Mrs. Philomena D''Souza vs Mr. John Janus Barreto

F.M. Reis, J.—Heard Shri Anthony D'' Silva, learned Counsel appearing for the Petitioner and Shri Mulgaonkar, learned Counsel appearing for the Respondent. Rule. Heard forthwith with the consent of the learned Counsel appearing for the respective parties. Learned Counsel appearing for the Respondent waives service.

The above Petition challenges an Order passed by the learned Civil Judge, Senior Division, at Mapusa, in Special Civil Suit no. 43/10/A, whereby an application filed by the Petitioner to deposit the licence fee during the pendency of the suit came to be dismissed.

Upon hearing the learned Counsel and on perusal of the records, I find that the learned Judge whilst passing the impugned Order has come to the conclusion that such claim of licence fee can be made by the Petitioner only after a Decree for eviction is passed in terms of Order 20 of the Civil Procedure Code. The learned Judge, whilst passing the impugned Order, failed to consider that such claim on the part of the Petitioner who claimed to be the licensors of the suit premises can be made under Order 15-A of the Civil Procedure Code. It is not in dispute that the suit filed by the Petitioner is for eviction of the suit premises and, consequently, prima facie, that the said application is to be considered under Order 15-A of the Civil Procedure Code. The Judgment of this Court relied upon by the learned Judge in the impugned Order reported in Mr. Gulamhusain Asgaraly Vahanvaty, Mr. Gulamabbas Asgaraly Vahanvaty, Mrs. Haseena Gulamhusain Vahanvaty and Mrs. Niloufer Galamabbas Vahanvaty Vs. Allahabd Bank, A Government of India Undertaking, , which is wrongly quoted as being reported in All Maharashtra Reporter is not at all applicable to the facts of the present case. The case therein was in connection with the claim for mesne profits after a Decree for eviction was passed and not in context of Order 15-A of the Civil Procedure Code.

Considering that the learned Judge has failed to consider such application in terms of the said provisions of the Civil Procedure Code, I find that the learned Judge has acted with material irregularity affecting its jurisdiction whilst passing the impugned Order which calls for interference by this Court under Article 227 of the Constitution of India.

Hence, the impugned Order dated 12.03.2012 is quashed and set aside. The learned Judge is directed to decide the application filed by the Petitioner dated 16.10.2010 afresh, after hearing the Respondents in accordance with law. All contentions of both the parties on merits are left open.

Rule is made absolute in the above terms. Petition stands disposed of accordingly.