The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.366 OF 2023 Santanu Kumar Bebarta …. Petitioner Mr. Amit Prasad Bose, Advocate Kishore Kumar Samantaray …. Opp. Party -versus-
Legal Reasoning
Mr. Swarup Kumar Pattanaik, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.07.2023 4. 1. This matter is taken up through hybrid mode. 2. Order dated 24th February, 2023 (Annexure-1) passed by learned Civil Judge (Senior Division), Bhubaneswar in CS No.1062 of 2020 is under challenge in this CMP, whereby passing a composite order, learned trial Court rejected the petition filed by the Petitioner under Order VII Rule 11 CPC with a prayer to reject the counter claim filed by the opposite Party and allowed the application filed by the Defendant-Opposite Party directing the Plaintiff-Petitioner to pay arrear rent/damages of Rs.1,71,736/- during pendency of the suit till December 2022 and a sum of Rs.2,34,450/- till the month of October 2021 (In total Rs.4,06,186/-) and on failure thereof to strike off the pleading of the Plaintiff-Petitioner. 3. Mr. Bose, learned counsel for the Petitioner submits that in this CMP, the Petitioner only assails the order passed on the petition under Annexure-5, whereby he has been directed to pay the rent, as above. It is submitted that learned trial Court while adjudicating the matter relied upon the provision under Order XV Page 1 of 4 // 2 // Rule 5 CPC which has not been incorporated in Orissa amendment. The said provision is applicable to Uttar Pradesh only as by way of amendment the State of UP introduced such a provision in Order XV of the CPC. It is further submitted that the ratio decided in Asha Rani Gupta –v- Sri Vinnet Kumar, reported in 2022(II) OLR SC, 284 is not applicable to the instant of the case as no such amendment has been introduced in CPC in State of Orissa. He, therefore, prays for setting aside the impugned order under Annexure 1. 4. Mr. Pttanaik, learned counsel for the Opposite Party submits that admittedly the Petitioner is a tenant under the Opposite Party and he has defaulted in payment of rent. Thus, learned trial Court has committed no error in directing the tenant to make payment failing which to strike off his pleadings in exercise of its inherent power. It is his submission that although the amendment by incorporating Order XV Rule 5 CPC is not applicable to Odisha, but the ratio decided in Asha Rani Gupta – v- Sri Vinnet Kumar, reported in 2022(II) OLR SC, 284 is squarely applicable to the case at hand. He also relied upon the case of Naresh Chandra Mohanty Vrs. Milan Kumar Badu in Miscellaneous Appeal No.100 of 1998 disposed of on 9th March, 1999, Jaswinder Kaur and another Vrs. Anil Ahuja reported in 2018 SCC Online Delhi-12513. He also relied upon the case of Green Ban Apartments Pvt. Ltd. and others Vrs. Mint matrix and others reported in 2021 SCC Online Calcutta-428. It is his submission that the Court has ample power to direct the tenant to deposit the admitted rent at any point of time during pendency of the suit and on failure, the Court may take coercive action, even Page 2 of 4 // 3 // by striking off the pleading. Thus, learned trial Court has committed no error in passing the impugned order. 5. Considering the submission made by learned counsel for the parties and on perusal of the provision under Order XV Rule 5 CPC as well as the case law relied upon by learned trial Court, it appears that learned trial Court proceeded on a misconception that Order XV Rule 5 CPC is applicable to Odisha. 6. In that view of the matter, the petition under Annexure-5 filed by the Opposite Party requires fresh consideration. Admittedly, the Petitioner is a tenant under the Opposite Party and he has not paid rent as well as Society charges after filing of the suit. He is occupying the premises without paying the rent as well as charges to the society as agreed upon. Due to non- compliance of the condition of ex-parte ad interim order, the petition filed by the Petitioner under Order XXXIX Rules 1 and 2 CPC in I.A. 1 of 2020 (arising out of self-same suit) has been dismissed vide order dated 16th February, 2021 (Annexure-A/1). 7. In view of the above, this Court is of the considered opinion that the Petitioner should pay the admitted rent and society charges regularly till disposal of the suit failing which, it is open to learned trial Court to take coercive measures in accordance with law. 8. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted back to learned Civil Judge (Senior Division), Bhubaneswar for fresh adjudication of the petition under Annexure-5 as expeditiously as possible preferably within a period of one month from the date of production of certified copy of this order, giving opportunity of hearing to the Page 3 of 4 // 4 // parties concerned. Learned trial Court shall also direct the Petitioner to deposit the admitted rent and society charges before it so that it can be disbursed in favour of the Opposite Party and the Opposite Party , in turn will be in a position to pay the society charges out of the same. The aforesaid process shall continue till disposal of the suit, unless modified/varied in accordance with law. 9. With the aforesaid observation and direction, the CMP is disposed of. 10. It is made clear that deposit of rent and society charges to be made by the Petitioner shall be without prejudice to the case either of the parties. 11. It is made clear that interim order passed in CRP No.14 of 2023 shall not stand on the way of learned trial Court to adjudicate the petition under Annexure-5. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Rojalin Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jul-2023 13:35:54 Page 4 of 4