Bombay High Court
M/S. Training And Advance Studies ... vs Mr. Giri Dua And Ors on 6 October, 2017
Bench: M.S. Sonak
903-wp-10585-2017-JUD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10585 OF 2017
M/s.Training & Advance Studies
In Management and Communications Ltd. ..Petitioner
V/s.
Mr.Giri Dua & Ors. ..Respondents
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Ms.Krishma Shah for the Petitioner.
Mr.Pravartak Pathak for the Respondents.
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CORAM : M. S. SONAK, J.
DATE : 06th OCTOBER 2017
ORAL JUDGMENT :
1. Heard Ms.Krishma Shah for the petitioner and
Mr.Pravartak Pathak for the respondents.
2. Rule. With the consent of and at the request of the
learned counsel for the parties, Rule is made returnable forthwith.
3. The challenge in this petition is to the order dated
29.11.2016 made by the Adhoc District Judge-1, Pune refusing to
exercise revisional jurisdiction under Section 34(4) of the
Maharashtra Rent Control Act, 1999 on the ground that the order
dated 30.04.2016 made by the Trial Court in exercise of powers
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under Order 15-A of C.P.C. is purely procedural order and therefore,
not revisable.
4. No doubt, in paragraph 8 of the impugned order,
Revisional Authority, has also, briefly adverted to the merits and
held that even on merits there is no case made out for the exercise
of revisional iurisdiction.
5. The order dated 30.04.2016 made by the Trial Court in
exercise of powers under Order 15-A of the C.P.C. cannot, be
regarded as purely procedural order and therefore, not revisable
under Section 34(4) of the Maharashtra Rent Control Act, 1999.
Such view, is in fact, contrary to the decision of the learned Single
Judge of this Court Dr.D.Y. Chandrachood, J, (as His Lordship then
he was) in Colaba Central Co-operative Consumer Wholesale and
Retail Stores Ltd. V/s. Kusumben Kantilal Shah & Ors. 1
6. In paragraph No.7 of the said decision, this is what is
held :-
"7. Sub-rule (1) of Order 15-A as amended
applied to suit by a lessor against a lessee or a licensor
1 2003-4-All MR-34)
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against a licensee for eviction with or without the arrears
of rent or licence fee and future mesne profits. In such a
suit, the Court is empowered to direct the defendant to
deposit such amount as the Court may direct on account
of arrears upto the date of the Order and thereafter to
continue to deposit in each succeeding month the rent or
licence fee claimed in the suit as the Court may direct.
Sub-rule(1) provides that the defendant shall unless
otherwise directed continue to deposit such amount till
the decision of the suit. The Legislature was clearly
conscious of the necessity of requiring the tenant or, as
the case may be, a licensee to deposit such an amount as
the Court may direct towards arrears payble on account
of his occupation and to protect the interest of the
landlord by requiring that future deposits of the amount
of rent or the licence fee must also be made. In the
absence of such a provision, the landlord would have to
suffer the hardship of awaiting a final decision of the suit
for eviction before any amount would be received. This
was obviated by conferring upon the Court, the power to
pass an appropriate interim order. Even in the absence of
such a provision, the hardship which was liable to be
suffered by the landlord has been sought to be obviated by
the decision of this Court in Sangeeta Prints (Supra) by
taking recourse to the provisions of Order 39 Rule 10 and
Section 151 of the Code. Having regard to the salutary
object underlying the provision, the proviso to sub-rule
(1) envisages certain consequence emanating from a non-
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compliance of the order of deposit. The proviso stipulates
that in the event of a default in making deposit as
decided, the Court may, subject to the provisions of sub-
rule (2) provides that a notice has to be issued to the
defendant to show cause and the cause, if any, shown has
to considered in order to decide as to whether the
defendant should be relieved of a peremptory order
striking off the defence. Sub-rule (2) in turn indicates
that unless the Court is of the view that there are valid
circumstances as to why the defendant should be relieved
of an order striking off his defence, ordinarily the defence
would be liable to be struck off upon a failure of
compliance with an order of deposit. In these
circumstances, there can be no gainsaying the fact
that an order passed under sub-rule (1) is an order
of moment and is liable to seriously affect the rights
of the parties. A defendant who does not comply with
the order of deposit, cannot be relieved of the striking off
of his defence unless he shows sufficient cause. In these
circumstances, it cannot be said that an order under
sub-rule (1) of order 15-A is merely a procedural
order and is not subject to a revision under sub-
section (4) of Section 42 of the Act. In the present
case, a revision is maintainable. There is hence no
necessity for this Court to go into the challenge urged on
behalf of the Petitioner on the merits of the order."
(emphasis supplied)
7. Mr.Pathak, however points out that in paragraph No.8
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of the impugned order, the Revisional Authority has also adverted to
the merits of the matter. Though, this submission, to certain extent
is correct, it does appear that the Revisional Authority was
convinced that the order impugned before it was not revisable, and
therefore, has, adverted to the merits of the matter only briefly. In
such circumstances, it will not be safe, to hold that the half hearted
discussion in paragraph 8 of the impugned order, constitutes the
decision on merits. Ms.Shah, is right in her submission that the
petitioner was entitled to consideration of its Revision Petition, on
the basis that such Revision Application was indeed maintainable
and required consideration in terms of the parameters of Section
34(4) of the Maharashtra Rent Control Act, 1999.
8. For the aforesaid reasons, the impugned order dated
29.11.2016 made by the Revisional Authority is set aside. The Civil
Revision Application No.33 of 2016 is restored to the file of
Revisional Authority, who is directed to dispose of the same in
accordance with law and on its own merits, uninfluenced by any
observations in the impugned order dated 29.11.2016, which in any
case, is now set aside.
9. However, it is made clear that till date, the order dated
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30.04.2016 which is impugned in the Revision Application before
the Revisional Authority is not stayed. This means that the
petitioner has to comply with said order without prejudice to its
rights and contentions in the Revision Application which is now
restored before the Revisional Authority. On the ground of
pendency of the Revision Application, it is impermissible for the
petitioner to avoid compliances. If compliances is avoided, it shall be
open to the Trial Court to take such steps as are permissible under
the law. Further, the pendency of the Revision Application before
the Revisional Authority should not be construed as impediment in
the Trial Court to proceed with the main suit on merits.
10. With the aforesaid observations, the Rule is made
absolute. There shall be no order as to costs.
11. Parties to appear before the Revisional Authority on 13 th
October 2017 and file authenticated copy of this order. The
Revisional Authority to endeavor to dispose of the Revision
Application as expeditiously as possible and in any case within a
period of four months from the date of the parties filing
authenticated copy of this order.
(M. S. SONAK, J.)
N.S. Kamble page 6 of 6
