Judgment:
The suit is for eviction. On an application under Chapter XIIIA of the Rules of the Original Side of this Court an order was made on October 8, 2002 by which the Original defendant was directed to deposit a sum of Rs.5,70,000/- with Advocate representing the plaintiffs as a condition for obtaining leave to defend the suit.
Such payment has been received and remains deposited in terms of the earlier order. The order dated October 8, 2002 required monthly occupation charges of Rs. 5,000/- to be paid by the 15th of every month in respect of the period after the date of the order. Advocate representing the plaintiffs, who is the Receiver in terms of the order, submits that a sum of Rs.2,86,505/- now remains (inclusive of interest) on account of the monthly deposit made by the original defendant up to the time of his death.
The payments were made till the month of June, 2006 and the original defendant died on July 3, 2006. After the death of the original defendant no payment on account of occupation charges have been received, though the order October 8, 2002 was affirmed in appeal and the special leave petition from the Appellate Court order also failed. There is a dispute as to who would be entitled to the estate of the original defendant.
The substituted defendant nos.1 to 4 claim to be executors of a Will said to have been executed by the original defendant. The substituted defendant nos. 5 and 6 claim to be Class-II intestate heirs of the original defendant. It is submitted by the appearing parties that the defendant no. 6 has died. The plaintiffs will be at liberty to take appropriate steps for bringing the heirs of the deceased sixth defendant on record.
Though the cause-title of the present application does not reflect the incorporation of other parties, the defendant nos. 7 to 10 have been added on the basis of their claim that they are other Class-II intestate heirs of the original defendant. The defendant no. 11, one Bidisha Basu, has recently been added on the basis of her claim as the grand-niece of the original defendant and as the purchaser of the business from the original defendant. It is the undisputed position that the defendant no. 11, Bidisha Basu, is in possession of the premises in question and is running a cinema hall by the name of Prachi thereat.
The defendant no. 11 offers to pay the arrears occupation charges from the month of July, 2006 till November, 2010. She seeks a fortnights time to make payment of the sum of Rs.2,65,000/- on account of the 53 months. In addition, the defendant no. 11 offers to pay the enhanced occupation charges of Rs.7,500/- per month effective December, 2010 without prejudice to her contention that the suit property may be covered by the Thika Tenancy Act. The defendant no.11 will make payment of the outstanding occupation charges with a fortnight and the current monthly charges by the 15th of each successive month.
The plaintiffs will be entitled to receive the amount deposited on account of monthly occupation charges whether by the original defendant or now by the defendant no.11. The amount received on account of arrears rent pursuant to the order dated October 8, 2002 and the accretion thereto will be retained by the Receiver and not made over to the plaintiffs, subject to any further order that may be passed in the suit.
The payments to be tendered by the defendant no. 11 will not create any equity in her favour in the matter relating to the succession to the estate of the original defendant. It is made clear that the plaintiffs will be entitled to appropriate all occupation charges for the period after the order dated October 8, 2002 was passed and for such purpose the Receiver will be entitled to make over the amount of Rs.2,86,505/- lying deposited.
The plaintiffs will also be entitled to the payment of Rs.2,65,000/- to be tendered by the defendant no.11 in pursuance of this order. The plaintiffs will further be entitled to the monthly occupation charges of Rs.7,500/- to be paid effective December, 2010 by the defendant no. 11.
The payment will be received by the plaintiffs without prejudice to the rights and contention in this suit and upon furnishing letters of guarantee to the Receiver that each of the plaintiffs would remain liable to reimburse the amount received in the event the plaintiffs fail on the point of thika tenancy. GA No.2594 of 2010 is disposed of without any order as to costs. Since no affidavit-in-opposition has been used by the defendant nos. 7 to 11, the allegations in the petition should not be deemed to have been admitted by such defendants.
Urgent certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.