Bombay High Court
Syed Shah Azamuddin Nehri Syed ... vs Shaikh Nazir Shaikh Bashir And ... on 31 July, 2017
Bench: S.P. Deshmukh
{1} wp9450-17
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9450 OF 2017
Syed Shah Azamuddin Nehri s/o PETITIONER
Syed Mohd. Ibrahim Nehri
Age - 67 years, Occ - Retired
R/o Hyderabad, Through G.P.A.,
Syed Bahuuddin Nehri s/o Syed Mazaruddin Nehri
Age - 72 years, Occ - Pensioner
R/o Ajabnagar, Chota Takiya
Aurangabad, Taluka and District - Aurangabad
VERSUS
1. Shaikh Nazir s/o Shaikh Bashir RESPONDENTS
Age - 65 years, Occ - Nil
R/o Municipal No. 1-18-6,
CTS No. 3114, Juna Bazar,
Opposite Head Post Office,
Aurangabad, Taluka and District - Aurangabad
2. Maharashtra STate Wakf Board,
Panchakki, Aurangabad
Taluka and District - Aurangabad
Thought its Chief Executive Officer
.......
Mr. Punit S. Mehta, Advocate for the petitioner
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 31st JULY, 2017
ORAL JUDGMENT :
1. Heard learned advocates for petitioner and respondent No.
1.
{2} wp9450-17
2. Order on Exhibit-31 in Rent Suit No. 7 of 2011 is being
taken exception to by petitioner, who is landlord - plaintiff in
aforesaid rent suit seeking eviction of defendant-tenant on
various grounds.
3. During pendency of proceedings, it appears, application
Exhibit-29 had been moved by landlord keeping in view Order
15A of the Civil Procedure Code, seeking direction to tenant to
deposit suit claim and a further amount till disposal of suit. The
application had been allowed directing defendant-tenant to
deposit arrears of rent. It appears, no specific date for making
deposit had been made.
4. It further appears that tenant had taken the matter in writ
petition against order of making deposit and for a while, under
interim orders of high court, operation of the order passed under
Exhibit-29 had been stayed. After decision in said writ petition, it
appears, an application had been moved by tenant letting him
deposit amount as directed under order on Exhibit-29. Said
application is yet pending.
5. While this is the position, an application appears to have
been moved at Exhibit-31, purportedly with reference to Order
{3} wp9450-17
15A sub rule (2) of the Civil Procedure Code for striking down
defence of tenant contending that the amount, as directed under
order on Exhibit-29 has not been deposited exposing the tenant
to action pursuant to aforesaid sub rule (2) of Order 15A.
6. Trial court has rejected the request observing that striking
off pleading has serious adverse consequence on the rights of
parties and its exercise as such, has to be had with great care
and caution. In the present case, it has been observed, order
under Exhibit-29, had been the subject matter of writ petition
before high court and interim relief thereunder had been
operating and further an application has been moved as referred
to above to let tenant pay amount as ordered. In the
circumstances, court found it difficult to accede to the request
being made under application Exhibit-31.
7. Learned advocate for the petitioner strenuously urges to
consider that since deposit pursuant to order on Exhibit-29 has
not been made making liable the tenant for inaction and in the
process incuring striking down the defence. He submits that for
non deposit of amount, necessary consequence is striking off
defence, which the court has failed to appreciate having regard
to scheme of rules under Order 15A of the Code of Civil
{4} wp9450-17
Procedure.
8. Learned advocate for respondent No. 1, at the outset,
submits that the tenant is ready to pay the amount according to
order of the court on Exhibit-29 and an application therefor has
already been moved, however, before any order could be passed
on the same, application Exhibit-31 has been moved and
proceeded with. He submits that Order 15A, Rule 2 of the Civil
Procedure Code employs word "may" and a discretion has been
conferred on the court to strike off or not the defence. Having
regard to circumstances, after hearing the parties concerned said
exercise has been carried out by the court and in its discretion
has found it difficult to accept contentions of petitioner and has
passed order rejecting application Exhibit-31. On instructions
from his client, he submits that respondent No. 1 would deposit
the amount as ordered under order on Exhibit-29 within a period
of four weeks from the date of receipt of writ of this order.
9. Having regard to that while order for deposit had been
passed, same had been subject matter of writ petition and
interim order had been passed in the same by high court, it
could not be said that there has been delay in making deposit as
per order. The intervening circumstances are indication of that
{5} wp9450-17
compliance of the order could not be met with under the
prevailing circumstances and an application has already been
moved seeking permission to pay. Tenant appears to be ready
and willing to deposit the amount and even a statement has
been made before this court that tenant would pay up the
amount pursuant to order on Exhibit-29 within four weeks from
the date of receipt of writ of this order in the trial court. As such,
this is not a case wherein interlude would be caused under writ
jurisdiction.
10. Writ petition, as such, is not entertained and stands
dismissed. In view of aforesaid, proceedings of Rent Suit No. 7 of
2011 be proceeded with expeditiously.
[SUNIL P. DESHMUKH, J.]
drp/wp9450-17
