1 WP 8804.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8804 OF 2011 1. Nandkumar S/o Padmakar Joshi Age : 47 Years, Occ. Business, R/o : Plot No. 12, Swami Narayan Nagar, Taroda (Kh.), Purna Road, Nanded. 2. Prof. Sharad S/o Digambar Joshi Age : 65 Years, Occ. Pensioner R/o : Ramanandnagar, Nanded .... PETITIONERS V E R S U S 1. Jayant S/o Gopal Kurtadikar Age : 56 Yrs., Occ. Lawyer, R/o : Chikalwadi Corner, Nanded. 2. Sow. Alka W/o Jayant Kurtadikar Age : 50 Yrs., Occ. Lawyer, R/o : Chikalwadi Corner, Nanded. .... RESPONDENTS Mr. V.J.Dixit, Sr. Counsel instructed by Mr. A.N. Nagargoje, Advocate for the petitioners. Mr. A.M.Mukhedkar, Advocate for Resp. No.1 & 2. 2 WP 8804.2011 - [ J ] CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 23/11/2011. ORAL JUDGMENT : 1. Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. The present respondents have filed Suit for eviction and for recovery of arrears of rent. During the pendency of the Suit, the present petitioners/original defendants filed an application [ Exh. 50 ] seeking permission to deposit the rent @ Rs. 920/- per month. Thereafter, the present respondents/original plaintiffs filed an application seeking directions against the petitioners to deposit arrears of Rs. 1,43,803/- and monthly rent of Rs. 2785/- regularly. The trial Court vide its Order dated 07/10/2011 rejected the application [ Exh. 50 ] filed by the petitioners and allowed the application [ Exh. 57 ] filed by the present respondents. Aggrieved thereby, the present Writ Petition is filed. 3. Mr. V.J.Dixit, the learned Sr. Counsel for the petitioners submits that the agreed rent fixed was @ Rs. 920/- per month. An agreement to that effect is also on record, which shows that the agreed rent was Rs. 920/- per month. The learned Sr. Counsel further contends 3 WP 8804.2011 - [ J ] that Order 15-A of the Code of Civil Procedure [ For short, ‘ the Code ’ ] would be applicable only in a case the agreed rent is admitted by both the parties. The plaintiffs are claiming rent @ Rs. 2785/- per month, whereas the respondents are claiming the rent to be Rs. 920/- per month. When there is no consensus between the parties regarding the rate of rent, then Order 15-A of the Code would not be applicable. 4. Mr. Mukhedkar, the learned counsel for the respondents/original plaintiffs submits that there are voluminous documents on record to show that the rent was enhanced to Rs. 2785/- per month by agreement between the parties. In the original rent receipt itself, it was stated that for initial period, the rent would be Rs. 800/- and after the period of two ( 2 ) years, the rent would be Rs. 1,000/- per month for further three ( 3 ) years. This shows that the rent was being increased from time to time. The rent receipts on record also substantiate this fact. The learned counsel further relies on one affidavit given by one of the petitioners to state that the rent as agreed between the parties was Rs. 2785/- per month. The Court has prima facie taken into consideration all these aspects and has rightly passed the order directing the petitioner to deposit the rent @ Rs. 2785/- per month. The learned counsel submits that 31 documents were filed on record to substantiate the contention of the respondents. The learned counsel relies on the Judgment of the 4 WP 8804.2011 - [ J ] learned Single Judge of this Court in the case of Anantbhushan S/o Murlidhar Kanade and another V/s Vikas S/o Kashinath Navandar reported in 2005 ( 4 ) Mh.L.J. - 583, so also another Judgment of the learned Single Judge of this Court in the case of Bharat Petroleum Corporation Ltd. V/s Thakorbhai Ranchhodji Desai and others reported in 2003 ( 3 ) - 617 and another Judgment of the learned Single Judge of this Court in the case of Shantaram V/s Smt. Claradas Lourds decided by Bombay High Court on 12/07/1996 in Civil Revision Application No. 866 of 1991. 5. The provisions of Order 15- A of the Code are discretionary in nature. Order 15-A of the Code reads as under : “ (1 ) In any Suit by a lessor or a licensor against a lessee or a license, 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 order ( with such time as the Court may fi ) 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 5 WP 8804.2011 - [ J ] 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. ( 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. ( 3 ) The amount deposited under this rule shall be paid to the plaintiff lessor or licensor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it shall not also be treated as a waiver of notice of termination. Explanation – The Suit for eviction shall include suit for mandatory injunction seeking removal of licensee from the premises for the purpose of this rule. ” 6. From the perusal of the said provisions of Order 15-A of the 6 WP 8804.2011 - [ J ] Code, it is manifest that when a Suit is filed for eviction, with or without arrears of rent, then in such circumstances, the defendant shall deposit such amount as the Court may direct on account of arrears up to the date of the Order and thereafter continue to deposit in each succeeding month the rent as the Court may direct. If the rent is agreed, then in such circumstances, there is no question of exercise of discretion of Court to direct the parties in that manner. In case, where there is dispute about the agreed rent, in such circumstances, the tenant can be directed to pay rent as the Court would deem just and proper. In the present case, the plaintiffs claim the rent to be Rs. 2785/- per month, whereas the defendants claim the rent to be Rs. 920/- per month. Giving any finding at this stage on the rate of rent per month would be pre-judging the issue. The parties have yet to adduce the evidence and prove their respective case. In view of that, it may not be appropriate to conclude at this stage the quantum of rent and the increases that were made time to time as is claimed by the plaintiffs and denied by the defendants. 7. However, the relations between the parties is not disputed. The rent was agreed to be paid, is also not disputed. It is also a fact that the commercial shops are leased. In such circumstances, though the initial agreement made was of Rs. 800/- per month and which according to the petitioners, the rent is Rs. 920/- per month, the equities will have to be 7 WP 8804.2011 - [ J ] adjusted and a reasonable sum is required to be directed to be paid by the petitioners/tenants. In view of the above, interest of justice would be sub- served if the petitioners are directed to deposit the amount of Rs. 1,00,000/- [ Rupees One Lac only ] towards the arrears of rent and Rs. 2,000/- per month regularly and the said deposit shall be without prejudice to the rights and contentions of either parties. 8. In the result, I pass the following order : The petitioners shall deposit Rs. 1,00,000/- [ Rupees One Lac only ] towards the arrears of rent by 15/12/2011 and shall deposit every month Rs. 2,000/- [ Rupees Two Thousand only ] on or before 10th of each month. In light of the above, the order impugned is set aside and modified as referred above. 9. Rule made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8804.2011 - [ J ]