Bhimrao S/O Laxmanrao Nihare vs Natwarlal S/O Ratansi Thakkar
2003 Latest Caselaw 138 Bom

JUDGMENT

S.T. Kharche, J.

1. Rule taken up for final hearing with the consent of the parties.

2. Heard Mr. Deshpande, learned Counsel, for the applicant and Mrs. Sirpurkar, learned Counsel, for the respondent.

3. This revision is directed against an order dated 2.8.1996 passed by the learned Civil Judge, Jr. Dn., Umrer in Reg. Civil Suit No. 171 of 1985, whereby he dismissed the suit on account of non-compliance of the order passed below Ex. 36 on 28.11.1986 directing the tenant to deposit the rent on the first day of each month regularly since December, 1996.

4. The brief facts are as under:

The applicant is the tenant and the non-applicant is the landlord. The tenant had instituted Regular Civil Suit No. 171 of 1985 seeking relief of injunction simpliciter restraining the landlord from disturbing his peaceful possession. The landlord had filed an application under Order XVA read with Order XXXIX, Rule 11 of the Civil Procedure Code with a prayer that the suit be dismissed as the tenant has not complied the order dated 28.11.1996 by which he was directed to pay the rent regularly at the rate of Rs. 207/- per month along with the arrears of rent and was also directed to deposit the current and future rent on the first day of each month. This application of the landlord was allowed and the suit was dismissed by the learned Trial Court and this is the order that has been challenged in this revision.

5. The learned Counsel for the tenant vehemently argued that he was ready and willing to deposit the entire arrears of rent in the Court but the Trial Court did not pass the order on various applications and, therefore, the rent could not be deposited. He further contended that the learned Trial Judge has committed an error in dismissing the suit on the ground of non-compliance of the order dated 28.11.1996 passed below Exh. 36 and, therefore, the revision deserves to be allowed.

6. The learned Counsel for the landlord contended that the revision itself is not maintainable as appeal is provided against such order vide Bombay Amendment introduced on 1.10.1983 in Order XL1II, r. l(r) of the Civil Procedure Code. She further contended that the tenant was not ready and willing to deposit the rent and has committed defaults and not complied with the order. She has also contended that the tenant is not living in the suit premises nor he is carrying on any business in it and he left the suit premises in the year 1988 and since then the premises is in a dilapidated condition which is not having any roof, door or window. Therefore, according to her, the learned Trial Judge was perfectly justified in dismissing the suit.

7. The short question that arises for determination is whether the revision is tenable and whether the impugned order of dismissal of the suit is legal and correct.

8. On thoughtful consideration of the contentions canvassed by the learned Counsel for the respective parties. I am of the view that the revision is not maintainable and the order of dismissal of suit deserves to be upheld.

9. The learned Counsel for the respondent/landlord contended that the landlord had also filed an application under Order XVA read with Order XXXIX. Rule 11 of the Code of Civil Procedure with a prayer that the suit be dismissed as the tenant has not complied the order dated 28.11.1996 by which he was directed to deposit the rent at the rate of Rs. 207/- per month along with the arrears of rent and was also directed to deposit the current future rent on the first day of each month and the suit has been dismissed for non-compliance of the order directing the appellant/tenant to deposit the rent amount as per the provisions of Order XXXIX, Rule 11 of the Code of Civil Procedure. Order XVA of Civil Procedure Code reads as under:

STRIKING OFF DEFENCE IN A SUIT BY A LESSOR

(1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears or rent or licence fee and future mesne profits from him, the defendant shall deposit 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 default in making the deposits, as aforesaid, the Court may subject to the provisions of Sub-rule (2) strike off the defence.]

(2) Before passing an order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking off the defence.

(3) The amount deposited under this rule shall be paid to the plaintiff lessor or licensor or his Advocate and the receipt of such amount shall not have the effect or prejudicing the claim of the plaintiff and it shall not also be treated as a waives of notice of termination.

Order XXXIX, Rule 11 reads as under :

11. Procedure on parties defying orders of Court, and committing breach of undertaking to the Court- (1) Where the Court orders any party to a suit or proceeding to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the Court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party commits any defaults in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit for proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences, if the defaults or contravention or breach is committed by the defendant or the opponent.

(2) The Court may, on sufficient cause being shown and on such terms and conditions as it may deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention or breach to the satisfaction of the Court:

Provided that before passing any order under this sub-rule notice shall be given to the parties likely to be affected by the order to be passed.

The learned Counsel for the landlord contended that as an appeal is provided by Bombay Amendment introduced on 1.10.1983 in Order XLIII, Rule 1(r) of the Code of Civil Procedure, this revision is not maintainable. The learned Counsel for the tenant does not dispute this position of law. The learned Counsel for the landlord contended that the revision is liable to be dismissed even on merits because it is obvious that the tenant was not ready and willing to pay the rent and did not obey the order of the Court directing him to pay the rent regularly on first day of each month.

10. The learned Counsel for the tenant vehemently argued that he was ready and willing to deposit the entire arrears of rent in the Court but the Trial Court did not pass orders on various applications and, therefore, the rent could not be deposited. He further contended that the learned Trial Judge has committed an error in dismissing the suit on the ground of non-compliance of the order dated 28.11.1996 passed below Ex, 36 and the revision, therefore, deserves to be allowed. All the contentions are totally misconceived because the tenant was neither ready to deposit the rent nor willing to tender the rent amount in the Court.

11. It would reveal that the applicant/tenant was directed to deposit the rent as per the order passed below Ex. 36 on 28.11.1996 and the tenant did not deposit the rent in the Court. He had filed an application on 14.1.1994 seeking permission of the Court to deposit the rent for the period December, 1993 and January, 1994. Thereafter, he again filed an application on 11.3.1994 seeking permission to deposit the rent up to March, 1994. Again on 24.10.1994 he filed an application seeking permission to deposit the rent up to October, 1994 and made an application on 23.12.1994 to deposit the rent up to December, 1994. He again filed an application on 10.5.1995 seeking permission to deposit the rent up to February, 1995. He again filed an application on 21.4.1995 seeking permission to deposit the rent up to June, 1995. Lastly, he filed an application on 30.6.1995 for permission to deposit the rent up to June, 1996. As no orders were passed on this application, the rent could not be deposited. In fact, it was absolutely not necessary for the tenant to seek the permission of the Court for tendering the amount of rent together with arrears in the Court and filing applications seeking permission to deposit the rent would show his conduct that he was not ready and willing to deposit the rent in the Court. It is not even the case of the tenant that he wanted to make amends for the default or contravention or breach of the order passed by the Court to its satisfaction. It appears that the tenant did not file any application before the Trial Court under Sub-section (2) of Rule 11 of Order XXXIX of the Code of Civil Procedure for restoration of the suit and this conduct is very much adverse against him. Even at the time of admission of this civil revision application the tenant was directed to deposit all arrears in the Trial Court he did not comply with this order. The Trial Court's report would show that the tenant did not deposit the rent for the period 2.8.1996 to 31.7.1997. In such a situation it is difficult to interefere in the impugned order.

12. In the result, I am of the considered view that the tenant has not complied with the order of the Court directing him to deposit the entire arrears of rent and also to pay the current and future rent. Therefore, the Trial Court was perfectly justified in dismissing the suit. I see no reason to interfere in the same and the order passed by the Trial Judge is just, legal and correct. In the circumstances, the civil revision application is dismissed. No order as to costs. Rule is discharged.