IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE NINETEENTH (19TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5247 of 2010 Between: Shaik Fakruddin … Petitioner And: Mrs. Bina Agarwal … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.5247 of 2010 ORDER: This revision is directed against the order dated 12.08.2010 in IA No.635 of 2010 in OS No.81 of 2010 on the file of the III Additional Chief Judge, City Civil Courts, Hyderabad, wherein the said application filed by the respondent herein-plaintiff under Order 15(5)(a) CPC seeking direction to the petitioner-defendant to pay arrears of rent from 01.03.2009 to 09.01.2010 in a sum of Rs.4,55,527/- at the rate of Rs.44,226/- per month, was allowed. 2. Heard both sides. Perused the record. 3. The respondent herein filed suit against the petitioner for recovery of possession of Flat No.301, H.No.8-2-350/350A, A.K. Enclave, Road No.3, Banjara Hills, Hyderabad. According to the respondent, she is the absolute owner of the said flat and she let out the same to the petitioner under lease agreement dated 28.05.2008 on a monthly rent of Rs.44,226/- i.e., Rs.26,536/- towards rent and Rs.17,690/- towards hire charges for amenities payable before 10th of every succeeding month. The petitioner herein paid Rs.1,32,678/- towards interest free deposit refundable on the date of vacating the premises. The rent was agreed to be enhanced at 5% every year from 01.05.2009. As there was willful default in payment and hire charges, the plaintiff got issued legal notice dated 01.11.2009. As there was no response, the plaintiff issued termination notice dated 15.12.2009 calling upon the defendant to vacate the premises within 15 days and pay arrears of rent in a sum of Rs.3,97,934/- till the end of November 2009. As the defendant did not give any reply in spite of receiving notice, the suit was filed. The petitioner herein-defendant filed a written statement contending that the lease agreement is created for the purpose of suit and even other wise, the said document is inadmissible. The petitioner further disputed the jural relationship between the parties. According to the defendant, he agreed to purchase the flat and paid amounts to the plaintiff’s husband and subsequently, he came to know that neither the plaintiff nor her husband are having any rights in the property. During the enquiry before the trial court, Exs.P.1 to P.8 were marked on behalf of the plaintiff. The trial court observed in the impugned order that as seen from the rival contentions, of course, the defendant denied the relationship of landlord and tenant, but however granted relief on the ground that the defendant has admittedly paid an amount of Rs.44,226/- to the plaintiff for one month and subsequently, from March 2009 he failed to pay and he has not stated as to how he came in to possession of the flat, when admittedly, he is not the owner. Thus, virtually drawing an inference as to the existence of jural relationship, the trial Court directed the defendant to deposit arrears of rent in a sum of Rs.4,55,527/- and also continue to pay at the rate of Rs.44,226/- per month. 4. Order XV-A (not Order 15(5)(a) as mentioned in the application and also in the impugned order) CPC contemplates striking off defence and states as follows: XV-A(1) CPC: ‘In any suit by a lessor for eviction of a lessee or for the recovery of rent and future and mensem 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 there under continue to deposit in each succeeding month the rent or licence fee claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit. In the event of any default in making the deposit, as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.’ 5. As seen from the above provision, the same can be invoked in a suit by lessor or the licensor against the lessee or licensee as the case may be, for eviction. The existence of such jural relationship between the parties is therefore a condition precedent before the provision can be invoked. In the present case, the jural relationship of landlord and tenant pleaded by the plaintiff is specifically refuted by the defendant. According to the defendant, he intended to purchase the flat and in that connection he paid some amounts to the plaintiff’s husband and subsequently he came to know that neither the plaintiff nor her husband has any rights in the property and therefore, he stopped making further payments. Thus, according to him, the amounts paid were towards rent. The plaintiff seeks to rely upon the lease deed said to have been executed by the defendant to establish jural relationship. The defendant denies the genuineness of the said document and also the contents. Even otherwise, the same is inadmissible in evidence for want of stamp duty and registration. Thus, the pleadings would disclose that contentious issues have been raised even with regard to the very existence of jural relationship and the execution of the lease deed. It is not a case, where the tenancy is admitted and there are arrears of rent. In fact, the impugned order also notes that the defendant denied the relationship of landlord and tenant. Simply because, the defendant did not offer any explanation as to how he came into possession of the flat, when admittedly, he is not the owner thereof, no inference of tenancy can be drawn, that too, for the purpose of invoking the provisions of Order XV-A CPC. The payment of certain amounts by the defendant to the plaintiff does not also establish the jural relationship. When the disputed facts are required to be established on evidence during the course of trial pertaining to the alleged tenancy, lease agreement, quantum of rent etc. resort to order XV-A CPC is unwarranted. The contentious issues arising out of the pleadings of both parties are to be considered at the appropriate stage during the course of trial. In the absence of admitted jural relationship of landlord and tenant between the parties, the question of giving direction to deposit rents under Order XV-A CPC does not arise. The impugned order is therefore not sustainable and is accordingly set aside. 6. In the result, the civil revision petition is allowed. No order as to costs. _____________________ G.V.SEETHAPATHY, J Date: 19.07.2011 bss