Telangana High Court

M/S. Buildmate Projects Pvt. Ltd. vs Mr. K. Suryanarayana on 15 July, 2024

  THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                     AND
 THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI


         CIVIL REVISION PETITION No.1602 of 2024


ORDER:

(per the Hon'ble the Chief Justice Alok Aradhe)

Mr. A. Ravinder Reddy, learned Senior Counsel

represents Mr. Chavali Ramanand, learned counsel for the

petitioner.

Mr. P. Sri Raghu Ram, learned Senior Counsel

represents Mr. P. Sri Ram, learned counsel for the

respondents.

2. In this Civil Revision Petition under Article 227 of the

Constitution of India, the petitioner has assailed the validity of

the order dated 27.04.2024 passed in I.A.No.29 of 2023 in

COS.No.36 of 2022 by the Court of Special Judge For Trial

and Disposal Of Commercial Disputes, Ranga Reddy District,

at L.B. Nagar (hereinafter referred to as 'the Commercial

Court'), by which, the petitioner has been directed to pay the

rents from 01.04.2021 to 31.10.2021 @ Rs.15,62,795/- per 2 CJ & JAK, J

month and continue to pay the future rents on every 5th of

English Calendar month till disposal of the suit, failing which,

the defence of the petitioner shall be struck off. In order to

appreciate the grievance of the petitioner, relevant facts need

mention which are stated infra.

3. The respondents are joint owners of land measuring

Acs.6.28 guntas comprising shed area of 13,200 sq.feet and

RCC building (measuring approximately 1800 sq.feet) in

Survey Nos.60, 61 and 62 of Gundlapochampally Village,

Medchal-Malkajgiri District (hereinafter referred to as 'the

subject property'). The subject property was let out to the

petitioner on lease and a lease deed dated 12.01.2015 was

executed for a period of five (5) years i.e., from 01.01.2015 to

31.12.2019.

4. After expiry of the aforesaid period of lease, the

petitioner continued in possession of the subject property as

holding over. An unregistered lease deed dated 02.05.2018

was executed between the parties for the period from

01.12.2017 to 31.12.2025. According to the respondents, 3 CJ & JAK, J

under the aforesaid unregistered lease deed, the petitioner

agreed to pay rent @ Rs.15,62,795/- per month. It is the case

of the respondents that after execution of the unregistered lease

deed, the petitioner made payment @ Rs.15,62,795/- per

month. However, the petitioner defaulted in making payments

of the rent from August, 2020; September, 2020 and March,

2021 onwards.

5. The respondents thereupon filed a suit seeking the relief

of eviction as well as arrears of rent for the period from

01.04.2021 to 31.10.2021 @ Rs.15,62,795/- per month. Along

with the plaint, an application under Order XVA of the Code

of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), as

amended in the State of Telangana vide State amendment, was

filed. At the instance of the petitioner, the aforesaid civil suit

filed by the respondents was transferred for adjudication to the

Commercial Court.

6. The Commercial Court by an order dated 27.04.2024

inter alia held that the rent of the subject property was

Rs.15,62,795/- per month and the petitioner is in arrears of 4 CJ & JAK, J

rent for the period from 01.04.2021 to 31.10.2021.

Accordingly, the petitioner was directed to pay a sum of

Rs.1,20,88,209/- and the petitioner was further directed to pay

the future rent by every 5th of English calendar month till

disposal of the suit failing which it was directed that the

defence of the respondents shall be struck off. Hence, this

Civil Revision Petition.

7. Learned Senior Counsel for the petitioner submitted that

the Commercial Court ought to have appreciated that the

provisions of Order XVA of CPC as are applicable in the State

of Telangana, are not applicable to the proceeding before the

Commercial Court. Our attention has been invited to the

prayer clause made in the plaint and it has been contended that

while passing the impugned order dated 27.04.2024, the

Commercial Court has directed the petitioner to pay arrears of

rent and thus, has partly decreed the suit which is

impermissible in law. It is also submitted that the arrears of

rent cannot be sought on the basis of an unregistered lease

deed. In support of aforesaid submission, reliance has been 5 CJ & JAK, J

placed on the decision of the Supreme Court in Sunil Kumar

Roy v. M/s. Bhowra Kankanee Collieries Ltd. and others 1.

8. On the other hand, learned Senior Counsel for the

respondents has contended that Section 16 of the Commercial

Courts Act, 2015 (hereinafter referred to as 'the 2015 Act'),

deals with the amendment to the provisions of CPC in relation

to commercial disputes. It is submitted that in the light of the

mandate contained in Section 16(3) of the 2015 Act, where

any rule of the jurisdictional High Court or amendment to CPC

is in conflict with the provisions of CPC, as amended by the

2015 Act, the provisions of CPC as amended by the 2015 Act

shall prevail. Therefore, it is submitted that Order XVA of

CPC applies to the proceeding before the Commercial Court. It

is contended that Schedule to Section 16 of the 2015 Act does

not commend the State amendment made to Order XVA of

CPC and therefore, the State amendment made to Order XVA

of CPC as well as the Schedule which is inserted in the 2015

Act pertaining to the case management can coexist.

AIR 1971 SC 751 6 CJ & JAK, J

9. It is argued that the Commercial Court on the basis of

material on record has recorded a finding of fact that the rent

of the schedule property was Rs.15,62,795/- per month. It is

contended that the aforesaid finding of fact cannot be said to

be either perverse or based on no evidence. It is further

submitted that the petitioner had made payment of the rent

@Rs.15,62,795/- per month after execution of the unregistered

lease deed as well. It is further submitted that the order passed

by the Commercial Court is well-reasoned which does not call

for any interference by this Court in exercise of supervisory

jurisdiction under Article 227 of the Constitution of India.

10. We have considered the rival submissions made on both

sides and have perused the record.

11. Admittedly, the respondents had filed a suit, namely,

O.S.No.9 of 2022, seeking the relief of eviction as well as the

recovery of arrears of rent, before the Commercial Court.

Along with the aforesaid civil suit, an Interlocutory

Application, namely, I.A.No.75 of 2022 was filed under Order

XVA of CPC as mandated by the State Legislature. On 7 CJ & JAK, J

transfer, the aforesaid I.A. was renumbered as I.A.No.29 of

2023 and the civil suit filed by the respondents was

renumbered as C.O.S.No.36 of 2022. Order XVA of CPC as

applicable in the State of Telangana reads as under:

"(1) In a suit for recovery of possession, on

termination of lease, or licence, with or without prayer for recovery of arrears of rent, or licence fee, known with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated upto that date into the Court and shall continue to deposit such amount, which becomes payable thereafter within one week from the date on which it becomes due, till the judgment is rendered in the suit.

Where the defendant pleads in the written statement that no arrears of rent or licence fee exists, it shall be competent for the Court to pass an order in this regard, after affording opportunity to both the parties and in case any amount is found due, the defendant shall be under obligation to deposit the amount within the time stipulated by the Court and continue to deposit the amount which becomes payable thereafter, as provided under Rule 1:

Provided that the time stipulated for payment of amount as aforesaid, may be extended by the Court for reasons to be recorded for a period not exceeding 15 days. If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence. On such deposit it shall be competent for the plaintiff to withdraw the same.

Explanation :- The expression "the amount representing the undisputed areas" shall mean the sum of rent, or licence fee, calculated for the period for which is remained unpaid, after deducting from it, any amount.

8 CJ & JAK, J

(a) paid as tax, to a local authority, in respect of the property;

                     (b) paid    to   the         plaintiff     under     written
                         acknowledgment; and
                     (c) deposited      into        the       Court,    in     any
                         proceedings,        in     relation     to     the   said
                         property."

12. Section 15 of the 2015 Act provides for transfer of

pending cases. Whereas Section 16 of the 2015 Act deals with

amendments to the provisions of CPC in its application to

commercial disputes. Section 16 of the 2015 Act is extracted

below for the facility of reference.

"16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.- (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail."

9 CJ & JAK, J

13. With respect to Case Management Hearing, Order XVA

of CPC deals with its application to commercial disputes of

Specified Value. Rules 1 and 2 of Order XVA of CPC read as

under:

"1. First Case Management Hearing:- The Court shall hold the First Case Management Hearing, not later than four weeks from the date of filing of affidavit of admission or denial of documents by all parties to the suit.

2. Orders to be passed in a Case Management Hearing:-

In a Case Management Hearing, after hearing the parties, and once it finds that there are issues of fact and law which require to be tried, the Court may pass an order-

(a) framing the issues between the parties in accordance with Order XIV of the Code of Civil Procedure, 1908 (5 of 1908) after examining pleadings, documents and documents produced before it, and on examination conducted by the Court under Rule 2 of Order X, if required;

(b) listing witnesses to be examined by the parties;

(c) fixing the date by which affidavit of evidence to be filed by parties;

(d) fixing the date on which evidence of the witnesses of the parties to be recorded;

(e) fixing the date by which written arguments are to be filed before the Court by the parties;

(f) fixing the date on which oral arguments are to be heard by the Court; and

(g) setting time limits for parties and their advocates to address oral arguments."

10 CJ & JAK, J

14. Thus, the provisions of CPC shall in their application in

a suit in respect of a commercial dispute of a Specified Value,

stand amended in the manner specified in the Schedule.

Section 16(3) of the 2015 Act mandates that where any

provision of any rule of the jurisdictional High Court or any

amendment to CPC by the State Government is in conflict

with the provisions of CPC, as amended by the 2015 Act, the

provisions of CPC as amended by the 2015 Act shall prevail.

From a perusal of the Schedule to the 2015 Act, it is evident

that the provisions of Order XVA of CPC have not been

amended in any manner. Therefore, the provisions of Order

XVA of CPC as amended by the State Legislature apply to a

proceeding before the Commercial Court. The amendment

brought about in the 2015 Act pertains to case management.

Thus, the provisions of Order XVA of CPC and Order XVA of

CPC as made applicable to the 2015 Act operate in different

fields and can coexist. Therefore, it can safely be inferred that

the provisions of Order XVA of CPC, as amended by the State

Legislature, are applicable to the proceeding before the 11 CJ & JAK, J

Commercial Court. Therefore, the contention that the

impugned order dated 27.04.2024 passed by the Commercial

Court is without jurisdiction cannot be sustained.

15. Admittedly, a registered lease deed was executed

between the parties on 12.01.2015 and on expiry of the lease

period mentioned therein, an unregistered lease deed dated

02.05.2018 was executed between the parties. The

Commercial Court on the basis of material available on record

has recorded following finding of fact about the arrears of rent

from April, 2021, to October, 2021, which is extracted below

for the facility of reference.

"23.............Therefore, this Court is of the considered opinion that the petitioner/plaintiff is entitled for a direction to direct the respondent/defendant to pay the rents from 01st April, 2021 to 31st October, 2021 @ Rs.15,62,795/- per month amounting to Rs.1,20,88,209/- to the petitioners and also direct the respondent to continue to pay the future rents on every 5th of English calendar month till the disposal of the suit, failing which the defence of the respondent will be struck off. Accordingly, this point is answered."

16. The scope of jurisdiction under Article 227 of the

Constitution of India is well delineated and the Supreme Court 12 CJ & JAK, J

in Garment Craft v. Prakash Chand Goel 2 has held that the

High Court cannot act as a Court of appeal and reappreciate

and reweigh the evidence and should not substitute its opinion.

Paragraph 15 of the aforesaid decision is extracted below for

the facility of reference:

"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is

(2022) 4 SCC 181

13 CJ & JAK, J

axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice."

17. In view of aforesaid, the impugned order dated

27.04.2024 passed by the Commercial Court neither suffers

from any jurisdictional infirmity nor any infirmity apparent on

the face of the record warranting interference by this Court in

exercise of supervisory jurisdiction under Article 227 of the

Constitution of India.

18. At this stage, learned Senior Counsel for the petitioner

submits that the time for depositing the arrears of rent be

extended for a period of three (3) months.

19. In the facts and circumstances of the case, we grant