As far as maintainability of the application is concerned, in my
view, Order 15A
of the Code of Civil Procedure can be invoked at the
appellate stage also in view of the provisions of Section 107(2) of the Code
of Civil Procedure. In any case, the appellate Court can exercise jurisdiction
under Section 151 of the Code of Civil Procedure in such situation for the
ends of justice.
The learned District Judge has failed to exercise jurisdiction
vested in him by rejecting the prayer of the petitioner to strike off the
defence of the respondent Nos. 1 and 2.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7007 OF 2016
Santosh @ Ambadas Jayendra Vs M/s. Khemka Automobiles,
CORAM : Z.A.HAQ, J.
DATED : DECEMBER 20, 2017.
1. None appears for the respondents though served.
2. Heard Shri J.J. Chandurkar, Advocate for the petitioner/ decree
holder.
3. The petitioner had filed Small Causes Civil Suit No. 87 of 2005
praying for decree for ejectment, possession and damages. In the civil suit,
the petitioner/ plaintiff had filed an application under Order 15A
read with
Section 151 of the Code of Civil Procedure seeking directions against the
defendants to deposit/ pay the amount of arrears of rent and continue to pay
the same regularly. This application was rejected by the trial Court. The
order passed by the trial Court rejecting application filed by the petitioner/
plaintiff was challenged before this Court in Writ Petition No. 1386 of 2011
which was allowed by the judgment dated 2nd April, 2012. This Court had
directed the defendant Nos. 1 to 3 to deposit the amount of Rs.66,250/before
the trial Court within two months from 23rd April, 2012. This Court
had directed the defendant Nos. 1 to 3 to deposit regularly the amount of
Rs.1250/per
month from 1st December, 2009 till the decision of the civil
suit. The civil suit is decreed by the judgment dated 13th March, 2015. The
judgment and decree passed by the trial Court is challenged by the
respondent Nos. 1 and 2 in Regular Civil Appeal No.70 of 2015. The
respondent No.4 has separately challenged the judgment and decree passed
by the trial Court by filing Regular Civil Appeal No. 68 of 2015. It is
submitted by the learned advocate that the petitioner that the respondent
No.3 has not challenged the judgment and decree passed by the trial Court.
4. In Regular Civil Appeal No. 70 of 2015, the petitioner/ decree
holder filed application (Exh.10) under Order 15A read with Section 151 and
107 of the Code of Civil Procedure contending that after the judgment is
delivered in Writ Petition No.1386 of 2011, the defendant Nos. 1 and 2
deposited an amount of Rs.1,12,500/on
11th June, 2012, deposited amount
of Rs.3,750/on
5th February, 2013, deposited amount of Rs.7,500/on
30th
July, 2013, deposited amount of Rs.3,750/on
27th November, 2013 and
deposited amount of Rs.5,000/on
15th April, 2014 and after April, 2014 the
defendants have not deposited the amount of rent/ occupation charges.
According to the petitioner/ decree holder, the defendant Nos. 1 to 3 failed
to deposit the amount towards occupation charges for the period from May,
2014 till March, 2015 i.e. till the decision of the civil suit and this is in
defiance of the directions given by this Court. According to the petitioner/
decree holder, the defendants were under obligation to regularly deposit the
amount of Rs.1,250/per
month towards occupation charges even during
pendency of the appeal before the District Court, but they have not deposited
any amount. The petitioner/ decree holder prayed that as the defendant
Nos.1 and 2 have failed to comply with the directions given by this Court
regarding deposit of occupation charges, their defence be struckoff
and the
appeal filed by them be dismissed.
5. According to the petitioner, the application for striking down
defence of the defendant Nos. 1 and 2 (civil suit proceeded exparte against
the defendant No.3) could not be filed till disposal of the civil suit because of
the nature of directions given by this Court as recorded in paragraph 6 of the
judgment, enabling/permitting the defendant Nos. 1 to 3 to deposit the
amount till the disposal of the civil suit. Relying on the provisions of Section
107(2), it is argued that the provisions of Order 15A
of the Code of Civil
Procedure can be invoked by the party at the appellate stage also as the
appeal is continuation of the civil suit. It is submitted that in any case the
petitioner sought striking of defence of the defendant Nos. 1 and 2 under
Section 151 of the Code of Civil Procedure and looking to the fact that the
defendant Nos. 1 and 2 have not only willfully defied the directions given by
this Court but have come out with the bold defence that the directions
operated only till the disposal of the civil suit, the learned District Judge
should have exercised jurisdiction under Section 151 of the Code of Civil
Procedure and the defence of the defendant Nos. 1 and 2 should have been
struck off and the appeal filed by them should have been dismissed.
6. By the judgment given in Writ Petition No. 1386 of 2011 this
Court directed the defendants to deposit the arrears of rent and to continue
to deposit the amount of rent regularly every month. The directions given by
this Court as recorded in paragraph No.6 of the judgment are as follows:
“6. … They are further directed to continue to deposit
regularly the amount of Rs.1,250/per
month from 1122009
till the decision of the suit. ...”
According to the petitioner, as per these directions the
defendants could have deposited the amount till decision of the civil suit.
Before the District Court it was argued on behalf of the defendants that “till
decision of the suit” in the directions means the defendants were liable to
deposit the amount of rent/ occupation charges till decision of the civil suit.
7. If the submission of the defendants as made before the District
Court that the defendants were required to deposit the amount of rent/
occupation charges till the decision of the civil suit only, then also there is
default by the defendant Nos. 1 and 2. The amount of rent/ occupation
charges is deposited only till April, 2014 and it is not deposited from May,
2014 till March, 2015 when the civil suit is decided. The learned District
Judge has failed to consider this relevant aspect.
8. Rule 2 of Order 15A of the Code of Civil Procedure requires that
the defendant or his advocate shall be served with notice to show cause why
the defence should not be struckoff
and before an order striking off defence
is passed, the Court has to consider the explanation given by the defendant
for not depositing the amount as directed by the Court. In the present case,
this Court directed the defendants to continue to deposit the amount of
Rs.1,250/per
month regularly till the decision of the civil suit. The
defendant Nos. 1 and 2 have not deposited the amount from May, 2014 till
the civil suit is decided in March, 2015. The defendant Nos.1 and 2 have not
deposited the amount of rent/occupation charges, as directed by this Court,
even after the decision of the civil suit and during pendency of the appeal
filed by them before the District Court. Instead of giving any explanation
pointing out any justifiable reason for not depositing the amount and instead
of showing willingness to deposit the amount, the defendant Nos. 1 and 2
raised a bold defence before the District Court that as per the directions given
by this Court they were required to deposit the amount only till the decision
of the civil suit. The effect is that the defendant Nos. 1 and 2 continue to
occupy the premises without paying anything and that too after directions
given by this Court.
Considering the facts of the case, I find that the learned District
Judge has failed to exercise the jurisdiction vested in him and has committed
an error by rejecting the application filed by the petitioner / decree holder.
9. As far as maintainability of the application is concerned, in my
view, Order 15A
of the Code of Civil Procedure can be invoked at the
appellate stage also in view of the provisions of Section 107(2) of the Code
of Civil Procedure. In any case, the appellate Court can exercise jurisdiction
under Section 151 of the Code of Civil Procedure in such situation for the
ends of justice.
The learned District Judge has failed to exercise jurisdiction
vested in him by rejecting the prayer of the petitioner to strike off the
defence of the respondent Nos. 1 and 2.
In view of the above, the following order is passed:
i) The impugned order is set aside.
ii) The defence of the respondent Nos. 1 and 2 is struck off.
iii) The learned District Judge is directed to decide the appeal till 5th
May, 2018.
iv) Regular Civil Appeal No. 68 of 2015 filed by the present
respondent No.4 shall also be decided till 5th May, 2018.
Rule is made absolute in the above terms.
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Judgment 8 wp7007.16.odt
Respondent Nos.1 and 2 (defendant Nos.1 and 2) have not
assisted this Court and have opted to stay out of the proceedings. The
defendant Nos. 1 and 2 shall pay amount of Rs.Twenty Thousand towards
costs to the petitioner/ decree holder and produce receipt of it on record of
the appeal within one month, failing which the learned District Judge shall
pass appropriate order against the defendant Nos. 1 and 2, considering it to
be noncompliance
of the order passed by this Court.
JUDGE
RRaut..
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