It may also be mentioned that another Single Judge in the case of Sangeeta Prints vs. Hemal Prints, MANU/MH/0398/1985 : 1985 Mh. L.J. 413 has noted the introduction of Order XV-A in the Code of Civil Procedure and its applicability to suits filed by landlords against the tenants. In the said case however the question was whether the said rule would apply to a suit between licensee and licensor by virtue of section 41 of the Presidency Small Cause Courts Act. The Learned Judge after considering the provisions of the Small Cause Courts Act and other provisions came to the conclusion that there was no reason as to why the provision of Order XV-A could not be made applicable to a suit between the licensor and licensee since provisions of Code of Civil Procedure apply to suits under section 41 of the Presidency Small Cause Courts Act. In that case the Court took act of the provision under section 151 and Order XXXIX, rule 10. Another Judgment referred is the Judgment in the case of Jaihind Vidyalaya, Nagpur vs. Ghanshyam Girdharilal Khinchi, MANU/MH/0299/1989 : AIR 1989 Bom. 99, where the Court observed as under :-
The plain reading of Order XV-A shows that the Court has powers to direct the tenant to deposit arrears of rent irrespective of the fact whether the Suit is mainly for eviction or for arrears of rent. In either of these categories, the Court can use its discretion.
It may be pointed out that in the said case what was sought to be argued was that the Court could direct the deposit of arrears only when the suit is for eviction with the other reliefs of arrears of rent and or mesne profits and that such relief could never be given by the Court if the main relief of the suit is only for eviction. On the plain reading of Order XV-A the Court negatived the contention. Thus considering the provisions of Rent Act and the Rules framed thereunder as also the provisions of the Presidency Small Cause Courts Act, 1882, there is no doubt that the Small Cause Court or any other Court constituted under the Rent Act to hear the evictions matter is empowered under provision of Order XV-A to call on the tenant to deposit the arrears of rent and recovering rent during the pendency of the proceedings. No doubt, it is the Court which will direct the tenant to deposit such amount as the Court may prima facie come to the conclusion that requires to be deposited. The power is therefore in the Court in its discretion to fix the quantum which has to be deposited.
IN THE HIGH COURT OF BOMBAY
Civil Rev. Appln. No. 866 of 1991
Decided On: 12.07.1996
Shantaram Janu Raut Vs. Smt. Claradas Lourds
Hon'ble Judges/Coram:
F.I. Rebello, J.
Citation: 1998 (1) Mh.L.J. 639
1. The short but important question that arises in this Revision Application is whether Order XV-A of the Code of Civil Procedure as introduced by an amendment of this Court with effect from 1st October, 1983 empowers the Court of Small Causes to require a statutory tenant to deposit rent in proceedings for eviction initiated by a landlord during the pendency of such proceedings. As the question is of far reaching consequence and as none appeared for the Respondent, the Court requested Shri Dharmadhikari to act as amicus curiae and assist the Court in the matter.
2. The present Petitioner is the original Defendant and the Respondent herein, the original Plaintiff. The Respondent who is the landlord filed a Suit in the Court of Small Causes at Bombay against the Petitioner who is the tenant, for eviction of the Petitioner from the suit premises leased by the Respondent to the Petitioner which tenancy is covered under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (which hereinafter shall be referred to as "The Rent Act"). It was the case of the Respondent that the monthly rent reserved, was Rs. 75/- and that the Petitioner was in arrears of rent from 1st January, 1980 till 31st May, 1984. In the prayer clause there is no relief for recovery of arrears of rent. The main prayer was only for eviction of the Petitioner.
The Petitioner herein filed his Written Statement and contested the claim of the Respondent. The Petitioner denied that the monthly rent reserved was Rs. 75/-. It was the contention of the Petitioner that the contractual rent was Rs. 20/- per month and that the Petitioner had paid the rent upto December, 1983. The rest of the averments are not material for the purpose of disposal of this application.
3. At the stage of scrutiny, the trial Court directed the Petitioner to deposit the arrears of rent from 1st January, 1980 at the rate of Rs. 75/- per month and to continue depositing the same at the same rate by 15th of each and every month. The Petitioner was granted time to deposit arrears of rent upto 30th September, 1991. It was further directed that the money as and when deposited, was to be paid over to the Respondent on account. It may be mentioned that the Court heard the parties before passing the Order. On behalf of the Petitioner it was contended that the Court could not pass any such order as the main prayer in the Suit is for possession and there is no prayer for recovery of rent. On behalf of the Petitioner reliance was placed on the Judgment of this Court in the case of Jamnadas Motilal Vanwari vs. Ishwaribai Tejandas Alwani, MANU/MH/0332/1981 : 1981 Mh.L.J. (FB) 701 : AIR 1981 Bom. 314. On behalf of the Respondent it was contended that the Court had jurisdiction to pass such an Order and for this purpose the Respondent relied on the Judgments of this Court in the case of Chandrakant Shankarrao Deshmukh vs. Haribhau Tukaramji Kathani, MANU/MH/0519/1982 : 1983 Mh.L.J. 88 and in the case of Sangeeta Prints vs. Hemal Prints, MANU/MH/0398/1985 : 1985 Mh.L.J. 413. After considering the said Judgments, the Court was pleased to uphold the proposition canvassed on behalf of the Respondent, by relying on Judgments cited in support thereof. The Court further held that the Respondent has produced counterfoils in respect of the rent reserved which showed that the rent was paid at the rate of Rs. 75/- per month and consequently directed the Petitioner to deposit arrears calculated at the said rate and to continue to deposit at the same rate every month until final disposal.
4. The Petitioner aggrieved by the said Order has challenged the said Order by this Civil Revision Application. The matter was admitted on 9th January, 1992 and the Learned Single Judge hearing the matter at the stage of admission was pleased to grant stay on the ground that the said Order prima facie conflict with the Full Bench Judgment in the case of Jamnadas Motilal Vanwari vs. Ishwaribai Tejandas Alwani. At the hearing Counsel for the Petitioner argued that the Order of the Court was without jurisdiction as the Full Bench of this Court in the case of Jamnadas Motilal Vanwari vs. Ishwaribai Tejandas Alwani had clearly held that the power of the Court to make direction for deposit of rent is conditional to the suit being for recovery of rent and that such power cannot be exercised in any other suit between the landlord and the tenant and that it is not possible to trace any such power in a suit which is simpliciter for possession of the premises. A perusal of the Plaint would show that though the Respondent has claimed arrears of rent, however, in the prayer clause no such prayer has been sought and what has been prayed for is merely a possession. Therefore, the argument on behalf of the Petitioner has considerable force and the Order of the trial Court would ex facie seem to be contrary to the Full Bench Judgment. The matter as aforesaid could have been disposed of on that short point alone.
5. A perusal of The Rent Act shows that apart from the provisions of section 11(4) there is no other provision in the Act whereby the Court can call upon the tenant to deposit the agreed rent or such rent as the Court may determine during the pendency of the proceedings. It may be however noted that subsequent to the said Judgment our High Court has by an amendment, introduced Order XV-A in the Code of Civil Procedure, which confers a power on the Civil Court to call on a tenant to deposit the arrears of rent in any suit between landlord and tenant during the pendency of such proceedings. The question, therefore, is whether after the introduction of Order XV-A in the Code of Civil Procedure in a proceedings for eviction against the tenant in the Court of Small Causes or any other Competent Court under the Rent Act such procedure is applicable.
6. Advocate for the Petitioner at the hearing had pointed out that the said issue is of far reaching consequence and apart from merits of his case the issue is arising in a large number of matters. Several other matters of the same nature have also come to my attention. In order to resolve the controversy, I appointed Mr. Dharmadhikari to act as amicus curiae, more so as the Respondent though served was not represented. Shri Dharmadhikari has argued that the Judgment of the Full Bench has to be considered as a pronouncement of law as it then stood. It is however his contention that after the introduction of Order XV-A position has altered and now in any Suit between a landlord and a tenant including a Suit under the Rent Act, the Court has power to direct a tenant during the pendency of proceedings to deposit such rent as the Court may determine. In support of his contention Shri Dharmadhikari has relied on several reported authorities.
7. It may be noted that Order XV-A is an amendment by our High Court and has come into force on 1st October, 1983. The said amendment reads as under :-
1.(1) In any Suit by a lessor for eviction of a lessee or for the recovery of rent and future mesne profits from him, the Defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The Defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed.
In the event of any default in making the deposit, 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 his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the Plaintiff and it would not also be treated as a waiver of notice of termination.
Shri Dharmadhikari has also drawn my attention to the fact that there had been a further amendment to the said Order which has been notified in the Government Gazette dated 11th January, 1990 published by the Government of Maharashtra. By the said Notification, amendments have been notified to Order XV-A. By virtue of the said amendments sub-rule (1) had been substituted by a new sub-rule. Similarly sub-rule (3) has also been substituted and an explanation provided thereto. The said amendments read as under :-
(1) In any suit by a lessor or a licensor against the Lessee or a licensee, as the case may be, for his eviction with or without the arrears of 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 upto 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.
(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 of prejudicing the claim of the Plaintiff and it shall not also be treated as a waiver of notice of termination.
Explanation - The suit for eviction shall include suit for mandatory injunction seeking removal of licensee from the premises for the purpose of this rule.
Thus as and of 1st October, 1983 there is a provision in the Code of Civil Procedure providing for deposit of rent by a tenant in any Suit filed by a landlord against a tenant during the pendency of a proceeding. The question is whether the said provisions apply in a case for eviction filed under the Rent Act, before the Courts of Small Causes and other Courts which have been empowered to hear the suit in the matter of eviction of a tenant or recovery of arrears of rent under section 28 of the Rent Act.
8. It may be noted that in an admitted case of landlord and tenant, a duty is cast on the tenant to pay the rent reserved every month on such date as may be provided for in the contract or if there is no such contract, on practice or on a date fixed by statute. In respect of the premises which have been tenanted the landlord has to keep on paying taxes and other outgoings on the property, maintain it in the good condition and repair it so that the lifetime of the building is not shortened. "In many cases the landlord depend for their livelihood upon the income from the property. It would be hardship in the circumstances to the landlord as the misfortune of having to file a suit against his tenant who cannot be ordered to pay any amount on account of the use and occupation of the premises but the landlord is required to meet his responsibilities and liabilities. The process of the Court over which neither the landlord nor the tenant defendant has any control cannot be allowed to be abused and work to the detriment of a person. If it is capable of resulting in a harm, then the Courts are not powerless to make orders so as to mitigate that point. Besides, we are unable to see any justification for a tenant to deny his moral and legal responsibility to pay as long as he is in occupation of the premises on the supposed strict words of law or procedure not providing for a situation of this kind......" This was so observed by a Division Bench of our Court in the case of Chandrakant vs. Haribhau (supra).
9. Let us now examine the provisions of the Rent Act, the provisions of the Presidency Small Cause Courts Act and the Code of Civil Procedure to see if the provisions of Order XV-A will apply to proceedings of eviction of a tenant wherein arrears of rent has not been sought. In the Rent Act section 11(4) provides for deposit of rent where the suit is a suit for arrears of rent. Section 11(4) has already been interpreted by the Full Bench decision cited above. Apart from the said provision, there is no other provision in the Rent Act for depositing arrears of rent. Section 28 of the Rent Act confers jurisdiction on the Courts competent to decide suits under the Rent Act. In Greater Bombay, the Court is the Court of Small Causes at Bombay, in some other areas where a Court of Small Causes has been established under the Provincial Small Cause Courts Act, such Court, elsewhere the Court of Civil Judge, Junior Division, having jurisdiction in the area. Section 31 of the Rent Act thereafter provides that the Courts specified in sections 28 and 29 shall follow the prescribed procedure in trying and hearing the Suit, proceedings, Applications, Appeals and in executing orders made by them. By section 49 a power is conferred on the State Government to make Rules. Section 49(2)(e) specifically provides that the State Government is empowered to make Rules to provide the procedure to be followed in trying or hearing the suit, proceedings, (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. Section 49(3) requires that every such Rule framed shall be laid, as soon as, may be, after it is made, before each House of the State Legislature while it is in session. In exercise of the said power the State Government has been pleased to frame Rules which are known as "The Bombay Rent, Hotel and Lodging House Rates (Control) Rules, 1948, which hereafter shall be referred to as "the Rent Rules".
Rule 2(a) of the Rules defines "Code" to mean the Code of Civil Procedure, 1908;
Rule 8 reads as under :-
In suits and proceedings other than those referred to in rules 5 and 7, the Court of Small Causes, Bombay, shall, as far as may be and with the necessary modifications follow the procedure prescribed for a Court of first instance by the Code, including Order XXXVII as modified in its application to the State of Bombay :
Provided that costs in respect of employing a legal practitioner when allowed shall be, in respect of any legal practitioner entitled to appear, not more than Rs. 75 per diem of 5 hours of actual hearing or Rs. 125 if the case is disposed of on the first day.
Thereafter Rule 9 provides for the procedure to be followed in appeals, under section 29(1) of the Act, which as far as may be, will be the procedure prescribed for appeals from original decrees by the Code.
Rule 16 thereafter makes the provision more specific. Rule 16 reads as under:-
In deciding any question relating to procedure not specifically provided for by these Rules the Court shall, as far as possible, be guided by the provisions contained in the Code.
Section 41 of the Presidency Small Cause Courts Act, 1882 confers power on the Court of Small Causes to hear suits between a licensor and licensee or a landlord and tenant, conferring an exclusive jurisdiction on the said Court subject to the exclusion of matters arising from the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947; The Bombay Government Premises (Eviction) Act, 1955 and the Bombay Municipal Corporation Act. Section 43 is the section dealing with procedure which provides that in all suits, appeals and proceedings the Small Cause Court shall as far as possible and except as herein otherwise provided, follow the procedure prescribed by the Code of Civil Procedure, 1908.
10. Reading the provisions of the Rent Act along with the Rules framed thereunder as also the provisions of the Presidency Small Cause Courts Act, 1882, it will be apparent immediately that the procedure to be followed by the Courts either under the Rent Act or under the Presidency Small Cause Courts Act is as far as possible the procedure prescribed by the Code of Civil Procedure, 1908. If that be so, then the provisions of Order XV-A would be attracted. There is no reason to hold otherwise as provisions pertaining to Order XV-A is a provision pertaining to procedure and is not excluded by any specific Rule made either under the Rent Rules or the provisions of the Presidency Small Cause Courts Act. Rule 13 read with Rule 16 framed under the Rent Act as also the provision of section 43 of the Presidency Small Cause Courts Act leave no uncertainty in the matter in as much as it is the provision of the Code of Civil Procedure that would apply in a Suit for eviction filed by a landlord against the tenant whether for recovery of rent or otherwise.
11. Order XV-A came for consideration before a Single Judge of this Court in the case of Shyam Liladhar Paul vs. Ghanshyamdas Tharumal, MANU/MH/0676/1984 : 1985 Mh.L.J. 950. In the said case a challenge was thrown to the provisions of Order XV-A as being invalid on the ground that it was in excess of the rule making power of the High Court under section 122 of the Code of Civil Procedure. It was contended that provisions of Order XV-A were substantive in character and as such the High Court could not have framed Order XV-A Negativing the contention, the Single Judge held that Order XV-A was purely a procedural rule and as such was not ultra vires, section 122 of the Code of Civil Procedure. It may be noted that the Single Judge was pleased to further observe in para 6 of the said Judgment that the Court of Small Causes has jurisdiction under Order XV-A, rule (1) to call upon the tenant to deposit arrears of rent or rent as contemplated under Order XV-A, rule (1) of the Code of Civil Procedure. It may further be noted that in the aforementioned case the trial Court had initially passed an Order under Order XXXIX, rule 10. The Court has observed in para 6 that the provisions of Order XXXIX, rule 10 are excluded by the provisions of section 7 of the Code of Civil Procedure, but the Court before whom the suit was pending, namely the Court of Small Cause could pass such an order under Order XV-A, rule 1 to direct the tenant to deposit the rent.
12. It may also be mentioned that another Single Judge in the case of Sangeeta Prints vs. Hemal Prints, MANU/MH/0398/1985 : 1985 Mh. L.J. 413 has noted the introduction of Order XV-A in the Code of Civil Procedure and its applicability to suits filed by landlords against the tenants. In the said case however the question was whether the said rule would apply to a suit between licensee and licensor by virtue of section 41 of the Presidency Small Cause Courts Act. The Learned Judge after considering the provisions of the Small Cause Courts Act and other provisions came to the conclusion that there was no reason as to why the provision of Order XV-A could not be made applicable to a suit between the licensor and licensee since provisions of Code of Civil Procedure apply to suits under section 41 of the Presidency Small Cause Courts Act. In that case the Court took act of the provision under section 151 and Order XXXIX, rule 10. Another Judgment referred is the Judgment in the case of Jaihind Vidyalaya, Nagpur vs. Ghanshyam Girdharilal Khinchi, MANU/MH/0299/1989 : AIR 1989 Bom. 99, where the Court observed as under :-
The plain reading of Order XV-A shows that the Court has powers to direct the tenant to deposit arrears of rent irrespective of the fact whether the Suit is mainly for eviction or for arrears of rent. In either of these categories, the Court can use its discretion.
It may be pointed out that in the said case what was sought to be argued was that the Court could direct the deposit of arrears only when the suit is for eviction with the other reliefs of arrears of rent and or mesne profits and that such relief could never be given by the Court if the main relief of the suit is only for eviction. On the plain reading of Order XV-A the Court negatived the contention. Thus considering the provisions of Rent Act and the Rules framed thereunder as also the provisions of the Presidency Small Cause Courts Act, 1882, there is no doubt that the Small Cause Court or any other Court constituted under the Rent Act to hear the evictions matter is empowered under provision of Order XV-A to call on the tenant to deposit the arrears of rent and recovering rent during the pendency of the proceedings. No doubt, it is the Court which will direct the tenant to deposit such amount as the Court may prima facie come to the conclusion that requires to be deposited. The power is therefore in the Court in its discretion to fix the quantum which has to be deposited.
13. For the foregoing reasons, I am of the view that in all proceedings for eviction filed under the provisions of 'The Rent Act' the provisions of Order XV-A of the Code of Civil Procedure is applicable and the Court is empowered to follow the procedure under Order XV-A, to call on the tenant to deposit the rent in arrears and to continue to deposit the rent which may become, due and payable in the course of the proceeding. The Order of the trial Court though it had not considered the effect of Order XV-A has therefore to be sustained on this ground. It may also be mentioned that in view of Order XV-A of the Code of Civil Procedure, 1908 the ratio in the judgment of the Full Bench reported in MANU/MH/0332/1981 : 1981 Mh.L.J. (FB) 701 : AIR 1981 Bom. 314, will no longer apply as a provision akin to Order XV-A was not existing when the Full Bench was called upon to consider section 11(4) of the Rent Act.
14. It was also contended by the Learned Counsel for the Petitioner that even if the provision under Order XV-A were applicable, the trial Court erred in fixing the rent at Rs. 75/- per month. It is the contention of the Learned Counsel for the Petitioner that there was no material for the Learned Court to come to the said conclusion that the rent was Rs. 75/- per month when in fact the Petitioner had denied that the rent was Rs. 75/- and had pleaded that the rent was Rs. 20/-. I have gone through the portion of the said Judgment. In fixing the rent at Rs. 75/-, the Court has relied on the counterfoils of the rent receipts. At the interim stage this finding cannot be said to be based on no material and/or perverse. This finding of the Court, therefore, is also sustained.
15. It can be seen from the Order of the trial Court that the tenant was called upon to deposit the arrears of rent from 1st January, 1980 upto 30th August, 1991 by 30th September, 1991. There was a stay of the said Order by this Court on 9th January, 1992. The said stay stands vacated. However, as a long time has expired between passing of the Order and disposal of this matter, it would be in the interest of justice to permit the Petitioner to deposit the arrears accrued till 30th June, 19% in the following manner. Half the arrears by 31st October, 19% and the balance of the arrears by 31st December, 1996. In so far as rents from July, 19% onwards are concerned, the same shall be deposited by the 15th of each and every month for which the rent is due beginning with the rent of July 1996 which shall be payable on or before 15th August, 1996.
16. Before parting with the Judgment I must place on record the valuable and able assistance rendered by Shri Dharmadhikari as Amicus Curiae.
17. In the circumstances of the case, the Civil Revision Application is rejected with no order as to costs. Rule discharged accordingly.
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