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Tuesday, June 30, 2015

Or.XV-A of the Code - Suit for eviction and for arrears of rents - interim application for deposit of arrears of rents - before filing written statement ,basing on notices and exchange of notice - court allowed the same - when there is dispute about the arrears of rents - quantum of rent and before filing the written statement - as per sub rule 2 no petition be allowed and as such set aside the order and reopened the I.A.for fresh disposal - 2015 Telangana & A.P. msklawreports

The plaintiff / respondent herein filed the suit for eviction of the
defendant petitioner from the suit scheduled property and for delivering
the vacant position thereof to her.  The plaintiff also prayed for a sum of
Rs.54,41,874/- to be paid towards arrears of rent together with the
interest at the rate of 12% per annum from the date of the suit till the
same is realized and also sought for future mesne profits.

 The plaintiff has also filed I.A.No.315 of 2014 for a direction to
the respondent to pay her an amount of Rs.52,79,713/- being the arrears
of rent payable.  This I.A.No.315 of 2014 is moved in terms of and in
accordance with Order-XV-A read with Section 151 of the Code of Civil
Procedure (for short the Code).  That application is, now, ordered on
16-04-2015.   =

Rule (1) clearly spelt out that the defendant, while filing his
written statement, shall deposit the amount representing the undisputed
arrears calculated up to 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.

Therefore, it is
contended that till such time the written statement is filed by the
defendant, the question of either depositing the arrears of rents or the
Court directing him to deposit any such arrears of rent would not arise.

It is true that Rule (1) of Order XV-A of the Code, in its content
and terms, speaks of the written statement of the defendant and also
refers to the assertions made therein with regard to the payment /
obligation to pay the agreed rents up to that date,
 but however, Rule
(2) makes it clear that where the defendant pleads in the written
statement that no arrear of rent or licence fee exists, it shall be
competent for the Court to pass an order in that regard after affording
an opportunity to both sides.
Therefore, Rule (2) will have applicability
even in a given case earlier to the date of filing of the written
Take a case where the plaintiff himself admits that no rents
are due and payable by the defendant, but however, he is seeking
recovery of possession as the period of lease has expired, he is entitled
to recover the possession of the leased out premises.

In such an event,
the Court need not wait for the written statement to be filed by the
defendant formally disclosing that he is not in arrears of rent due at all.

In view of the very claim of the plaintiff that no arrears are payable, the
Court, at the very outset, can direct the defendant to continue to
deposit the agreed rent payable during the pendency of the suit.
In such
cases, as contended , is it really required to wait for
the defendant to file his written statement?

Therefore, I am of the
opinion that Rule (2) of Order XV-A of the Code can have independent
applicability from that of the situation contemplated by Rule (1).
However, in the instant case, one glaring feature, which stares at
us, is this; in support of I.A.No.315 of 2014, the plaintiff has filed an
affidavit and in that affidavit, nowhere one will find as to how the
arrears have been calculated.  Further, in para 21 of the affidavit, it is
set out that the respondent in that interlocutory application is liable to
pay to the petitioner an amount of Rs.54,41,874/-, whereas in the
petition filed, the amount payable by the respondent was shown as

Thus, there was a variance in the amount mentioned in
the prayer portion of the affidavit filed in support of the interlocutory
application and the interlocutory application itself.  The learned Judge
has straightaway proceeded and towards the end of para 6 of his order,
he recorded that the respondent has to pay the arrears of rent
amounting to Rs.54,41,874/- without making any effort to ascertain as
to how this amount has been worked out by the plaintiff in the
interlocutory application.
When I confronted  as to how he has worked out, the
learned counsel would fairly submit that arrears of rent have been
calculated for the period commencing from 01-08-2005 onwards and for
the period from 01-09-2006, 5% of enhancement has been calculated.
Firstly, in the absence of any term stipulating such annual hike in rentals
by 5%, any such claim becomes contentious.
This apart, in the
calculation memo filed today by the learned counsel , it is
shown that a sum of Rs.7,36,479/- is received as rent, though the
date(s) on which it was received or for the period for which it was
received is not mentioned.
If this amount of Rs.7,36,479/- was, in fact,
received by the plaintiff / petitioner in the interlocutory application
without any demur, the question of calculating 5% hike for the period
commencing from 01-09-2006 onwards, perhaps, would become further  
more contentious.
This apart, for the post 01-09-2013 period, a sum or
Rs.29,549/- is calculated as monthly rent payable.  How and on what
basis this figure is worked out is not spelt out anywhere.  These are the
questions, which ought to have been adjudicated and without even
adverting to the same, the Court could not have mechanically passed the
order dated 16-04-2015.

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