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.894 of 2009 Between: Sri Veda Educational Academy, Educational Society, Visakhapatnam … Petitioner And: Potnuru Seetharam … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.894 of 2009 ORDER: This revision is directed against the order dated 11.10.2007 in IA No.970 of 2007 in OS No.182 of 2007 on the file of the IV Additional District Judge, Visakhapatnam, wherein the said application filed by the respondent herein under Order 15-A CPC seeking direction to the petitioner-defendant to pay arrears of rent of Rs.6,88,275/- at the rate of Rs.76,475/- for the period from October 2006 to June 2007 and continue to pay at the same rate before 10th of every succeeding month, was allowed. 2. Heard both sides. Perused the record. 3. The respondent herein filed suit for eviction of the petitioner from the plaint schedule premises and also for recovery of arrears of rent. According to the plaintiff, she is the owner of the suit property and the defendant entered into an agreement of lease dated 15.04.2003 and that the rent stipulated was Rs.76,425/- payable on or before 10th of every succeeding month and the defendant failed to pay any amount of rent from October 2006 onwards, till filing of the suit. The plaintiff got issued quit notice on 11.06.2007 which was received by the defendant on 13.06.2007 and tenancy was terminated with effect from 30.06.2007. As there was no reply from the defendant, the suit was filed for recovery of arrears of rent. The defendant filed a counter admitting the transaction of lease and contending that out of four floors comprised in the building, the defendant handed over two floors in April 2006 as the strength of the students has come down and made a request to the plaintiff to reduce monthly rent proportionately but the plaintiff has been evading to do so. The defendant further pleaded in the counter that he was ready to pay the arrears of rent in respect of the remaining two floors. He would further contend that the lease is for 10 years and the advance amount is still with the plaintiff and if the same is taken in to account, there would not be any arrears. The plaintiff filed a reply affidavit denying that the defendant handed over two floors or that there was any request from the defendant to reduce the rent proportionately and contending that the defendant is in occupation of all four floors. It was also denied that the plaintiff has taken any advance from the defendant. 4. The jural relationship between the parties is admitted. Quantum of rent at the rate of Rs.76,475/- is also not disputed. According to the petitioner-defendant, he has vacated and handed over possession of two floors in April 2006 and made a request to the plaintiff to reduce the rent proportionately for the other two floors retained by him and the plaintiff has been postponing the matter and therefore, he could not pay the rents thereafter. The plaintiff denies the same. A contentious issue has therefore arisen as to whether the defendant has vacated and handed over possession of two floors as alleged by him and whether the rent is liable to be reduced proportionately to that extent. The trial court in the impugned order observed that there was no dispute about the rent payable in the present case. The said observation is erroneous. The defendant has in fact raised a dispute regarding the quantum of rent payable from April 2006, as according to him, he has vacated and handed over possession of two floors of the building. 5. Order XV-A (2) CPC contemplates that before passing an order striking off the defence, the court shall serve a notice on the defendant 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 of an order striking off the defence. The trial Court proceeded to grant the relief on the ground that the defendant cannot unilaterally decide the rate of rent to his benefit. When the defendant has raised a dispute regarding the extent of the property in his possession and also regarding the quantum of rent payable there for, the said dispute has to be resolved before an order can be passed under Order XV- A CPC. It is not as though the defendant has admitted arrears of rent as claimed by the plaintiff and chose to contest the suit by filing written statement without depositing the said arrears. It is a case where there is a dispute regarding the quantum of arrears owing to the contention of the defendant that he vacated and handed over two floors of the building in April 2006, which is denied by the plaintiff. The petitioner-defendant has stated in the counter that he is ready to pay the rent for the two floors retained in his possession. 6. Learned counsel for the petitioner-defendant would submit that the petitioner has been regularly depositing the rent for the two floors in the name of the plaintiff in the bank. According to the defendant, originally the rent for two floors was Rs.35,000/- per month and the same was enhanced to Rs.54,581/- from November 2004 after another two floors were constructed and handed over to the defendant, that the rent was enhanced to Rs.62,758/- per month from March 2006 and that the defendant paid rents at the said rate till October 2006 by way of cheques and the rent for November 2006 was paid in cash, but in April 2006 itself he has redelivered the two floors to the plaintiff owing to shortage of students, but he continued to pay the rent at the rate of Rs.62,758/- till November 2006 pending consideration of his request for reduction of the rent proportionately and that subsequently after filing of the suit, he paid Rs.3,13,790/- by way of demand draft on 22.10.2007 towards half rent from December 2006 to September 2007 and he paid another sum of Rs.1,11,735/- on 23.01.2008 towards rent from October 2007 to December 2007 by way of demand draft and he paid Rs.76,539/- on 24.04.2008 towards rent for January 2008 to March 2008 by way of demand draft and he also paid a sum of Rs.31,379/- towards rent for the month of April 2008 by way of demand draft. The petitioner- defendant would further submit that even the remaining two floors were handed over to the plaintiff in October 2008 under delivery receipt dated 18.11.2008 and as such from October 2008, the defendant is not liable to pay any rents. According to him, he is liable to pay half of the rent for the two floors only for the months of May to October 2008. He also pleaded that he paid a sum of Rs.1,50,000/- by way of cheque dated 29.08.2003 and Rs.1,00,000/- by cheque dated 15.04.2004 and Rs.2,50,000/- by cheque dated 19.11.2003 towards advance and the same amounts are liable to be adjusted towards arrears of rent, if any. The defendant also filed copies of the statement of accounts on various banks showing remittance of advance amounts and the rents. 7. From the above it can be seen that according to the petitioner-defendant, he has previously vacated and handed over two floors of the building in April 2006 and the rent for the remaining two floors is liable to be proportionately reduced and he has been paying the rents for the remaining two floors, which is borne out by the bank statements and even the remaining two floors also he vacated in October 2008 under delivery receipt dated 18.11.2008 and that he was liable to pay the rent for the two floors only for a period of six months from May to October 2008 and if the same is adjusted against the advanced amounts lying with the plaintiff, there would not be any arrears at all. Various contentions raised by the defendant have to be necessarily considered by the trial court before deciding the disputed question as to the existence or otherwise of any arrears of rent. 8. In the circumstances, it is held that the impugned order is not sustainable and is accordingly set aside. The trial Court shall receive the written statement filed by the defendant and dispose of the matter on its own merits. 9. In the result, the revision petition is allowed accordingly. No order as to costs. _____________________ G.V.SEETHAPATHY, J Date: 19.07.2011 bss