Selvel Publicity Consultants Pvt. Ltd. Vs. Altaf-ul-Rahim - Court Judgment

Oral Judgment:

1. Rule. Heard finally with the consent of learned Counsel for the parties.

2. This writ petition filed under Article 227 of the Constitution of India takes exception to the orders passed below Exhibits 46 and 47 thereby directing the present petitioner – plaintiff to deposit hoarding charges in terms of provisions of Order 15A of the Code of Civil Procedure (for short the Code).

3. The facts relevant for adjudication of this writ petition are that according to the petitioner, it is engaged in the business of Publicity and Consultancy. Said activities are undertaken by erecting hoardings on various sites. Such hoardings were duly erected by the petitioner on the building owned by the defendant by executing an agreement in that regard. As per the agreement between the parties, the plaintiff was liable to pay hoarding charges to the defendant. According to the petitioner, it was a lessee and its possession of the said site was in that capacity. On obstruction being caused by the respondent, suit for declaration and permanent injunction came to be filed. The declaration sought was that the defendant should not disturb the peaceful possession of the plaintiff over the suit site. Permanent injunction in that regard was also sought. The plaintiff invoked jurisdiction of the Small Causes Court by contending that the hoardings in question were premises within the meaning of Section 7(9) of the Maharashtra Rent Control Act, 1999.

4. During pendency of the suit, the plaintiff had sought relief of temporary injunction so as to restrain the defendant from disturbing its activities in relation to the hoarding sites. The said relief came to be granted by the trial Court and miscellaneous appeal preferred by the defendant came to be dismissed. It is not in dispute that said order of temporary injunction holds the field even today.

5. According to the defendant, the plaintiff had defaulted in paying hoarding charges and hence, two applications were moved seeking directions in that regard. By application vide Exhibit-46, the defendant sought hoarding charges for the period from 9-9-2012 to 8-9-2013 and by application vide Exhibit-47, the defendant sought hoarding charges for the year 2013-2014. The plaintiff filed replies to aforesaid applications and took the stand that the suit being simplicitor for declaration and injunction, such relief could not be granted to the defendant.

6. The trial Court on 27-6-2014 decided both the applications. Relying upon the agreement between the parties and the fact the relationship between them was not in dispute, it directed the plaintiff to deposit hoarding charges for the aforesaid period under provisions of Order 15A of the Code. It further directed that noncompliance of said direction would result in striking out the defence. These orders have been challenged in the present writ petition.

7. Shri S. Dewani, learned Counsel appearing for the petitioner submitted that the trial Court was not justified in directing deposit of hoarding charges. He submitted that the provisions of Order 15A of the Code were not at all attracted as the suit was not for eviction by a lessor. As the requirements of Order 15A of the Code were not satisfied, such directions could not have been issued. In that regard, reliance was placed on decision of learned Single Judge in Radheshyamv. Tuljaprasad and ors., AIR 2007 Bombay 83. He then submitted that the defendant had been preventing the plaintiff from enjoying fruits of the interim order. The defendant was not permitting the plaintiff to operate the hoardings in breach of the interim order. Hence, the defendant could not be permitted to take advantage of his own wrong. He referred to the order passed by the trial Court granting police aid to the plaintiff for enforcing the order of interim injunction. He also submitted that there was a dispute raised with regard to arrears of dues and without adjudicating the same, the direction to deposit said amounts had been issued. He, therefore, submitted that aforesaid orders could not be sustained.

8. Shri R. R. Srivastava, learned Counsel appearing for the respondent supported the impugned orders. He submitted that the relationship between the parties as well as the liability to pay hoarding charges was not in dispute. He submitted that the directions issued by the trial Court were after considering the nature of the suit which was one between a lessee and a lessor. Without prejudice to said submission, he sought to support the impugned orders by relying upon provisions of Order 39 Rule 10 of the Code. He submitted that such directions could be issued to prevent abuse of the process of Court and also to subserve the ends of justice. He placed reliance in that regard on judgment of the Division Bench in ChandrakantShankarrao Deshmukh vs. Haribhau Tukaramji Kathane and others, 1983 Mh.L.J. 88. He also submitted that by the impugned orders, there was merely a direction to deposit the amounts in question and there was no permission granted to the defendant to withdraw the same and hence no prejudice was caused. He then submitted that the impugned orders were purely interlocutory orders that had been passed in exercise of discretion by the trial Court. There was no scope to interfere with such interlocutory orders. In this regard, he placed reliance on the decisions of the Supreme Court in KokkandaB. Poondacha and others vs. K. D. Ganapathi and another, (2011) 12 Supreme Court Cases 600 and ShaliniShyam Shetty and another and Rajendra Shankar Patil (2010) 8 Supreme Court Cases 329. He, therefore, sought dismissal of the writ petition.

9. I have carefully considered aforesaid submissions. The suit as filed is for declaration that the plaintiff is entitled to peaceful possession of the hoardings installed on the terrace of the building owned by the defendant. Consequential relief of permanent injunction has also been prayed for. The suit is, therefore, not one for either eviction of a lessee or a licencee. The trial Court while allowing the applications moved by the defendant has relied upon provisions of Order 15A (1) of the Code. Said provisions read thus:

“Order XVA:

(1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case may be, for his eviction with or without the arrears of rent or licence fee and future mesneprofits 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 or licence fee claimed in the suit as the Court may direct. The defendant shall, unless otherwise directed, continue to deposit such amount till the decision of the suit. In the event of any default in making the deposits, as aforesaid, the Court may subject to the provisions of sub-rule (2) strike off the defence.”

Aforesaid provisions clearly indicate that in a suit for eviction by the lessor or licensor with or without arrears of rent or licence fee, the defendant can be directed to deposit the amount of arrears during pendency of the proceedings. It is, therefore, clear that the present suit not being one filed by a lessor for eviction, the provisions of Order 15A (1) of the Code would not be attracted in view of the reliefs sought in the suit. Said objection raised by the learned Counsel for the petitioner in that regard, therefore, will have to be accepted. The impugned order, therefore, cannot be treated to be one passed in exercise of powers under Order 15A(1) of the Code.

10. Having held so, it would be now necessary to consider the submission made on behalf of the defendant that such directions could be issued by the Court in exercise of powers under Order 39 Rule 10 of the Code. Order 39, Rule 10 of the Code reads thus:

“10. Deposit of money, etc., in Court: - Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.”

Rule 10 of Order 39 contemplates passing of an interlocutory order by the Court under the head of “Interlocutory Orders” from Rules 6 to 11 of the Code. It contemplates money or any other thing held by one party that is due to another party that can be directed to be deposited in Court or delivered to the other party. Said provisions of Order 39 Rule 10 of the Code has been exhaustively considered by the Division Bench in ChandrakantDeshmukh (supra). Though aforesaid decision considers the case where the landlord was the plaintiff and the tenant was the defendant, in para 19 it was observed that said provisions could be invoked by any party. Para 19 of said decision reads thus:

“19. Order 39, Rule 10, Civil Procedure Code by itself does not impose any conditions or limitations upon the exercise of that power. It follows, therefore, that to prevent the abuse of the process of Court and in order to subserve the ends of justice, the powers conferred upon a Court under Order 39, Rule 10, Civil Procedure Code can be invoked by any party. The question whether the Court will exercise that power in his favour is entirely a different question. But it cannot be denied that such a power exists. If the power exists, then there is jurisdiction to pass an order of the kind which we have indicated above. If there is jurisdiction to pass an order of this kind, we fail to see how the order can be struck down or described as without jurisdiction merely because Section 151 is invoked in addition to Order 39, Rule 10 and the principle underlying that Rule.” (emphasis supplied on marked portion)

Thereafter, in para 25 of the decision, it was further observed that it was the moral and legal responsibility of a tenant to pay charges for occupation of the premises and the same could not be denied. Reference was also made to provisions of Section 151 of the Code. In para 25 thereof, it has been observed thus:

“25............................................................................

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Besides we are unable to see any justification for a tenant to deny his moral and legal responsibility to pay, as long as he is in occupation of the premises on the supposed strict words of law or procedure not providing for a situation of this kind. To us it appears that the provisions of Section 151, Civil Procedure Code and the inherent jurisdiction and powers of the Court are ideally meant and suited to bring relief and redress to meet the ends of the situation and to meet the ends of justice. If factual circumstances tend to result in operating unjustly against a particular litigant, then we do not think that the powers under Section 151, Civil Procedure Code cannot be utilized for his assistance. Courts would undoubtedly and should in such a situation go to his assistance and would not be precluded from doing so by the cold words of the Code or of the law. Life and activity can be infused in them to meet such a situation by virtue of the provisions of Section 151, Civil Procedure Code.”

11. The aforesaid decision, therefore, holds that the Court in a given case could invoke powers under Order 39 Rule 10 of the Code to sub-serve the ends of justice. As observed above, such powers could be invoked at the instance of any of the parties to the suit. Hence, the learned Counsel for the respondent is justified in relying upon aforesaid decision.

12. In the present case, the existence of agreement between the parties and the liability to pay hoarding charges by the plaintiff is not in dispute. The only dispute is with regard to the quantum thereof and the entitlement of the defendant in view of the stand of the plaintiff that it has been prevented from using the said site despite interim orders. Perusal of the impugned orders indicate that the trial Court has merely directed the plaintiff to deposit the hoarding charges in Court and continue to do so till final disposal of the suit. This the plaintiff is even otherwise liable to do in terms of the agreement between the parties. The effect of the plaintiff being prevented from using the hoardings at the site in question would be a matter to be considered by the trial Court on the basis of evidence led before it.

13. It is, therefore, clear that though the trial Court was not justified in invoking the provisions of Order 15A (1) of the Code, the impugned directions can be maintained in view of the powers that were available under Order 39 Rule 10 of the Code. The Supreme Court in para 9 of its judgment in N. Mani Versus Sangeetha Theatre and others (2004) 12 Supreme Court Cases 278 has observed thus:

“9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.”

Hence, the only modification that would be required is with regard to the nature of directions issued by the trial Court and the effect of non-compliance of said orders. As the impugned orders are not being interfered with, it is not necessary to go into the submission regarding maintainability of the writ petition challenging an interlocutory order.

14. In view of aforesaid discussion, the following order is passed:

The directions issued by the trial Court on 27-6-2014 vide Exhibits 46 and 47 shall be treated as directions issued in terms of Order 39 Rule 10 of the Code. Non-compliance thereof would be treated as non-compliance of provisions of Order 39 Rule 10 of the Code. Subject to aforesaid modification, Rule is disposed of with no order as to costs.