1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. W.P.NO.5318 OF 2006. L.Rs. Of Motilal Prabhudayal Sharma ...vs.. Ramdas Bandopadhya ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Coram : C.L.PANGARKAR, J. Dated : 25th JUNE, 2009. 1. Heard Mr.V.S.Dhobe, learned counsel for the petitioner. 2. This writ petition challenges the orders passed by the Second Additional District Judge, Nagpur who confirmed the order passed by the Judge, Small Causes Court, Nagpur on a distress warrant application filed by the present respondent. 3. The present respondent had filed proceedings for issuing distress warrant against the 2 petitioner for recovery of rent. It was the contention of the respondent that the petitioner was in arrears of rent for a period of eleven months and he sought to recover the same by distress warrant. 4. The petitioner had resisted the said application on the ground that he had in fact remitted the rent to the respondent by money orders and the respondent has been consistently refusing to accept the rent. He submits that, therefore, in fact the learned judge should not have issued the direction to pay the rent and on failure to issue distress warrant. The order of the learned Small Causes judge has been confirmed by the first appellate court and those orders are challenged in this writ petition. 5. The learned counsel for the petitioner submits that the order passed by both the courts below are not correct, in as much as, the petitioner had remitted the rent to the respondent and same was refused. He submits that once respondent has 3 refused to accept the rent, he is not entitled to recover it by distress warrant proceedings. The submission cannot be accepted. Even though the respondent may have refused to accept the rent, the liability of the petitioner to pay the rent after the proceedings are filed in the court is not extinguished. He is still liable to pay the rent to the respondent in spite of the fact that the respondent may have refused. At the most the petitioner what could have done is to make request to the court to impose compensatory costs on the respondent for filing frivolous proceedings. It seems that such a prayer was never made either before the Small Causes Court or the appellate court. Both the courts have not awarded the costs. I do not find it proper at this stage to interfere in the said orders. Since the liability of the petitioner is not extinguished and admittedly rent has not been paid to the respondent, the orders cannot be said to be suffering from any infirmity or illegality. There is no substance in the writ petition. It is dismissed in limine with no order as to costs. 4 The respondent is at liberty to withdraw the amount deposited in this court. JUDGE. chute