*THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY + C.R.P.No.1379 of 2011 %13.07.2011 #Taste Hotels Private Limited. ..Petitioner. Vs. $Madisetty Jayasri and another. ..Respondents. !Counsel for the petitioner : Sri Y.V.Ravi Prasad. ^Counsel for the Respondents : Sri M.V.S.Suresh Kumar <Gist : >Head Note: ?Cases Referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.No.1379 of 2011 ORDER: The petitioner is the sole defendant in O.S.No.4 of 2008. The respondents are the owners of commercial premises situated in Ongole Town. They leased the same to the petitioner for establishment of a Hotel. A lease deed was executed on 13.11.2006. Salient features of the lease are that the lease shall be for a period of 20 years, on a monthly rent of Rs.50,000/-, with periodical revisions. The deed contains clauses, which provides for termination of lease, in the event of default in payment of rents, for certain months consecutively. The respondents filed the suit initially in the Court of Additional Senior Civil Judge, Ongole, for eviction of the petitioner. It was alleged that the lease stood terminated, on account of the default committed by the petitioner. They filed I.A.No.42 of 2008 under Order XVA C.P.C., with a prayer to direct the petitioner to deposit the rents together with the arrears that have accumulated to the tune of Rs.2,55,000/-. The learned Additional Senior Civil Judge, passed an order on 26.06.2009, directing the petitioner to pay a sum of Rs.10,50,000/- as arrears, and placing it under the obligation to pay the rents regularly. The petitioner filed I.A.No.1105 of 2009 under Section 145 C.P.C. with a prayer to extend the time stipulated for payment of arrears till 31.08.2009. Time was extended and the amount was deposited, within the extended time. The respondents filed I.A.No.1380 of 2009 with a prayer to strike off the defence, on the ground that an amount of Rs.10,37,480/- was deposited on 31.08.2009 without notice to them, and they have withdrawn the amount without prejudice to their rights. Certain subsidiary contentions were also advanced. The respondents filed I.A.No.383 of 2010 under Section 151 C.P.C. with a prayer to direct the petitioner to submit copy of Form16-A filed under Section 203 of the Income Tax Act. When I.A.Nos.1380 of 2009 and 383 of 2010 were pending enquiry, the suit was transferred to the Court of I Additional District Judge, Ongole. The suit was renumbered as O.S.No.105 of 2010 and I.A.Nos.1380 of 2009 and 383 of 2010 as I.A.Nos.479 & 480 of 2010, respectively. The applications were opposed by the petitioner. Through a common order, dated 16.03.2011, the trial Court allowed both the applications. On the basis of order passed in I.A.No.479 of 2010, it has also decreed the suit. This C.R.P. is directed against the order in I.A.No.479 of 2010. During the pendency of the present revision, the petitioner A.S.No.213 of 2011, feeling aggrieved by the decree dated 16.03.2011 passed in O.S.No.105 of 2010. After hearing the learned counsel for the parties, this Court had allowed the appeal, set aside the decree and remanded the matter to the trial Court for adjudication on merits. In this revision, learned counsel for the parties, have advanced arguments almost on the same lines. They have also drawn the attention of this Court, to the relevant provisions of law and the specific facts that have bearing on the matter. On the face of it, the approach adopted by the trial Court was untenable. I.A.No.479 of 2010 was filed by invoking Order XVA and Order XII Rule 6 C.P.C. Both the provisions operate totally in different fields. Hardly there exists any similarity or overlapping between these provisions. While the former pertains to striking off defence, the latter deals with the admissions and the consequences thereof. An objection ought to have been raised by the Court, for the application in which two distinct and different provisions were invoked. Assuming that two separate applications were filed for the respective reliefs, it needs to be seen as to whether the trial Court dealt with the same in accordance with law. The defence of a defendant in a suit for eviction of a lessee can be struck off, if only he failed to deposit the lease amount, as directed by the trial Court in an application filed under Order XVA C.P.C. It needs to be mentioned that the Court is conferred with the power to extend the time stipulated for deposit of the arrears. In the instant case, the trial Court did pass an order for deposit of the arrears of rents, and the deposit has since been made within the time extended by the Court. The learned I Additional District Judge, however, proceeded on the assumption that the very fact that the application was filed for extension of time would prove the fact that the amount was not deposited. This opinion was arrived at after time was extended by the learned Additional Senior Civil Judge, where the suit was pending earlier and the amount was not only deposited but also withdrawn by the respondents. It can be safely be said that the finding recorded by the learned I Additional District Judge, is perverse, contrary to law and arrived at without application of mind. Added to the illegality committed in holding that the defence was liable to be struck off, the learned I Additional District Judge proceeded to decree the suit, little realizing that striking off of the defence by itself, does not pave the way for the suit to be decreed and that the respondents have to make out a case by leading oral and documentary evidence. Rule 6 of Order XII C.P.C. can be invoked when there exists an admission, which may not be in a specific form. Such admission must be with reference to an important issue in the suit. Assuming that the acts and omissions on the part of the petitioner constitute admission, of non-payment of rent, the same cannot result in decreeing of the suit. The reason is that Section 111 of the Transfer of Property Act (for short ‘the Act’), which deals with the termination of the leases by operation of clauses in the lease deed, gets attracted. Other provisions of the Act deal with the circumstances under which a lease can be said to have been terminated, and the mutual rights of the respective parties in relation thereto. There was some uncertainty as to whether the respondents invoked Section 106 or 111 of the Act. When such is the divergence and conflict of opinions, there was no scope for invoking that provision. At any rate, the respondents were under obligation to plead the necessary ingredients of the respective provisions invoked by them by filing separate applications and to prove them to the satisfaction of the Court. Another peculiarity in the matter is that even while decreeing the suit on 16.03.2011, the trial Court passed an order in I.A.No.480 of 2010, directing the petitioner herein to submit Form 16-A on or before 21.03.2011. The trial Court did not realize that once the suit is decreed, it just cannot permit any proceedings in it, except when E.P. is filed. Added to that, not a word was discussed in I.A.No.480 of 2010. The whole approach of the trial Court was unsatisfactory, hasty and perverse. The C.R.P. is accordingly allowed and the order under revision is set aside. If the respondents still feel the necessity of invoking Order XVA, and Rule 6 of Order XII C.P.C., they shall be entitled to do so by filing separate applications under the respective provisions. If such applications are filed, they shall be dealt with, on their own merits. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 13.07.2011 L.R. copy to be marked. GJ