Bombay High Court
Shri Ramesh S/O Rambhau Bidkar vs Shri Baljit S/O Mukundlal Juneja on 7 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.3684 OF 2013
PETITIONERS: 1. Shri Ramesh S/o Rambhau Bidkar,
Aged about 60 years, occu: Business,
(Ori. Plaintiffs)
R/o 47, Survey nagar, Jaitala Road,
Nagpur.
2. Shri Ranjit Prabhakar Lad, R/o
Pandharpur.
3. Shri Kishor Prabodh Sadavarte, R/o
138, Ramnbagar, Nagpur.
-VERSUS-
RESPONDENT:
(Org. Defendant)
ig Shri Balaji S/o Mukundlal Juneja,
Aged about 43 years, Occu: Business,
R/o Near Hanuman mandir,
Gokulpeth, Nagpur.
Shri P. S. Sadavarte, Advocate for the petitioner.
Shri M. V. Fulzele, Advocate for respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 07
th JUNE, 2016.
ORAL JUDGMENT :
1. In view of order dated 26-2-2016 passed by the Hon'ble
Supreme Court in Special Leave Petition Nos.35851-35852 of 2014, the
writ petition is taken up for hearing.
2. The petitioners are aggrieved by the order dated 6-3-2013
passed by the trial Court below Exhibit-53-A whereby the application
moved by the petitioner no.1 seeking permission to withdraw the
amounts deposited by the respondent has been rejected.
3. The petitioners are the plaintiffs who claim to be the
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owners of land admeasuring 45000 sq. fts. It is the case of the
petitioners that the said property has been let out to the respondent at
monthly rent of Rs.25,000/- from 1-10-2008. As the petitioners alleged
that the tenancy had been terminated and the possession was not
handed over, Civil Suit No.194/2010 came to be filed for recovery of
possession along with the recovery of unpaid rent.
The respondent filed his written statement in the aforesaid
suit and denied the entitlement of the petitioner. It was pleaded that the
agreement dated 17-11-2008 was not valid. However, the fact that the
respondent was put in possession by the petitioner was not disputed.
4. The petitioner no.1 moved an application under provisions
of Order XV-A of the Code of Civil Procedure, 1908 (for short, the Code)
on 11-6-2010 praying that the respondent be directed to pay unpaid rent
and future mesne profits. A further prayer was made for permission to
withdraw the amounts if so deposited. The trial Court by order dated
22-11-2010 directed the respondent to deposit a sum of Rs.25,000/- per
month from the date of filing of the suit. However, the amounts
deposited were not permitted to be withdrawn by the petitioner no.1.
5. The petitioner no.1 being aggrieved by the aforesaid order
challenged the same by filing Writ Petition No.284/2011. However, on
24-1-2011 the writ petition came to be dismissed observing that the
order of the trial Court did not call for any interference. The review
application filed by the petitioner no.1 was dismissed on 16-9-2011. In
the meanwhile, the respondent filed an application calling upon the
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petitioner to disclose the names of other partners who had claimed to
have purchased the property in question. The respondent also moved an
application for rejection of the plaint under provisions of Order VII Rule
11 of the Code on the ground that the suit was filed by a incompetent
person and was not maintainable. This application was rejected by the
trial Court on 18-8-2011.
6. On 7-3-2012, the petitioner no.1 filed another application
seeking permission to withdraw an amount of Rs.5,00,000/- deposited
by the respondent subject to furnishing solvent surety. This application
was opposed by the respondent and the trial Court by the order dated
6-3-2013 rejected the application on the ground that the earlier orders
passed below Exhibit-5 had attained the finality.
7. The writ petition was admitted on 16-9-2013 by making
Rule returnable after six years. The petitioner no.1 filed an application
for review of aforesaid order which application was rejected on
5-1-2014. Being aggrieved, the petitioner no.1 approached the Hon'ble
Supreme Court and by order dated 26-2-2016, the Special Leave
Petitions were disposed of with a direction to decide the present
proceedings within a period of six months.
8. Shri P. S. Sadavarte, the learned Counsel for the petitioners
submitted that the trial Court was not justified in refusing permission to
the petitioner no.1 to withdraw the amounts deposited by the
respondent. According to him, it could not be said that the subsequent
application was not maintainable on the ground of res judicata. He
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submitted that after the order dated 22-11-2010 was passed by the trial
Court under provisions of Order XV-A of the Code, the petitioner no.1
had moved an application for directing the respondent to furnish bank
guarantee for an amount of Rs.6,00,000/- which application was
allowed by the trial Court on 6-3-2013. According to him, the
respondent had sought dismissal of the suit under provisions of Order
VII Rule 11 of the Code and this application was also rejected by the trial
Court. Therefore, according to him, in view of these developments, the
petitioner no.1 was entitled to withdraw the amounts deposited by the
respondent subject to furnishing solvent surety. He submitted that these
aspects were not considered by the trial Court and merely by observing
that the earlier application was rejected, the prayer for withdrawing the
amount was not granted. According to him, the earlier order dated
22-11-2010 being an interlocutory order, the same would not operate as
res judicata in the subsequent stage of the same proceedings. He then
submitted that it was not open for the respondent to deny the title of the
petitioners as landlords. The petitioner no.1 being the landlord was
entitled to withdraw the amounts deposited by the tenant. In support of
his submissions, the learned Counsel placed reliance on the following
judgments:
[1] Konchada Ramamurty Subudhi v. Gopinath Naik and others
AIR 1968 Supreme Court 919.
[2] Pal Singh v. Sunder Singh AIR 1989 Supreme Court 758.
[3] Bansraj Vs. Stanley Parker Jones 2006(2) Mh.L.J. 465.
[4] Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006
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Supreme Court 3569.
[5] Keshar Bai v. Chhunulal 2014 (2) ALL MR 937.
[6] Joginder Singh and another v. Smt. Jogindero and others AIR
1996 SC 1654.
[7] Karam Kapahi v. Lal Chand Public Charitable Trust (2010) 4
Supreme Court Cases 753.
[8] Sri Gangai Vinayagar Temple and another vs. Meenakshi
Ammal and others 2015(6) Mh.L.J. 96.
[9] Ismailbhai vs. Additional Collector, 2006(4) Mh.L.J. 695.
[10] Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006) 3
Supreme Court Cases 91.
[11]
Mangal Bhikaji Nagpase vs. State of Maharashtra and another
1997(2) Mh.l.J 55.
[12] Subhash Chandra v. Mohammad Sharif AIR 1990 Supreme
Court 636.
[13] Haribhau Vs. Swami Narayan Mandir 2010(5) Mh.L.J. 878.
[14] Anantbhushan vs. Vikas 2005(4) Mh.L.J. 583.
[15] SKF India Limited vs. Banarasilal 2012(5) Mh.L.J. 259.
9. Shri N. V. Fulzele, the learned Counsel for the respondents
supported the impugned order. According to him, the earlier order
passed below Exhibit-5 had attained finality and, therefore, the
subsequent application seeking similar relief was rightly rejected by the
trial Court. He submitted that though the order passed below Exhibit-5
was challenged by the petitioner no.1, the said challenge was not
successful. Therefore, now it was not permissible to seek similar relief
which was already denied to the petitioner No.1.
10. I have heard the respective Counsel for the parties at length
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and perused the documents placed on record.
11. The following undisputed facts are found relevant :
In the application moved by the petitioner no.1 before the
trial Court under provisions of Order XV-A of the Code, the following
prayer was made:
"(iii) if the unpaid rent and future msene profit
as directed by the Court, is deposited in Court by
the Defendant, then the same may allowed to be
withdrawn by the Plaintiff and paid to him."
This application was decided on 22-11-2010 and the prayer
for permitting the petitioner no.1 to withdraw the amounts deposited
was not granted. While challenging this order in Writ Petition
No.284/2011, one of the reliefs sought was as under:-
"and issue an appropriate direction in allowing
the Petitioner to withdraw the same as per
provisions of Order XV-A C.P.C. if the amount is
deposited in Court."
The writ petition, however, was dismissed on 24-1-2011 and prayer for
reviewing the said order was also not accepted as a result of which the
order refusing permission to the petitioner no.1 to withdraw the
amounts deposited attained finality.
12. According to the petitioner no.1, in view of what had
transacted during pendency of the suit, there was a case for permitting
the petitioner no.1 to withdraw the amounts deposited. The factors
relied upon in that regard are that an application for dismissal of the suit
moved by the defendant came to be rejected. Similarly, the defendant
had been directed to give bank guarantee of an amount of Rs.6,00,000/-
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which was a factor to be considered in favour of the petitioners.
Similarly, the plaint was amended for adding two more plaintiffs who
are now petitioner nos.2 and 3. According to the petitioners, in view of
these developments, the subsequent application seeking permission to
withdraw an amount of Rs.5,00,000/- came to be moved. However, if
the application below Exhibit-53A is perused, there are no such
pleadings that on account of various changed circumstances, the
petitioner no.1 was entitled to withdraw the amount in question. In para
3 of the application, it was stated that the respondent was irregular in
depositing the amount of rent. In para 5 of the application, it was stated
that the petitioner no.1 was required to take steps for striking out the
defence due to irregular deposit. It is on these pleadings that the
aforesaid application came to be moved. In reply to said application, a
plea of bar of res judicata was raised.
13. If the stand of the petitioner no.1 that he was entitled to
withdraw the amount on account of changed circumstances is to be
considered, it has to be noted that such is not the case made out in the
application. The changed circumstances as sought to be contended by
the petitioners as being relevant have not been pleaded in the
application below Exhibit-53A. Though it is submitted by the learned
Counsel for the petitioners that such averments are made in the writ
petition, the same cannot be gone into for the first time especially when
they were not made in the application that was moved before the trial
Court.
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14. Once it is found that no changed circumstances have been
pleaded by the petitioner no.1 in the subsequent application moved by
him, it is clear that the relief sought by the petitioners is barred in view
of the principles of res - judicata. The payer to withdraw the amounts
deposited by furnishing security was made by the petitioner no.1 in his
initial application which came to be specifically refused. As observed by
the Hon'ble Supreme Court in Y.B. Patil Vs. Y. L. Patil (1976) 4 SCC 66,
the principles of res - judicata are attracted even at the subsequent stage
of the same proceedings. In this backdrop, therefore, the order of the
trial Court cannot be faulted. The decision relied upon in SKF India Ltd.
(supra) is already distinguishable on facts.
15. In so far as the submission that it was the legal duty of the
respondent to pay rent to the petitioners on account of the relationship
between the parties, said legal position cannot be disputed. It is on that
basis that the direction to deposit the amount in Court came to be
passed by the trial Court on 22-11-2010. The reason for refusing
permission to withdraw the amount till final decision of the suit has not
been shown to have undergone a change so as to allow the said
application. At least, there are no pleadings to that effect in the
application below Exhibit-53-A. The proposition of law as laid down in
the judgments at serial nos.1 to 13 relied upon by the learned Counsel
for the petitioners cannot be disputed. However, in the view that has
been taken there is no occasion to consider application of said law at this
stage.
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16. In view of aforesaid discussion, I do not find that the trial
Court committed any error of jurisdiction or acted with material
irregularity when it passed the impugned order. No case, therefore, has
been made out to interfere in writ jurisdiction. However, considering the
fact that the suit is of the year 2010, the proceedings therein are
expedited. The trial Court shall decide Regular Civil Suit No.194/2010
expeditiously by the end of December, 2016 on its own merits and in
accordance with law. The petition is, according, dismissed with no order
as to costs.
JUDGE
//MULEY//
