendant raised a dispute with regard to arrears of rent and

existence of any Lease Agreement between the parties. He further

submits that the learned Judge misconstrued the decision rendered in

K.Zakria‟s case referred to supra and went wrong in dismissing the

application filed under Order 15-A of CPC without considering the same in

a proper perspective.

10. The learned counsel also placed reliance on the Judgments of the

Hon‟ble Supreme Court in Basant Singh vs. Janki Singh2, Manik Lal

Majumdar and Others vs. Gouranga Chandra Dey and Others3,

M.B. Chander and others vs. M/s Balakrishna Rao Charitable

Trust4 and Sitaramacharya (Dead) through L.Rs v. Gururajacharya

(Dead) through L.Rs5 Making the said submissions the learned counsel

urges that the Order under Revision is liable to be set aside.

11. Per contra, the learned counsel for the respondent submits that the

Order under Revision warrants no interference, in as much as, the same

contains cogent reasons and in accordance with the decision rendered in

K.Zakria‟s case referred to supra. It is further submitted that when the

very rent is in dispute, the learned Trial Court was right in its opinion to

2 AIR 1967 SC 341 3 AIR 2005 SC 1090 4 (2016)6 ALT 1 5 AIR 1997 SC 882

NJS, J Crp_298_ 2021

the effect that it is open to the parties to agitate the matters with regard

to quantum of rent, arrears of rent and the period of default etc., in the

main suit and no interim relief can be granted when there is a dispute with

regard to execution of the Lease Agreement, arrears of quantum of rent.

He further submits that the decisions relied on by the counsel for the

petitioners are not applicable to the facts of the present case. Accordingly,

he urges for dismissal of the present Revision Petition.

12. This Court has considered the contentions advanced by the learned

counsel on both sides and perused the material on record.

13. It is not in dispute that prior to filing of the suit by the petitioners

herein against the respondent, a suit in O.S.No.259 of 2017 was filed by

him against one Mr.G.Bhaskar Rao and the 1st petitioner herein, seeking

permanent injunction in respect of the very same schedule property,

which is the subject matter in the suit filed by the petitioners. A reading of

the plaint filed in O.S.No.259 of 2017, which was marked as Ex.A.3 in

O.S.No.81of 2019 would go to show that a Lease Agreement dated

23.10.2015 was executed by the respondent herein in respect of the

schedule premises with agreed rent of Rs.8,001/- per month. Thus,

though a plea was taken in the counter filed in I.A.No.150 of 2019 with

regard to ownership, which is required to be gone into after the full-

fledged trial, there is no dispute with regard to admitted rents at the rate

of Rs.8,001/- per month.

14. At this juncture, it may perhaps be apt to refer to the Judgments

relied on by the learned counsel for the petitioners.

NJS, J Crp_298_ 2021

15. In Basant Singh‟s case referred to supra, the Hon‟ble Supreme

Court while referring to Section 17 of the Indian Evidence Act, 1872 and

the English Law of Evidence at Para 6 held as follows:-

"Para 6: Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns a Macq. 212., the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true."

16. In Sitaramacharya‟s case referred to supra, the Hon‟ble Supreme

Court inter alia opined that "the admissions in the written statement in the

earlier proceedings, though not conclusive, in the absence of any

reasonable and acceptable explanation, it is a telling evidence heavily

loaded against the respondent."

17. In the light of the above expressions of the Hon‟ble Supreme Court,

this Court finds merit in the contentions advanced by the learned counsel

for the petitioners that the learned Trial Judge ought to have taken into

the plaint averments in O.S.No.259 of 2017 with regard to admitted rent

of Rs.8,001/- per month into consideration and directed the deposit of the

said amount, pending disposal of the suit.

NJS, J Crp_298_ 2021

18. The learned Trial Court, as rightly pointed out by the learned

counsel for the petitioner, instead of considering the material on record

i.e., Ex.A.3 copy of plaint in O.S.No.259 of 2017 and the counterfoils

(19 in No.) evidencing deposit of rent, marked as Ex.A.5, gave much

weight to the averments made in the counter filed in I.A.No.150 of 2019

and went wrong in opining that there is a dispute with regard to the

admitted rents and applied the decision in K.Zakria‟s case referred to

supra, to the facts of the present case. The approach of the learned Trial

Court, in the considered opinion of this Court, in the attending facts and

circumstances, is not correct or tenable.

19. In Manik Lal Majumdar‟s case referred to supra, a three-bench of

the Hon‟ble Supreme Court was dealing with a matter, wherein the issue

involved is whether an appeal preferred under Section 29 of Tripura

Buildings (Lease and Rent Control) Act, 1975 when payment to the

landlord or deposit with the appellate Court or arrears of rent admitted by

tenant to be due is not maintainable and is liable to be rejected on that

ground.

20. In that context, the Hon‟ble Supreme Court considered the

expression "all arrears of rent admitted by tenant to be due" under

Section 13 of the said Act and while referring to the decision of a Division

Bench of Gowhati High Court in 1994 (1) GLR 98, the Hon‟ble Supreme

Court opined that the view taken by the Division Bench of the High Court

is perfectly sound as giving a literal meaning to the expression "all

arrears of rent admitted by tenant to be due" may defeat the very

object of undertaking Section 13 of the Act and an unscrupulous tenant

NJS, J Crp_298_ 2021

may continue to encroach the premises without payment of any rent to

the landlord by protracting the litigation and may wait till finalization of

the case to recover his dues by having execution proceedings.

21. As held by the learned Judge of the erstwhile High Court for the

State of Telangana and the State of Andhra Pradesh in M.B. Chander‟s

case referred to supra, even when the defendant pleads no arrears or

disputes the quantum of rent summary enquiry is mandatory. The learned

Judge after referring to the relevant Rules under Order 15-A of CPC, held

as follows:-

"40. In view of my foregoing discussions, I hold that the Court is competent to make summary enquiry under Order XV-A Rule 2 when the tenant pleaded no arrears or disputed quantum of rent to decide the arrears of rent payable and rent payable, issue directions, postponing the same to final decision by the Court and direct to decide the arrears, as required under Rule 2 and continue to deposit at the same rate during pendency of the suit or proceedings before competent Court. Otherwise, it amounts to encouraging unscrupulous tenants who intend to avoid payment of rent for the premises in their occupation for decades together which would certainly result in substantial loss to the landlord during pendency of the eviction suit or proceedings based on account of abortive pleas raised by the unscrupulous tenants."

22. In the light of the above decisions, this Court is of the considered

opinion that the Order under Revision without taking into account the

plaint averments in O.S.No.259 of 2017 with regard to admitted rents is

not sustainable and the same suffers from material irregularity and liable

to be set aside.

23. The Civil Revision Petition is accordingly, allowed. The Order dated

04.01.2021 is set aside. I.A.No.150 of 2019 in O.S.No.81 of 2019 on the

file of the Principal Junior Civil Judge, Proddatur, YSR Kadapa District is

NJS, J Crp_298_ 2021

allowed with a direction to the respondent to deposit arrears of admitted

rents of Rs.8,001/- per month from June, 2017 onwards within a period of

three (03) months from the date of receipt of a copy of this Order. He