Shaik Amjad v. Shri Mohammed Abdul Rahman

THE ITONOURABLE SMT. JUSTICE RENUKA YARA VIL NO b THE 25th DAY OF 2o26 Betureen: Shaik Amjad Shri Moham ned Abclul Rahman ORDER: ..Petitioner ...Respondent Heard Sri R-A. Achuthanand, learned counser for the petitioner and Sri Syed lliyas, learned counsel for the respondent Perused the record.

2. The civil Revision petition is filed by the petitioner herein/resp.ndent/defendant aggrieved by the order passed by the learned Principal District Judge, Narayanpet (for short .the Trial court) in LA.No.372 of 2024 in o.s.No.g of 2022, dated Lr-o3.2025, wherein, a petition fired by the respondent herein/petitioner/plaintiff under Order XV Rule 5 of CpC seeking striking off <lefence of the petitioner herein for failure to deposit .7 arrears and monthly rent has been allowed i.e. the petitioner's written statement and evidence were ordered to be struck off' Facts ofthe case:

3. The respondent filed suit for eviction, recovery of arrears of rent and damages against the petitioner herein' Respondent claimed to be the absolute owner of suit schedule property and having entered. into a rental agreement dated 17.to'2o17 with the petitioner for a fixed period of 11 months. During the said period of Rental Agreement, there was repeated default on the part of the petitioner in payment of rents. During the years 2Ol8 up to January 2024, the petitioner paid an alnount of Rs.10,13,500/- whereas the total amounts due were Rs.37,75,997 l-' After deducting the amounts paid by the petitioner, the total balance due was Rs.27 ,62,497 / -. The petitioner claimed to have paid Rs.13,oo,ooo/- to the GPA holder of the respondent, but the same is unrelated to the rents payable by the petitioner' The conduct of the petitioner constitutes willful default and amounts to intentional disregard for contractual obligations and therefore' the petition was filed to strike off defence' I ---v k j t t :3:

4. The pel.itioner pleaded that the suit was filed in the year 2022 and there \ ras no complaint about non-payment of rents. The rent agreed as [)er rental agreement was Rs.32,0OO/- per month. The respondent never claimed arrears of rent in the plaint as on

14.03.2022. No claim was made except for damages for use of occupation of the suit schedule property at Rs.1,0O,O0O/- per month. [n r:ase, the respondent made any claim for arrears of rent, the petitioner would have paid the same. The petitioner claims that a petition under Order XV-A cannot be filed for a period which is not covered in the plaint. When the suit was filed, the responden': was residing in Dubai and was represented by his GPA holder. When the GPA holder approached, the petitioner with a proposal lbr executing a fresh lease agreement, there was a demand for payment of Rs.13,OO,OO0/- towards advance rent. The petitioner had transferred Rs.13,OO,OOO/- to the account of GPA holder on 31.10.2018 towards advance rent which was to be adjusted [n the future. The new rental agreement was to be executed for a period of five years from December 2018 to November 2023. In spite of transferring Rs.13,00,OOOl- the petitioner continued to pay amounts to be adjusted in rents. The pttitioner disputed payment of only Rs.10,13,5oo /- out of total .43 dues of Rs.37,75,997 l-. In case, there was any shortage in payment of rent, according to the petitioner, the respondent ought to have filed an application claiming arrears of rent along with the suit itself. There was no such arrears due and therefore, the respondent claimed damages only. There is no rejoinder filed by the respondent disputing payment of Rs.13,OO,OOO/- towards advance rent. Further, it is pleaded that no application under Order XV-A of CPC c€rn be filed once the suit is posted for arguments. There is documentar5r evidence already recorded on behalf of the parties and therefore, the petition under Order XV-A of CPC is not maintainable. Further, it is pleaded that the respondent was living in Dubai and the petition was filed with his signature which is gross forgery. On the aforementioned grounds the respondent i.e. the revision petitioner sought dismissal of I-A-

5. The learned Trial Court observed that trial has commenced wherein the respondent examined PWs 1 to 3 and got marked Exs.Al to A4. In response, the petitioner got examined DWs 1 and 2 and got marked Exs.Bl to Bl7 and when the matter stood posted for arguments, the petition was filed. The learned Trial Court proceeded to examine Order XV Rule 5 of CPC coupled with the citation relied upon by the respondent in the case of Asharani \ I 7 5 Gupta v. Vineet Kumarr. Upon examining the version presented by both the parties, the learned Trial Court proceeded to hold that a suit for eviction was filed seeking eviction and payment of one year rent of Rs.3,84,000/-, arrears of rent from May, 2Ol9 to February, 2iO22 at Rs. 10,88,000 /- and. damages for unauthorised occupation of the premises from May 2Ol9 to Februar5r 2022 at Rs.32,OO,OOO/-. There was a totally an arnount of Rs.50,72,000/_ payable but the petitioner did not follow mandatory provision of order XV Rule 5 of cPC for payment o[ arrears of rent at or before first hearing of the suit and did not deposit monthly rent regularly within a wr:ek of its accrual throughout the pendency of the suit. It is held that there is default in payment of monthry rents and therefore, tee petition has been allowed. Grounds olf revision:

6. In grounds of revision, the petitioner pleaded that there is a false claim by the respondent about payment of Rs. 10, 13,500/_ out of Rs.3'l,75,992 /- and by December, 2024, there is an amount of Rs.27,6i1,,497/- payable and said claim is without any basis. When counter was liled by the petitioner in the Interlocutory I ZOZ2 Live Law (SC) 607 I \ ::6:: Application, the respondent's claim was disputed by filing a bank account statement. However, the Trial Court had struck off the defence of the petitioner. tt is pleaded that the order passed by the Trial court is contrarlr to the provisos of order xv-A of cPC and that when a matter is posted for arguments, there cannot be an application filed under order xvA of cPC. There are many States in which amendments have been made to the order XV of cPC' uttar Pradesh State amendment has been applied while passing the order and the sarne is not applicable to the state of Telangana' As per UP State amendment, the first date of hearing is defined under the enactment, whereas in Telangana State, it is filing of the written statement which is the first date of hearing, that too, a tenant is expected to pay undisputed arrears calculated up to first date of hearing into the court and should continue to deposit' The court has not determined, the rents due or payable after the petitioner filed bank statement showing payment of rents' The respondent had only filed unauthortzed' statement of arrears in the I.A under revision. The Trial court instead of computing the rents, directty gave a finding that the petitioner has not paid rents' There is failure to consider payment of Rs.13,OO,OOO/- towards advance rent to the GPA holder of the respondent. Subsequel! .!o t*, I 7 7 filing of the suit, the GPA was cancelled. However, there is a presumption that the agent acted on behalf of his principal and therefore, pir.yment of Rs. 13,00,000/- as per the bank statement clearly dem,rnstrates that Rs. I3,OO,OOO has been transferred to the accounl: of the agent to be payable to the principal. The affidavit filed by the respondent does not reveal how the amount of Rs.27,62,49U - is due. As per Order XV-A of CpC, whenever, there is a dispute as to arrears of rent, the Court cannot order deposit of arrears until the trial is completed and also the court cannot exercise pov/er to strike off defence. It is emphasized t,r'at trial has commenced and the petitioner had adduced his evidence and at that stage, defense cannot be struck off. The judgment in Asharani Gupta (supra) deals with the amendment made to CpC by the Statr: of Uttar Pradesh and the same is not applicable to Telangana fitate. As such, it is pleaded that the impugned order passed by the learned Trial Court in I.A.No.372 of 2024 in O.S.No.B of 2022 be liable to be set aside. Contentions of the petitioner: Learne<l counsel for petitioner submitted written arguments wit.h citations in the case of K. Zakira Shaik v. K. ,coupled \ ::8 Saleem Basha2, wherein the High Court of Andhra Pradesh at Hyderabad, held that only undisputed rents can be directed to be deposited in addition to monthly rents from time to time. Further, reliance is placed on the judgment of High Court of Andhra Pradesh at Amaravathi, in the case of Medikonda Venkateswara Rao v. Marapu Suresh Naidua, wherein it is held that a tenant who committed default is liable to deposit arrears of rent and monthly rent and when there is a defence set up with respect to tenancy i.e., when tenancy is not admitted applicabitity of Order XV-A of CPC does not arise.

8. The judgment in the case of Medikonda Venkateswara Rao (supra) is not applicable as in the present case the petitioner admitted to be a tenant, who entered into a rental agreement in the year 2Ol8 for a period of 11 months. Thereafter, the petitioner claims to have paid Rs.13,OO,O00/- as advance rent for entering into a rental agreement for a period of 5 years from 2Ol9 upto 2023. When there is admission about tenancy, there is no question of non-applicability of Order XV-A of CPC for seeking payment of monthly rents. 2 r,tRruu/ap/0391/2011 3 ulruu/Rp/Lozslzo24 \ \ I :9:

9. The petitioner also relied upon judgrnent in the case of salem Advocate Elar Association v. union of India+, wherein the Honble SuSrreme Court of India discussed about the scope of revision. A reference is made to Section 115 of Cpc, which deals with the porver of revision of High Court, which is to be exercised by varying or reversing any order made in the course of a suit or proceeding :rnd it would have finally disposed of the suit or other proceedings.

10. Further reliance is placed on the case of shatini shyam shetty v. Rajendra shankar PatiIS, wherein the Honble supreme court held that supervisory jurisdiction under Article 22T of Constitution has to be exercised for keeping the subordinate courts within the bounds of their jurisdiction. when a subordinate' Q6q1t assumes jurisdiction, which it does not have or failed to e>iercise jurisdiction, it does have or the jurisdiction though available, is being exercised in a matter not permitted by lau, and thr:re is resultant failure of justice. In addition, a High Court can interfere in the exercise of its power of superintendence *'12005; 6 scc 344 s (zoro) B scc 329 \ \ ::10:: when there has been a patent perversity in the order of Tribunals and Courts subordinate to it. 1 1. Further, in the case of Radhey Shyam v. Chhabi Nath6, Honble Supreme Court held that all the Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227 of Constitution of India. L2. In the case of M.B.Chander v. Balakrishan Rao Charitable Trust?, High Court of Judicature at Hyderabad held that a High Court can exercise power under Article 227 of the Constitution when the inferior Court assumes jurisdiction erroneously in exercise of power, when refused to exercise jurisdiction, when found an error of law apparent on the face of record, violated principles of natural justice, arbitrary or capricious exercise of authority or discretion, arriving at a finding which is perverse or based on no material evidence, a patent or flagrant elTor in procedure which result in a manifest injustice.

13. When the arguments of the learned counsel for petitioner are considered, the judgments which are cited regarding the \\ maintainability of revision or the scope of revision are not relevant 6 (zors) s scc 423 ' tulRt\ u/Rp/0686/zo 1 6 I :: l1!: as there wils no challenge to maintainability of the present revision by the respondent. What needs to be examined is the maintainability of a petition under Order XV-A of CPC after the recording of evidence has been completed and when the matter stood posterl for arguments, apart from the fact that there is a dispute aborrt the arrears of rents payable. Contentions of the resoondent:

14. Learne<l counsel for the respondent submitted that there was default in ,cayment of rents by the petitioner and therefore, a petition under Order XV Rule 5 of CPC has been filed. It is submitted t.hat whenever a suit for eviction is filed and summons are receivecl b5, the tenant, said tenant is under obligation to pay the arrears of rent on the date of filing of the written statement and continue to pay monthly rent. In the instant case, there is failure on the part of the petitioner to pay as per statute and therefore, er petition was filed for striking of defence on account of failure to pay the arrears of rents as well as monthly rents.

15. [n the written arguments, learned counsel for the respondent submitted that the petitioner raised a false plea of payment of Rs.13,O0,0OO/- to the GPA holder of the respondent by name ilI t i t2: Faisal. The GPA document is not filed, but there is a claim that the GPA exists. There is attempt at convincing the Court that there is GPA on the basis of admission made by the respondent in his bross-examination. The fact is that the said Faisal is not the GPA holder of the respondent and nothing prevented the petitioner from paying amounts directly into the account of the respondent, instead of account of the GPA holder. Further, the argument with regard to payment of advance rent which is to be adjudicated is unreasonable as no one would pay monthly rent when advance rent is paid. There is a claim for enhancement of rent at 1O%o ever yetr, but the petitioner calculated the arrears at old rate of Rs.32,000/- only.

16. Respondent in the written argu.ments contended that there is no law which bars filing of petition under Order XV-A of CPC at the time of arguments. The respondent denied application of amendment made to the CPC by the Uttar Pradesh State for Order XV-A of CPC. Further, it is subrnitted that the facts of the case in Ashrani Gupta (supra), are similar to the facts of the present case. It is emphasized that no reference is made to the Uttar Pradesh State amendment while passing the impugned order. In fact, the amendment made by the Telangana State is more \ \ r- I i I : 13 stringent. There is an attempt by the petitioner to confuse the Court abotrt the timing of payment of arrears which is at the time of filing of the written statement. It is the duty of the tenant to deposit thr: rents before they are claimed by the landlord. The petitioner is due to pay the arrears with loo/o yearly hike which amounts trt Rs.27,62,497 /-.

17. [n the written arguments, reference is made to the judgment of the High court of relangana and Andhra pradesh at Hyderabacl, in the case of Ramesh charities v. R. Ratna Sudhas, wherein ttLere is a discussion about the insertion of Order XV-A of CPC for ttLe purpose of directing the tenant to deposit amount on account oi arrears upto the date of the order, for deposit of rent for every r;ucceeding month and for striking of defence in case of failure of llayment of arrears and monthly rents.

18. There is no dispute about availability of order xv-A of cpc for seekirrg deposit of arrears of rent. However, the same is subject to condition that such arrears should be undisputed failing wh.ich there has to be an enquiry and order has to be passed b5' the court about the amount to be deposited towards I z}tq LawSuir(Hyd)880 i214ri arrears and amount of monthly rent. In the instant case, no petition was filed under Order XV-A seeking direction to the tenant to deposit rent, rather a petition under Order XV Rule 5 was directly filed for striking of defence. Therefore, the judgment in the case of Ramesh Charities (supra) is not applicable to the facts of the present case. Findinqs of the Court:

19. The peculiar fact circumstances of this case show that a suit for eviction, recovery of possession, arrears and damages was filed in the year 2022 and the suit proceeded up to the stage of arguments i.e. the petitioner herein filed his written statement followed by framing of issues and recording of the plaintiffs and defendant's evidence. Thereafter, the matter was posted for arguments. At that stage, the respondent filed t.A No.372 of 2024 to strike off defence of the petitioner herein. At the outset, the petition ought not to have been registered for the simple reason that the evid.ence of the petitioner was already recorded. The question of striking of defence arises when the suit is at the stage of either commencement of evidence or the evidence of plaintiff alone has been recorded. In such an instance, firstly there has to 15 be a petition filed to determine the €uTears of rent payable and an order has to be passed for deposit of arrears of rent within a stipulated tirne. When there is failure on the part of the tenant to pay such arrears determined then additional petition under Order XV-A Rule 5 can be filed to strike off defence.

20. In the c:ase of Mahboob v. Mohammed Hussains, the High Court of Allahabad held as follows: "...Tnre, it is that the trial court held that the defence was tiable to tre struck out but that finding was not reached before oral evide:oce w?S recorded and once the trial court permitted the defenCant to lead oral evidence also on the point it was the duty of the trial court to decide all the issues on merits by consideri.:rg not only the evidence adduced by the plaintiff put also docurmentary and oral evidence adduced by the defendant in the carse. The impugned judgments of the courts below thus suffer from manifest error of law resulting in manifest injustice. They are, therefore, liable to be quashed."

21. Further:, in the case of Ram Kumar v. Special Additional District Judge, Faizabadro, the High Court of Allahabad held as follows: "4. The li. C.C. Suit No. 288 of 1972 was filed for ejectment of the tenant and flor damages. Any prayer for arrears of rent was not mac.e in that suit. Therefore, it cannot be said that the provisions of Orcler XV, Rule 5, C.P.C. were strictly applicable. Then thr: Iandlord had not raised this plea at an earlier staqe. e wtRtrtu/up/059 7/ 1983 t',tRtrt u/up/0999/ 1986 l6z The evidence of the parties was concluded in that case and the amendment sought at the stage of revision which was pertaining to some ladder, etc. and it had nothing to do with the arrears of rent. The case was remanded and the Trial court had. to decide the case afresh on the basis of the evidence which was already on record. In view of the principle of law laid down in the case of Mahboob alias chhalla v. Mohd. Husain and others (supra) there was no stage for the landlord to raise the plea of striking, off the defence under order XV, Rule 5, c.P.c. nor the learned lower court was justified in striking ofi the defence at that stage. Moreover, if the tenant was in a position to explain for non-compliance of the provisions of order XV, Rule s, c.p.c. and if he complied with tire provisions subsequently after explaining for th; same, the discretion under order XV, Rule s, c.p.c. shourd have been exercised with caution and after giving satisfactory reasons for the same.,,

22. In the instant case, firstly there was no petition filed under order xv-A for a direction to the petitioner to pay arrears of rent. There was no determination of actual rents payable. An order can be passed when the arrears of rent are undisputed. when there is a dispute about the quantum of rents due and payable, the course to be followed is to lead evidence and after a full-fledged triar, the trial court can, along with the relief of eviction, grant relief of payment of arrears of rent. when there is no petition filed for determining the rents payabre, there can be no question of non_ compliance of a Court order or striking of defence. There is a total failure in appreciation of the stage of the suit for striking of defence- when the suit is still at the stage of plaintiffs evidence, t I \ I :zlfzz the petition for deposit of arrears of rent can be filed and when there is nor: -compliance the defence can be struck off and at that stage the tenant would not be allowed to record his evidence and his written statement also will be struck off. This course cannot be taken up when the evidence of both the parties is recorded'

23. Apart from the above issue, there is a dispute about the quantum of arrears of rent, on one hand the respondent is claiming ar-rears of rent to a tune of Rs.27,62,497 /-, whereas the petitioner is claiming that he paid advance rent of Rs.13,00,0oo/- to the GPA holder and therefore, there is a dispute about the actual amount of arrears of rent due. Therefore, the trial court ought not to have proceeded to direct payment of arrears as claimed b.r the respondent in his affidavit. Since the evidence was already r,:corded, the trial court ought to have proceeded to determine the actual rents payable by giving a finding about Rs.13,OO,0OO/- u,hich is paid to GPA holder, as to whether said amount vras to be calculated towards advance rent or not' Without giving a flnding about Rs.13,OO,OOO/- paid by the petitioner to the GPA hokler of the respondent, directing the petitioner to pay arrears of Rs.27,62,497 l- is clearly at error. Such an order which ::18 r is perverse cannot be sustained. On account of the foregoing discussion, the impugned order is liable to be set aside.

24. In the result, the Civil Revision Petition is allowed by setting aside the impugned order dated 11.03.2025 in I.A-No.372 of 2024 in O.S.No.S of 2022 on the file of the learned Principal District Judge at Narayanpet. There shall be no order as to costs. Miscellaneous applications, if a.ny, pending shall stand closed. //TRUE COPY/ SD/- K.AMMAJI DEPUW REGISTRAR 6 SECTION OFFICER To, 1 2 3 4 The Principal District Judge, Narayanpet. One CC to Sri R A Achuthanand, Advocate [OPUC] One CC to Sri Syed lliyas, Advocate [OPUC] Two CD Copies HIGH COI.'RT DATED i 2510212026 ORDER CRP.No.929 of 2025 t * C,() { "). Q 1 1i 7 lr'.1 ;r[b 2 * C ALLOWING THE CRP K3 apl>e'