IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE SEVENTEENTH (17TH) DAY OF AUGUST, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition Nos.3578 and 4355 of 2010 CRP No.3578 of 2010: Between: M/s Jai Sri Hanuman Realtors, rep. by its partners … Petitioners And: B. Muneeswar & another …Respondents CRP No.4355 of 2010: Between: B. Muneeswar & another … Petitioners And: M/s Jai Sri Hanuman Realtors, rep. by its partners …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition Nos.3578 and 4355 of 2010 COMMON ORDER: These revisions are directed against the order dated 10.06.2010 in IA No.58 of 2010 in OS No.341 of 2009 on the file of the VII Senior Civil Judge, City Civil Courts, Hyderabad, wherein the said petition filed under Order XV-A, read with section 151 CPC, seeking direction to the respondents/defendants to pay a sum of Rs.52,03,175/- and also further direction to pay Rs.3,00,000/- per month in future, was allowed in part, directing the respondents/defendants to deposit the admitted rent of Rs.63,925/- per month from November 2007 till date and further directed to deposit the same amount on or before 10th of every month till the disposal of the suit and with further direction to the plaintiff to deposit Rs.48,80,000/- received by them from the defendants for construction of the building into court, subject to the result of the suit. 2. Aggrieved by the same, plaintiffs filed CRP No.3578 of 2010 and the defendants/respondents filed CRP No.4355 of 2010. As both the matters arose out of the same order, they are heard together and are being disposed of by this common order. Perused the record. 3. The petitioners in CRP No.3578 of 2010, who are plaintiffs, filed suit against the respondents/defendants, who are petitioners in CRP No.4355 of 2010, for cancellation of the registered lease deed dated 16.04.2007 pertaining to 2nd, 3rd and 4th floors of the schedule property, which is an area of 12785 sq. ft. bearing D.No.16-2-704, Malakpet, Hyderabad and for eviction of the defendants from the suit property and for mesne profits at the rate of Rs.3,00,000/- per month. According to the plaintiffs, they are the absolute owners of the suit property, consisting of cellar plus five floors, that 2nd, 3rd and 4th floors were leased out to the defendants, which is the suit schedule property for running a lodge on a monthly rent of Rs.63,925/- per month payable on or before 7th of every subsequent month. The registered lease deed dated 16.04.2007 was entered into for a period of 18 years. The defendants started running business in the name and style of ‘Hotel Samskar-Inn’ in the schedule property. The defendants failed to pay the monthly rents from November 2007 onwards. Further, they made unauthorized construction and alterations in the cellar and opened reception counter without permission of the plaintiffs and also sub let the property to one Sudheer Reddy. The plaintiffs therefore terminated the lease and cancelled the registered lease deed by issuing notice dated 09.10.2008. The defendants got issued a reply with false allegations and failed to vacate the premises. As on the date of issuing notice, the defendants were in arrears of rent in a sum of Rs.7,99,062.50 apart from mesne profits of Rs.3,00,000/- from November 2009 till March 2009 and also future mesne profits. The defendants filed suit OS No.20 of 2009 on the file of the 7th Senior Civil Judge, City Civil Courts, Hyderabad for injunction and obtained exparte interim injunction. Subsequently, they withdrew the suit as not pressed. 4. The 2nd defendant filed written statement contesting the suit. According to them, the plaintiffs instead of handing over the possession of the building within 180 days as per the terms of the lease deed, took nearly one year to construct the building and finally handed over the same in the last week of March 2008. The defendants have incurred additional expenditure of Rs.1,00,000/- to get the works left out by the plaintiffs completed. The plaintiffs received an amount of Rs.48,80,000/- under receipts towards construction and development of the building. The defendants never committed any breach of the terms and conditions of the lease. The question of withholding the rents from November 2007 does not arise, as the building was handed over to the defendants in March 2008. The alleged sub lease in favour of Sudheer Reddy is false and on the other hand, the plaintiffs are hand in glove with the said Sudheer Reddy and they conspired and fabricated MoU dated 05.06.2008 and are trying to grab the property. 5. While so, the plaintiffs filed IA No.58 of 2010 under Order XV-A CPC seeking a direction to the defendants to pay Rs.52,03,175/- towards rent after availing the rent free fitment period of 180 days from December 2007 to October 2008 at the rate of Rs.63,925/- per month and mesne profits at Rs.3,00,000/- after termination of the tenancy with effect from November 2008 to January 2010. The respondents filed counter, opposing the said application, contending that a sum of Rs.53,80,000/- was paid by the defendants to the plaintiffs duly covered by receipts and the direction sought for payment of the alleged arrears is beyond the scope of plaint itself and the direction sought regarding the payment of alleged mesne profits is untenable, as in the plaint it was pleaded that “regarding damages and mesne profits, the plaintiffs reserved their right to file a separate petition after the decree is passed and by proving the entitlement for the said amount by adducing evidence in the trial.” 6. The learned Senior Civil Judge by impugned order directed the defendants to deposit the admitted rent of Rs.63,925/- from November 2007 onwards till date and continue to pay the same on or before 7th of every succeeding month and further directed that the plaintiff shall not withdraw the same. It was further directed that the plaintiffs shall deposit Rs.48,80,000/- into court. Aggrieved by the said order, both parties have filed the present two revision petitions. 7. Admittedly, the plaintiffs are the absolute owners of the suit schedule property and the defendants entered into a registered lease deed with the plaintiffs. It is also not disputed that the monthly rent stipulated is Rs.63,925/-. It is also not disputed that the lease deed does not stipulate any reimbursement or adjustment of the rents paid towards amount received by the plaintiffs during the course of construction. It is also not disputed that the plaintiffs did in fact receive certain amounts from the defendants for the purpose of construction. An objection was raised regarding the maintainability of the petition under Order XV- A CPC, as the suit is filed for cancellation of the lease deed. As seen from the averments in the plaint, apart from seeking cancellation of the registered lease deed, the plaintiffs have sought for eviction of the defendants. The plaintiffs have also issued a notice dated 09.10.2008 terminating the lease on the ground that the defendants have violated the terms and conditions of the lease. 8. The question as to whether or not the defendants have committed any breach of terms and conditions of the lease, whether or not the plaintiffs are justified in terminating the lease and whether or not the defendants are liable for eviction, are all matters to be considered by the trial court on evidence that may be adduced during the course of trial. The scope of the present enquiry in the application filed under Order XV-A CPC is very limited. 9. Order XV-A CPC reads as under: “(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 ill 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 decree. (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.” 10. A plain reading of the above provision would show that in any suit by lessor against lessee for eviction, the defendant shall deposit such amount as the court may direct on account of the arrears up to the date of the order and thereafter continue to deposit the rent in every succeeding month till decision of the suit. In the event of any default in making deposit within the time fixed by the court, the court may subject to provisions of sub-rule (2) strike off the defence. Under sub-rule (2), the court after serving notice on the defendant to show cause as to why the defence should not be struck off, 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. 11. The petitioners are seeking a direction to the defendants to deposit arrears of rent at the rate of Rs.63,925/- per month from December 2007 to October 2008 in a sum of Rs.7,03,175/- and mesne profits at the rate of Rs.3,00,000/- per month from November 2008 to January 2010 in a sum of Rs.45,00,000/-, totaling Rs.52,03,175/-. According to the defendants, the building itself was handed over on completion to them in March 2008 and therefore, the question of paying rent from December 2007 does not arise. They would further contend that the plaintiffs have received from them Rs.53,80,000/- for the purpose of construction of the building and out of it, Rs.5,00,000/- was paid towards earnest money deposit, and the said amount was utilized for construction and there was an agreement between the parties for reimbursement of the rent from the said amount and therefore, the question of arrears of rent does not arise at all. The learned Senior Civil Judge on perusal of the bank statements observed in the impugned order that payments made by the defendants to the plaintiff cannot be disputed. As rightly observed by the trial Court, the claim of the defendants that there was reimbursement scheme under which the rents were agreed to be adjusted towards amount paid by the defendants to the plaintiff, is a matter in dispute. According to the defendants, the said arrangement for adjustment of the rent is borne-out by a notarized affidavit dated 03.04.2007, which is said to have been executed by one Harishkumar Gupta, one of the plaintiffs. The plaintiffs, while denying the said affidavit and the contents thereof, would contend that the registered lease deed, which was entered into subsequently on 16.04.2007 does not contemplate any such reimbursement of the rent and the terms and conditions of the lease deed alone would bind the parties. The said aspects have to be necessarily considered by the trial Court on evidence that may be adduced during the course of trial. The question as to when the possession of the building was handed over to the defendants is also in dispute, which can be considered only at the time of the trial. The alleged sub lease of the building to one Sudheerreddy is also a disputed question of fact. The interlocutory proceedings initiated under Order XVA are not the proper forum for deciding the disputed questions of fact, as they are all matters to be considered on evidence that may be adduced during the trial. The purpose of Order XVA CPC is only to ensure that the defendant shall not continue with his defence without paying into the court the rents which are due and payable. Order XVA CPC enables the defendant to show cause as to why he shall not be required to pay the rents and why he shall be relieved from the order of striking off of the defence. When the rents for a certain period are in dispute, the defendants cannot be directed to pay the rents for the disputed period. Similarly, the defendants cannot avoid payment of rents at the admitted rate and for the admitted period by pleading a scheme of adjustment of rents, when such an adjustment or reimbursement is not contemplated by terms of the registered lease deed. As there is no dispute regarding quantum of rent at the rate of Rs.63,925/- per month and as the said rent was admittedly not paid from December 2007, the trial Court is justified in giving a direction to the defendants to pay arrears of rent at the rate of Rs.63,925/- per month from November 2007 till date with a further direction that the defendants shall continue to pay the same on or before 10th of every succeeding month. 12. In view of the contentions of the parties that a huge amount of Rs.53,80,000/-, including the earnest money deposit of Rs.5,00,000/- paid by the defendants is lying with the plaintiffs and pending adjudication of the dispute regarding the adjustments of the rents against the said amount, the trial Court is justified in giving further direction that the plaintiffs shall not withdraw the rents deposited by the defendants till the disposal of the suit. However, the further direction issued by the trial court directing the plaintiffs to deposit Rs.48,80,000/- received from the defendants for construction of the building into court is uncalled for. The said direction is clearly outside the scope and purview of Order XV-A CPC and is therefore, unsustainable. 13. In the circumstances, the impugned order insofar as it relates to the direction to the defendants to deposit arrears of rent at the rate of Rs.63,925/- from November 2007 till the date and further direction to deposit the rent at the same rate on or before 10th of every succeeding month till disposal of the suit, with further direction that the plaintiffs shall not withdraw the said amount, is confirmed. However, the other direction that the plaintiffs shall deposit Rs.48,80,000/- into court is set aside. 14. In the result, both the revision petitions are disposed of accordingly. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 17.08.2011 bss