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 provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-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), strike off the defence. Undoubtedly, before striking off the defence, 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 be 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 effect 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.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 1079 of 2003
Decided On: 08.09.2003
Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. alias Sahakar Bhandar
Vs.
Kusumben Kantilal Shah and Ors.
Hon'ble Judges/Coram:
Dr. D.Y. Chandrachud, J.
Citation: 2003(4)ALLMR304; 2004(1)BomCR547
1. The petitioner is the original defendant in a suit which was instituted for eviction under section 41 of the Presidency Small Causes Court Act, 1882 ("the Act"). An agreement was entered into between the petitioner and the respondents as Trustees of a Public Trust registered under the Bombay Public Trusts Act, 1950. Under the terms of the agreement which was entered into on 6th January, 1989, a licence was conferred upon the petitioner to occupy an area on the ground floor of a building of the trust admeasuring 14,000 sq.ft. for a period of 10 years. The petitioner was under the terms of the licence agreement to pay commission at the rate of 1.1/2% on the sales of the stock-in-trade in the premises subject to a minimum of Rs. 50,000/- per month. The petitioner did not vacate the premises upon the expiry of the term stipulated in the agreement between the parties and thereupon a suit for eviction came to be filed under section 41 of the Act on 6th February, 2002. In the suit, apart from a decree for eviction, an interim order was sought requiring the petitioner to deposit in the Court, an amount of Rs. 77,37,282/- towards arrears of compensation and property taxes and to continue to deposit thereafter in the Court the amount as claimed. An interim notice was thereafter taken out by the respondents for an interim order of deposit. A valuation report dated 22nd October, 2002 was relied upon. By an order dated 20th December 2002, the learned trial Judge in the Court of Small Causes has directed the petitioner to deposit an amount of Rs. 3,40,000/- per month from 6th January, 1999 until the decision of the suit. The respondents have been permitted to withdraw half of the amount so deposited. During the pendency of the suit, possession of the premises has been handed over by the petitioner to the respondents on 30th March, 2003. The order of the learned trial Judge is sought to be questioned in these proceedings under Article 227 of the Constitution.
2. When the petition came up for admission, a preliminary objection was raised on behalf of the respondents to its maintainability on the ground that the petitioner has an efficacious alternative remedy under section 42(4) of the Act. Section 42(4) provides thus:
"42(4) Where no appeal lies under this sub-section from a decree or order in any suit or proceedings, the Bench of two Judges specified in sub-section (1) may, for the purpose of satisfying itself that the decree or order was according to law, call for the case in which such decree or order was made and pass such order with respect thereto as it thinks fit."
3. Counsel urged that the order which has been passed by the learned trial Judge was under the provisions of Order 15-A of the Code of Civil Procedure, 1908 as amended in 1990. A failure to comply with the order of deposit has serious consequences. The Court is empowered under the proviso to sub-rule (1) of Order 15-A to strike off the defence. Consequently, it is urged that an order passed by the learned trial Judge under sub-rule (1) of Order 15-A during the pendency of the suit under section 41 of the Act, is not merely a procedural order, but has serious consequences. Hence, the submission was that the order is revisable under section 42(4) of the Act. On the other hand, Counsel urged on behalf of the petitioner that the order of deposit by itself does not entail the consequence that the defence would be struck off. The defence thereafter, can be struck off only at the discretion of the Court and it is open to a party against whom such an order is sought, to show sufficient cause under sub-rule (2). In the circumstances, it was urged on behalf of the petitioner that no revision would lie against the order of deposit under sub-rule (1) of Order 15-A since that is merely a procedural order.
4. Having heard learned Counsel, I am of the view that the preliminary objection to the maintainability of the suit has to be sustained. Order 15-A of the Code of Civil Procedure as it originally stood reads as follows:
"XV-A1. (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 up to 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. ......................"
5. The provisions of Order 15-A as they originally stood applied only to a suit between a lessor and a lessee. The provision was sought into force with effect from 1st October, 1983 and it was framed by this Court in the exercise of its powers conferred by section 122 of the Code of Civil Procedure, 1908. Section 122 empowers the High Court to make Rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence. The provisions of Order 15-A as they then stood came up for consideration before a learned Single Judge of this Court, Mrs. Justice Sujata Manohar (as the learned Judge then was) in Sangeeta Prints v. Hemal Prints, MANU/MH/0301/1985 : AIR1986Bom423 . The learned Judge, relying upon the judgment of a Division Bench of this Court in Chandrakant S. Deshmukh v. Haribhau MANU/MH/0519/1982 : 1983 Mh.L.J. 88, held that though Order 15-A, as it then stood, applies specifically only to suits between a lessor and a lessee, by analogy, similar orders can be passed in a case between a licensor and licensee. In holding thus, reliance was placed on the provisions of Order 39, Rule 10 and section 151 of the Code. Adverting to the previous judgment of a Division Bench of this Court reported in 1983 Mh.L.J. 88, the learned Judge held thus:
"The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and occupation of their premises while 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 harm, then the courts are not powerless to make orders so as to mitigate that harm. By parity of reasoning, in cases between a licensor and licensee also a similar order can be passed. Such orders as between a lessor and lessee are now expressly permitted under Order XV-A, Civil P.C. By analogy, similar orders can be passed in cases between licensor and licensee also."
6. Subsequently, the provisions of Order 15-A came to be amended with effect from 11th January, 1990 so as to bring under their purview, suits by licensors against licensees. Order 15-A as it now stands provides thus:
"1. (1) In any suit by a lessor or a licensor against a 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 up to 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.
(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 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 purposes of this rule."
7. Sub-rule (1) of Order 15-A as amended applies to a suit by a lessor against a lessee or a licensor 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 licensee 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 payable 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 recovered. 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 provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-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), strike off the defence. Undoubtedly, before striking off the defence, 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 be 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 effect 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.
8. In these circumstances, the petition is rejected, keeping it open to the petitioner to expose its remedy of a revision under section 42(4) of the Act.
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