IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2780 of 2009 Between: Chetteti Sravani (Minor), D/o. C. Mallesh and two others. ... PETITIONERS AND A. Vasudeva Raju. ...RESPONDENT Counsel for the Petitioners : Mr. V.L.G.K. Murthy Counsel for the Respondent : Ms. Aruna Yalagiri The Court made the following: ORDER: This revision is preferred by the plaintiffs in O.S.No.1121 of 2008 against the order dated 08.06.2009 passed in I.A.No.1718 of 2008 by the Principal Junior Civil Judge, Tirupati. The plaintiffs have filed the aforesaid suit for recovery of possession and for arrears of rent etc. The suit is one with respect to the landlord-tenant relationship as alleged in the plaint between the plaintiffs and the respondent. In the said suit, apart from seeking vacation of the respondent, a decree also is sought for recovery of rents from January 2008 till disposal of the suit at Rs.2,000/- per month. The said suit is based upon a notice under Section 106 of the Transfer of Property Act issued by the plaintiffs terminating the tenancy of the respondent under the notice dated 06.05.2008. 2. The said suit is resisted by the respondent herein by contending that the plaintiffs have no locus standi inasmuch as the property in question belongs to the father of the plaintiffs 1 and 2. It is also alleged that the father of the plaintiffs had executed an agreement of sale dated 29.03.2007 wherein the entire property bearing Door No.10-12-459/C, Town Survey No.3186 totally admeasuring 720 sq. feet with house constructed therein was agreed to be sold to the respondent herein for a sum of Rs.14,00,000/-. It is also alleged that under the said agreement a sum of Rs.3,00,000/-was paid on the date of agreement and the balance amount was payable after the vendor i.e. father of the plaintiffs 1 and 2 obtains permission from the District Court, Tirupati, as the plaintiffs are minors. The said sale, according to the respondent, has been finalized and in pursuance thereof the respondent has paid substantial amounts from time to time, which are evidenced by the endorsements on the said agreement itself and as per the last endorsement dated 07.09.2007 the respondent has paid a further sum of Rs.2,50,000/- and in view of the total payments of Rs.6,75,000/- to the father of the plaintiffs 1 and 2, the possession of the property is delivered to the respondent so as to enable him to enjoy the absolute rights. 3. Pending the said suit, petitioners herein filed I.A.No.1718 of 2008 invoking order XV-A of the Code of Civil Procedure, 1908 and seeking a direction against the respondent directing him to deposit arrears of rent at the rate of Rs.2,000/- per month from January 2008 till disposal of the suit. The said application was opposed by the respondent by filing counter affidavit where he denied any relationship of landlord-tenant between him and the petitioners. It was also contended by the respondent that as per the agreement of sale dated 29.03.2007 entered into between the father of the plaintiffs 1 and 2 and the respondent, substantial amounts have been paid by him on various dates subsequently and he is in possession of the property in part performance of the contract. The respondent, therefore, contended that neither the suit for eviction by the petitioners is maintainable nor there is any relationship of landlord-tenant. According to the respondent, he has so far paid Rs.6,75,000/- to the father of the plaintiffs 1 and 2 under the said agreement of sale and as such contended that he has no further liability to deposit any amount. 4. The aforesaid application was considered by the trial Court and it was of the view that the petitioners have not established even, prima facie, that there exists relationship of landlord-tenant between the parties and since the documents on the basis of which the petitioners have filed the suit viz. settlement deed and power of attorney given by the father of the plaintiffs 1 and 2, to manage the property and collect the rents, being disputed by the respondent, the trial Court was of the view that all these issues are, in fact, to be adjudicated in the suit and in the absence of any evidence of relationship of landlord-tenant, the direction to deposit the rents under Order XV-A CPC cannot be issued. It has, accordingly, dismissed the said application. Questioning the said order, the present revision is filed. 5. On the previous dates of hearing when I had heard this revision, I directed the learned counsel for the petitioners to file copies of agreement of sale as well as exchange of notices between the parties preceding the suit. The said documents have now been filed and the matter has been once again argued extensively by Mr. V.L.N.G.K. Murthy, learned counsel appearing for the petitioners and Mr. K.L.N. Rao, learned counsel appearing for the respondent in support of their respective case as mentioned above. 6. It is submitted that the father of the plaintiffs 1 and 2 holds a registered gift deed in his favour but with a conditional clause that the father of the plaintiffs 1 and 2 has no right, title or interest in the schedule property and has only been provided the right to mortgage for the welfare of the minor plaintiffs. Further, the father of the plaintiffs 1 and 2 has executed a document dated 25.11.2004 empowering the plaintiffs a right to let out the premises and to vacate the tenants and use the amounts for the purpose of welfare of the plaintiffs 1 and 2. The recital in the plaint shows that the third plaintiff has let out part of the premises on the western side ground floor for an oral monthly rent of Rs.2,000/- per month from 01.01.2007 and that the respondent is continuing in possession as a tenant but has stopped payment of rent from January 2008 onwards. The petitioners, therefore, issued a legal notice under Section 106 of the TP Act on 06.05.2008 and filed the present suit. 7. Learned counsel for the petitioners, therefore, submits that the suit having been based upon the relationship of landlord-tenant; even otherwise there is no other evidence for the respondent to establish as to how he entered into possession of the premises. It is also pointed out that though the father of the plaintiffs 1 and 2 is said to have executed the document dated 25.11.2004 in favour of the plaintiffs, the alleged agreement on the basis of which the respondent claims his possession is subsequent thereto and further, the endorsement as above said to have been recorded in the said agreement is dated 07.09.2007. The said agreement and the endorsement being subsequent to the very document under which the plaintiffs are entitled to manage the property, the said subsequent stand taken by the respondent is wrongly taken into consideration by the lower Court. He has also drawn the attention of this Court to the fact that the respondent cannot be allowed to continue in the property without paying rents to anybody. 8. Mr. K.L.N. Rao, learned counsel for the respondent contends that there is absolutely no evidence in support of the relationship of landlord- tenant between the parties. He also strongly objects to the entitlement of the plaintiffs to deal with the property including filing of the present suit and seeking eviction. According to the learned counsel, therefore, only the father of the plaintiffs 1 and 2 has title to the property and he has not instituted any proceeding against the respondent and on the contrary, he has executed an agreement of sale and has received substantial amounts from time to time and has made an endorsement dated 07.09.2007 on the reverse of the said agreement evidencing delivery of possession. He, therefore, submits that the possession of the respondent is under the said agreement and not as tenant and therefore, the Order XV-A CPC itself has no application. Learned counsel has placed reliance on a decision of the Supreme Court in RUKHAMANBAI v. SHIVRAM[1] to point out the difference between the capacity of vested remainder and a contingent interest holder. He, therefore, submits that the order of the Court below is perfectly justified on the facts and circumstances of the case and the respondent having parted with Rs.6,75,000/- out of the total consideration, was justifiably put in possession and he is not liable to make any further payment. 9. I have heard the aforesaid rival contentions. Before I proceed to consider the rival submissions, it is appropriate to extract Order XV-A CPC, which is inserted by G.O.Rt.No.156, Law (LA) Home Courts-D1 dated 29.01.2005 and published in A.P. Gazette Part 1 (Ext.) dated 23.02.2005, as under: “ORDER XV-A (1) In a suit for recovery of possession, on termination of lease, or licence, with or without a prayer for recovery of arrears of rent, or licence fee, with whatever description, the defendant, while filing his written statement, shall deposit the amount, representing the undisputed arrears, calculated upto that due into the Court and shall continue to deposit such amount, which becomes payable thereof within one week from the date on which is becomes due, till the judgment is rendered in the suit. (2) Whether the defendant pleads in the written statement that no arrears of rent or licence fee exists, it shall be competent for the Court to pass an order in this regard, after affording opportunity to both the parties, and in case any amount is found due, the defendant shall be under obligation to deposit the same, within the time stipulated by the Court and continue to deposit the amount which becomes payable thereafter, as provided under Rule 1: Provided that the time stipulated for payment of amount, as aforesaid, may be extended by the Court for reasons to be [recorded] for a period not exceeding 15 days. If the defendant commits default in making the deposits, as aforesaid, the Court shall strike off the defence. On such deposit it shall be competent for the plaintiff to withdraw the same. Explanation. – The expression “the amount representing the undisputed areas” shall mean the sum of rent, or licence fee calculated for the period for which it remained unpaid, after deducting from it any amount. (a) paid as tax, to a local authority, in respect of the property, (b) paid to the plaintiff under written acknowledgement; and (c) deposited into the Court, in any proceedings, in relation to the said property.” The very object and purpose of the above provision is to ensure that admitted rents are deposited pending the dispute between the landlord and tenant. Even otherwise and prior to the said specific provision, the Courts were held to have such power under Section 151 CPC to direct deposit of admitted rents pending suits. [see DIRECTOR OF CENSUS v. PUSHPAVATHI (1987 (2) APLJ 391)] 10. The contentions on either side, as briefly mentioned above, show that the respondent has occupied the suit schedule property, which is subject matter of O.S.No.1121 of 2008 but has not been paying rents to anybody from January 2008 onwards. While the petitioners claim that he is a tenant and liable to pay rent at Rs.2,000/- per month, the respondent contends that he is only an agreement holder and his possession is traceable to the endorsement in the agreement dated 07.09.2007. The said endorsement in the agreement is seriously contested by the petitioners and reliance is also placed on the provisions of the Stamp Act as well as Registration Act and in particular ‘conveyance’ as defined under the amendment to the Stamp Act made by the State of Andhra Pradesh where delivery of possession coupled with the agreement requires to be by registered document as a conveyance. The learned counsel for the petitioners, therefore, contends that even if there is any such endorsement and even if the same is established, the same is inadmissible in law, as the document is not registered. He, therefore, submits that the said stand on the part of the respondent cannot be looked into by the Court for the purpose of ascertaining of the manner in which the respondent has come into possession. 11. In any case, the lawful entitlement of the plaintiffs to institute the suit will have to be gone into in the suit. The agreement of sale and exchange of legal notice between the parties prior to the filing of the suit make an interesting reading. The reply notice issued on behalf of the respondent dated 21.06.2008 is, in fact, necessary to be noticed, particularly Para 7 thereof, which is extracted hereunder. “7 . That my client is ready and willing to perform his part of the contract, and he is having capacity to perform the same, but father of your client is not ready and willing to perform his part of contract. Under the said circumstances my client has no other option except to cancel the agreement of sale and demand refund of money of Rs.6,75,000/- paid to father of your clients under agreement of sale dated 29.03.2007 and under endorsements dated 30.05.2007, 18.08.2007, 24.08.2007 and 07.09.207 together with interest at the rate of 24% per annum. Till repayment of the money demanded supra my client is entitled to be in possession of the property under part performance of contract.” 12. It is evident therefrom that the respondent himself is not claiming any rights and in fact, cancelled the said agreement and seeking recovery of amount of Rs.6,75,000/- said to have been paid by him. When such is the stand taken by the respondent in reply notice, for the purpose of the present petition it is not open for him to fall back on the same agreement and claim that he is protected thereby and he is not liable to deposit any arrears of rent. During the course of hearing, learned counsel for the respondent submitted that the respondent has already filed a suit for specific performance of the agreement in O.S.No.146 of 2008 in November 2008. The rights claimed by the respondent, therefore, are subject matter of the said suit but for the purpose of the present petition paragraph 7 of the reply notice clearly shows that the respondent is not claiming any further rights on the basis of the said agreement of sale and has, in fact, cancelled the said agreement and seeking recovery of the part consideration paid from petitioners herein. In such a situation, therefore, it is not open for the respondent to fall back on the very same agreement and claim immunity from depositing the rents pending the suit. 13. In either situation, whether the agreement is true, enforceable or not and whether the said agreement is binding on the petitioners herein or not, the fact remains that the respondent is in possession of the property and enjoying, as such, without payment of rent to anybody. As per the petitioners, the rents were meant to take care of the minor petitioners and it is for that reason that the mother of the petitioners 1 and 2 has let out the property to the respondent. Keeping in mind, the objections raised by the respondent to the entitlement of the petitioners to deal with the property, though in the reply notice recovery of part consideration was sought for from them, the said aspect will have to be again gone into in the suit. Since the present suit for recovery of possession is said to be ripe for trial, I am also of the view that expeditious disposal of the said suit would serve the interests of justice. However, pending the suit there is no reason as to why the respondent should not be directed to deposit the arrears of rent. The dismissal of the petitioners’ application by the Court below under the impugned order is, therefore, wholly unjustified as the defence of the respondent with respect to the present suit for eviction is, prima facie, not sustainable. In any case, since the respondent is enjoying the property, there is no reason as to why he should not pay the charges for use and occupation of the premises in question. The revision petition, accordingly, deserves to be allowed and is accordingly allowed. I.A.No.1718 of 2008 before the Court below shall stand allowed as prayed for. The respondent shall deposit the rent at Rs.2,000/- per month from January 2008 onwards till the end of February 2010 within a period of three (3) months from today and shall continue to deposit the rent from March 2010 onwards on or before 10 of March and successively before 10 of every month in advance subject to final adjudication in the suit. The deposit of the aforesaid amount and the withdrawal thereof by the petitioners shall be subject to final orders in the suit. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 19, 2010 DSK [1] AIR 1981 SC 1881