1 93 wp 6408.11.doc k IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6408 OF 2011 Mahanagar Telephone Nigam Ltd. .. Petitioners Vs. Maharana Inn Resorts Pvt. Ltd. .. Respondents Mr. Viral D. Shukla i/b Shukla & Associates for the petitioners. Mr. D.H. Mehta, Senior Counsel i/b Mr. N.M. Shah for respondent no.1. CORAM: K.K. TATED, J. DATE: 29th SEPTEMBER, 2011 PC: 1. Heard the learned counsel for the parties. 2. Rule. 3. Rule is made returnable forthwith and heard finally by consent of the parties. 4. By this petition under Article 227 of the Constitution of India, the petitioner - original defendant challenges the order dated 2 93 wp 6408.11.doc 16th June, 2011 passed by the learned Judges, Small Causes Court, Mumbai in Revision Application No.120 of 2008 arising out of the judgment and order of the trial court dated 13th March, 2008 passed below Exhibit no.12 in L.D. Suit No.49 of 2005 directing the Petitioner to deposit a sum of Rs. 31,77,600/- in the court within one month from the date of the order. 5. A few facts of the matter are as under: The Respondent – original Plaintiff filed L.D. Suit No.49 of 2005 in the court of Small Causes at Mumbai for declaration that the agreement of leave and licence between the Petitioner and Respondent is valid, subsisting and binding on the Petitioner – original Defendant and the Petitioner - original Defendant are liable to pay the agreed monthly compensation till the expiry of the licence period and also claimed arrears of monthly compensation. In the said suit, Respondents preferred Application below Exhibit 12 under Order XV-A of the Civil Procedure Code (as per the Bombay Amendment) claiming arrears of compensation and service charges covering the period from 1st December, 2004 to 31st March, 2005. The said 3 93 wp 6408.11.doc Application was decided by the single Judge of Small Causes Court on 13th March, 2008 directing the Petitioner to deposit a sum of Rs.31,77,600/- with the court within a one month from the date of the order. Being aggrieved by the said order, Petitioner preferred Revision Application no.120 of 2008 before the Division Bench of Small Causes Court at Mumbai. The Small Causes Court by impugned oral judgment dated 16th June, 2011 upheld the order passed by the Single Judge and dismissed Petitioner’s Revision Application. 6. The learned counsel appearing on behalf of Petitioner submits that both the courts below erred in coming to the conclusion that the Application filed by the Respondent under Order XV-A of the Civil Procedure Code is maintainable in law. He submits that both the courts failed to consider that the Respondent – original Plaintiff filed L.D. Suit only for the purpose of declaration of existence of leave and licence between Petitioner and Respondent and for recovery of arrears of licence fees. He submits that Order XV-A of the Civil Procedure Code specifically state that in any suit by lessor or a licensor against a lessee or a licencee as the case may be for eviction with or 4 93 wp 6408.11.doc without the arrears of rent or licence fees and future mesne- profits from him, the Application is maintainable under the said Order. In the present case, the Respondent filed suit only for declaration and for recovery of arrears of licence fees and therefore, the application itself is not maintainable. On this count only, both the orders passed by the trial court as well as Appellate Court are liable to be set aside. He further submits that initially the Respondent preferred an Application below Exhibit 6 for the same cause of action and the same was rejected by the courts below and therefore, the present Application below Exhibit 12 is not maintainable. 7. Admittedly, both the courts below held that Petitioner – original Defendant no where disputed in the pleadings that the amount of Rs.31,77,600/- as a compensation was due from them for the first floor suit premises. The Petitioner only contended that due to lesser area of the ground floor premises the payment made by them to the Respondents was in excess by Rs.31,77,752/- and they were entitled to adjust the said amount towards the dues of the Respondents for the first floor premises. This itself shows that the Petitioner – original 5 93 wp 6408.11.doc Defendant has admitted that the amount claimed by the Respondents was due and payable by them. 8. The learned counsel appearing on behalf of the Petitioner submits that the trial court passed the impugned order under Order XV-A of the Code of the Civil Procedure. He submits that Order XV-A of the Code of the Civil Procedure is not applicable in the present case because the Respondent – original Plaintiff, has not filed the suit for eviction of the Petitioner as licencee. This contention of the Petitioner is not maintainable in law because after perusal of the Plaint which is produced by the Petitioners, it is evident that the Respondent – original Plaintiff filed the suit for declaration and recovery of arrears of licence fees. Prayer clauses (a) and (b) of L.D. Suit No.49 of 2005 reads thus: “(a) that it be declared that the Agreement of leave and license between the Plaintiff and the Defendants is valid, subsisting and binding on the Defendants and that the Defendants are liable to pay the agreed monthly compensation till the expiry of the license period; 6 93 wp 6408.11.doc “(b) that pending the hearing and final disposal of the suit, the Defendants be directed to deposit or pay the arrears of the monthly compensation @ Rs.7,94,000/- from 01.12.2004 and thereafter continue to deposit in this Hon’ble Court monthly compensation of Rs. 7,94,400/- from 01.04.2005 with liberty to the Plaintiffs to withdraw the same;” Prayer clauses (a) and (b) of Plaint squarely covered by Order XV-A(1) of the Civil Procedure Code. Order XV-A(1) of the Civil Procedure Code reads 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.” 7 93 wp 6408.11.doc 9. Bare reading of Order XV-A of the Civil Procedure Code shows that the suit as filed by the Respondent – original Plaintiff in a Small Causes Court against the Petitioner, the Application under Order XV-A of the Civil Procedure Code is maintainable. The Respondent in prayer clause (a) of the Plaint asked declaration that the agreement of leave and licence between the Petitioner and the Respondent is valid, subsisting and binding on the Petitioner. In prayer clause (b) the Respondent claimed arrears of monthly compensation. Therefore, the contention raised by the learned counsel appearing on behalf of the Petitioner about the non-maintainability of Application filed by the Respondent under Order XV-A of the Civil Procedure Code is not sustainable in law. 10.Both the courts below have held that the Petitioner, original defendant did not dispute in the pleadings that the amount of Rs.31,77,600/- was due and payable by them for the first floor of the leased premises. The only dispute raised by the Petitioners is that while surrendering the ground floor premises, taking into consideration the lesser area of the 8 93 wp 6408.11.doc ground floor premises, the payment made by the Petitioners to the Respondents was in excess by Rs.31,77,600/-. The Petitioners have further stated that they have to receive/or adjust the said amount from the Respondents; but they have not claimed the said amount as set off. Therefore, the courts below are fully justified in holding that the amount of Rs. 31,77,600/- was admittedly due and payable by the Petitioners to the Respondents for the period from 01.12.2004 to 31.03.2005. 11. The learned counsel appearing on behalf of the Petitioner relies on the judgment in the matter of Radheshyam vs. Tuljaprasad and others reported in AIR 2007 Bombay 83. Considering the facts and circumstances of the present case, the said authority is not applicable in the present case. In any case the suit is pending for hearing and final disposal. Not only that the trial court directed the Petitioner to deposit the said amount with the court, but also directed the same to be invested in Fixed Deposit. Therefore, the first contention raised by the learned counsel appearing for the Petitioner is not tenable. 9 93 wp 6408.11.doc 12. The next contention raised by the learned counsel appearing on behalf of the Petitioner that initially, the Respondent - original Plaintiff filed Exhibit 6 for same cause of action. Admittedly, this fact has been considered by the trial court at the time of passing the order dated 13th March, 2008. In any case, when the Petitioner admitted the non payment of the licence fees for the said period, there is no question of considering that fact at this stage in the present petition. 13.On the facts and in the circumstances of the present case, the impugned order appears to be proper and reasonable. There is no substance in the petition and same stands dismissed with no order as to costs. 14.The learned counsel appearing on behalf of the Petitioner seeks some time to deposit the amount as directed by the trial court. Considering his request, six weeks time is granted to deposit sum of Rs.31,77,600/- with trial court from today. (K.K.TATED,J.)