Prem Lata vs Raghubir Rai and Others

S. Muralidhar, J.

IA No. 22751 of 2012 (by Plaintiff u/O. XVA CPC) and IA 13496 of 2011 (by Plaintiff u/O. XXXVII R. 1, 2, 4 and 5 CPC)

This Court has perused the order dated 18th November 2013 of the Division Bench in FAO (OS) No. 519 of 2013 filed by Defendant No. 1,

Raghubir Rai against the order dated 19th September 2013 passed by this Court in IA No. 22751 of 2012 in CS (OS) No. 1698 of 2011. The

Division Bench (DB) has, by the said order, observed that the order dated 19th September 2013 passed by this Court was not under Order XVA

of the Code of Civil Procedure, 1908 (CPC) but under Order XXXIX Rule 10 CPC. After noting the submission of counsel for Defendant No.

1/Appellant therein that this Court could not have directed Defendant No. 1 to deposit a sum of Rs. 1 lakh per month in terms of Order XXXIX

Rule 10 CPC for the premises in his possession, the DB set aside the order dated 19th September 2013 and remanded the matter to this Court

..for considering the application of the respondent under Order XVA CPC on merits"". The DB further directed that in the meanwhile, arrears

calculated at Rs. 1000/- per month should be deposited within ten days and further deposits at the same rate should be made every month, subject

to any order by this Court.

As a result of the above order, this Court has again heard the counsel for the parties in IA 22751 of 2012 under Order XVA CPC on merits.

The Court has also heard submissions in IA 13496 of 2011 under Order XXXVIII and Rules 1, 2, 4 and 5 CPC.

The background facts have been set out in two previous orders dated 29th November 2012 and 19th September 2013 of this Court They have

also been noticed in the order dated 18th November 2013 of the DB. They are, therefore, not being repeated.

Pursuant to the order dated 18th November 2013 of the DB, Defendant No. 1 has deposited a sum of Rs. 68,000 in this Court. Mr. Ashok

Gurnani, learned counsel for the Plaintiff, states that the Plaintiff, at this juncture, does not wish to withdraw the said. Accordingly, the sum

deposited, and any sum which may hereafter be deposited, are directed to be kept in a fixed deposit initially for a period of one year and be kept

renewed during the pendency of the suit.

Order XVA CPC as applicable in Delhi was introduced by an amendment with effect from 14th November 2008. It reads as under:

Striking off defence in a suit by a lessor

1) In any suit by a owner/lessor for eviction of an unauthorized occupant/lessee or for the recovery of rent 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 the order (within such time as the court may

fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to

deposit such amount till the decision of the suit unless otherwise directed.

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.

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 owner/lessor or his Advocate and the receipt of such amount shall not have the

effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.

Mr. Gumani submitted that the word ''rent'' in the above provision is not qualified by the word ''admitted'' and is, therefore, different from the

wording of Order XXXIX Rule 10 CPC which envisages payment of an admitted amount. Relying on the decisions in Yash Ahuja v. Medical

Council of India Relying on the decisions in Yash Ahuja and Others Vs. Medical Council of India and Others, and State of Gujarat and Another

Vs. Hon''ble Mr. Justice R.A. Mehta (Retd.) and Others, he submitted that the Court should adopt a purposive construction of the word ''rent'' so

that the legislative object of Order XVA CPC is furthered. He also relied upon the decisions in Novartis AG Vs. Union of India (UOI) and

Others, and Gursahai Saigal Vs. Commissioner of Income Tax, Punjab, to urge that the interpretation of a statute should be such as to make it

workable, He referred to the decisions in Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Ltd., , State of Maharashtra Vs. Bharat Shanti Lal

Shah and Others, and Dharmendra Kirthal Vs. State of U.P. and Another, Relying on the decision of this Court in Pritam Dass Vs. Jiya Rani, V,

he submitted that in the context of Section 15(1) of Delhi Rent Control Act, 1958 (''DRCA'') the Full Bench of this Court had observed that it was

open to the Rent Controller to pass an order u/s 15(1) DRCA on a prima facie view of the evidence even where the tenant denies the existence of

a tenancy. He, therefore, pleaded that the word ''rent'' in Order XVA CPC should be realistically interpreted in that background for the purpose

for which the provision was introduced.

Mr. Gurnani submitted that since this was at an interlocutory stage, it was open for the Court to fix a reasonable rent to be deposited by

Defendant No. 1 pending final determination. He added that the word ''mesne profits'' occurring in Order XVA CPC was not limited by any

requirement of an admitted amount. He pointed out that in IA 13496 of 2011 filed under Order XXXVIII Rules 1, 2, 4 and 5 CPC, the Plaintiff

had prayed for mesne profits in the sum of Rs. 4 lakhs per month and that this may be treated as a prayer under Order XVA CPC as well. He

further submitted that whatever sum that the Defendant No. 1 may be required to deposit, will not be withdrawn by the Plaintiff/Applicant and may

be ordered to be kept in a fixed deposit.

Mr. Mayank M. Mukherjee, learned counsel appearing for the Defendants, on the other hand, submitted that although the Order XVA CPC

applied to suits for eviction of an unauthorised occupant/lessee or for the recovery of the rent or future mesne profits, it envisaged the deposit by

the tenant of the admitted rent and nothing else. He relied upon the decisions in Bharat Petroleum Corporation Limited, A Government Company

Vs. Mr. Thakorbhai Ranchhodji Desai, Mr. Dinkarrai Desai and Desai Auto Services, V 1985 Law Suit (Bom) 37 and a decision dated 2nd

March 2012 of this Court in CM(M) 257 of 2012 [Chandra Prabha Saraff v. Parvez Ahmed]. He submitted that the main prayer in the suit was

not for mesne profits but for damages. Therefore, the question of awarding mesne profits at the interlocutory stage did not arise. Further, since IA

13496 of 2011 was under Order XXXVIII, the question of awarding mesne profits under that provision did not arise.

The above submissions have been considered. In the first place, it requires to be observed that the Order XVA CPC has been titled ""Striking

off defence in a suit by a lessor"". It is, therefore, a provision intended to benefit the lessor. The object is to mitigate the hardship to the landlord on

account of long pendency of an eviction suit, during which the lessor should not be deprived of the rent payable by the lessee or the future mesne

profits that might accrue. The omission of any reference to an ''admitted'' rent is deliberate. It accounts for the possibility that the market rent,

during the pendency of the litigation, might be much higher than the ''admitted rent. It therefore gives discretion to the Court to require the tenant to

pay rent commensurate with the market rent or, in any event, higher than the admitted rent. While the word ''rent'' is relatable to the amount

payable by a lessee, the provision also talks of an ''unauthorised occupant''. On termination of the lease, the lessee would become an unauthorised

occupant. In such case, the amount directed to be deposited by such unauthorised occupant, for use and occupation, cannot be termed as ''rent''.

This explains the use of the term ''such amount'' occurring in the provision.

The provision states that apart from the arrears, the Defendant can be required to continue to deposit ""in each succeeding month the rent

claimed in the suit as the Court may direct"". If Order XVA Rule 1 CPC had stopped here, then it is possible to contend, as has been done by the

learned counsel for the Defendants, (sic) the provision envisages deposit only of arrears of rent and nothing else. However, a further sentence in

Order XVA Rule 1 CPC states ""the Defendants shall continue to deposit such amount till the decision of the suit unless otherwise directed"". When

this sentence read with the previous sentence in Order XVA Rule 1 CPC, and the object of the provision is kept in mind, it is possible to interpret

the term ''such amount'' as not being limited to an ''admitted'' amount of ''rent''.

The other expression that Order XVA CPC uses is ''mesne profits''. It is possible to interpret the word ''such amount'' as including some

element of mesne profits determined tentatively by the Court in exercise of its discretion. This is evident from the words ""deposit such amount as

the court may direct or on account of arrears"". Any deposit made by the Defendant under this provision would obviously be subject to final orders

passed by the Court.

The decisions cited by the counsel for the Defendants do not address the issue that arises for consideration here. In Bharat Petroleum

Corporation v. Thakorbhai Ranchodji Desai, an order had been passed by the Small Causes Court at Mumbai requiring deposit of rent. If the

order was under Order XVA CPC, it was not an appealable order. If it was under Order XXXIX Rule 10 CPC, it would still not be appealable.

Therefore, there was no occasion for the High Court in the said case to interpret the expressions ''rent'' or ''mesne profits'' and ''such an amount''

occurring in Order XVA CPC. In Sangeeta Prints v. Hemal Prints, the question was whether in the absence of a special provision under the

Presidency Small Cause Courts Act, 1882, the Small Causes Court at Bombay could have directed deposit of rent. The decision in Chandra

Prabha Saraff v. Parvez Ahmed also did not deal with the issues that arise in the present case.

In IA No. 22751 of 2012, which is both under Order XXXIX Rule 10 CPC and Order XVA CPC, the Plaintiff has prayed for a deposit of

rent at the rate of Rs. 3 lakhs per month and future damages at the rate of Rs. 4 lakhs per month or at any other rate that the Court may determine.

Although IA 13496 of 2011 is captioned as being under Order XXXVIII, it is in effect an application praying for a direction to the Defendants to

deposit a sum of Rs. 4 lakhs per month as ""damages/mesne profits/for use and occupation of the suit property"". Therefore, it cannot be said that

there is no prayer for mesne profits. The Plaintiff has also placed on record copies of the lease deeds of commercial properties in the area to

substantiate the Plaintiff''s plea that the prevalent market rent is more than Rs. 3 lakhs per month in the area.

In reply to both these applications, it is stated by the Defendants that the papers relating to the residential properties of the Defendants at 12,

Malikpur, Model Town-I, Delhi-110009 are in the possession of the Plaintiff and that it is a sufficient security. It is only contended that the Plaintiff

cannot be granted relief ""based upon a disputed rent and a liability which has not been admitted by the Defendants"".

As already observed, the word ''rent'' in Order XVA CPC is not limited to the ''admitted'' rent. In any event, it also envisages the Court

determining an ''amount'' payable towards either rent or future mesne profits. In the present case, after the termination of the tenancy, the

Defendants continue to occupy the commercial property. The property, in which where they are running a restaurant, is located in a busy market

area. The Defendants have not countered the documents placed on record by the Plaintiff to show that the current market rent for commercial

property of a similar size in the area is more than Rs. 3 lakhs per month. The mere fact that the Plaintiff may have the title documents of the

residential property of the Defendants cannot be said to constitute sufficient security for the purposes of Order XVA CPC. The object of this

provision is to provide the landlord with some ''amount'' for use and occupation of the property by the Defendant during the pendency of the

litigation. Keeping these factors in view, the Court is of the opinion that pending the final decision in the suit, the Defendants should deposit towards

use and occupation charges/falling within the meaning of the expression ''such amount'' in Order XVA CPC, a sum of Rs. 1 lakh per month.

The Court accordingly directs the Defendants to deposit in Court an amount of Rs. 1 lakh per month payable with effect from the date of filing

of the suit, i.e., 14th July 2011. The arrears of such amount till the date of this order, after adjusting the sum of Rs. 68,000 already deposited, will

be deposited within eight weeks from today. The current deposit on a monthly basis will be made before the 10th of each month beginning from

December 2013.

It is clarified that this order is without prejudice to the rights and contentions of the parties and subject to the final determination by the Court.

Taking on record the statement made of the learned counsel for the Plaintiff that he does not wish to withdraw the amounts directed to be

deposited, it is directed that the amounts deposited will be kept by the Registry in fixed deposits initially for a period of one year and be kept

renewed during the pendency of the suit.

Both applications are kept pending for further directions in the event of default in the Defendants in complying with the above directions in

terms of Order XVA CPC. List on 15th April 2014.