THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 4880 OF 2013 Dated:25-07-2014
Between:
M/s. Forture (Fantoosh) rep., by its Partners, 1. Mr. Nool Ali and another ... PETITIONERS AND Kamaran Mirza and another .. RESPONDENTS THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 4880 OF 2013
ORDER:
This revision is filed by the defendants in O.S No. 767 of 2012 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad.
The petitioners are the tenants of the respondents in respect of premises at Abids Road, Hyderabad. The respondents filed the suit for the relief of eviction and recovery of rents. In the suit, the respondents have also filed I.A No. 2965 of 2012 under Order XXXVIII Rule 5 CPC, with a prayer to attach before judgment, the movables worth Rs.21,60,000/- available in shop Nos.4-1-391 and 4-1-392, Abids Road. The trial Court passed an ex parte order on 01-11-2012 requiring the petitioners to furnish security for the sum of Rs.21,60,000/- within 48 hours, failing which the attachment shall follow.
Learned counsel for the petitioners submits that the premises which were leased to the petitioners by the respondents are totally different and the order of attachment was obtained in respect of unrelated premises. He further submits that the filing of an application under Order XXXVIII Rule 5 CPC in a suit for eviction is unheard of and constitutes steps taken in gross misuse of process of Court.
Learned counsel for the respondents on the other hand submits that the petitioners committed default in payment of rents and suspecting that the valuables of the premises would be taken away, the application is filed. He submits that even now the petitioners can furnish the security and in such an event, the order can be withdrawn.
Filing of an application under Order XXXVIII Rule 5 of CPC is a step which is contemplated in suits for recovery of money. One cannot imagine such application being filed in suits for eviction, even if the ancillary relief of recovery of arrears of rent is claimed. The suit filed by the respondents was the one for eviction and recovery of arrears of rent. The circumstances under which an application under Rule 5 of Order XXXVIII can be filed viz., that the defendant is likely to leave the jurisdiction of the Court or to remove any valuable items, do not arise in a suit of this nature. The subject matter of the suit happens to be the premises under lease and the necessity to recover the arrears would arise either when the suit is decreed or when an application under Order XVA is filed. In the affidavit filed in support of the I.A., the following statement is made:
“I submit that the respondent/defendant is making attempt to dispose of the movables and trying to leave the jurisdiction of the Hon’ble court and if the respondent/defendant succeeds in his ill attempts the petitioners/plaintiffs 1 & 2 will be put to great hardship and injury in realising the arrears of the rents.””
If, in fact, the petitioners were leaving the premises, it would have been to the advantage of the respondents. The stock in trade in any premises cannot be attached unless the nature of claim and the prima facie strength in it is examined, after issuing notice to both the parties. The trial Court passed order in a mechanical manner without realising the implications and consequences. On account of such imperfect exercise, the petitioners are put to great hardship. When the claim is only in the form of arrears of rent, the trial Court was under an obligation to first satisfy itself as to whether there was any relationship of lessor and lessee, at all. This Court is totally dissatisfied with the manner in which the trial Court passed the order under revision.
The C.R.P is accordingly allowed and the order under revision is set aside. The trial Court shall ensure that the bailiff restores the attached articles forthwith in the same form, within one week. Any lapse in this regard will be taken serious note of.
Since the petitioners are not claiming any rights over the premises bearing Nos.4-1-391 and 4-1-392, it shall be open to the respondents to get possession of the same, after ascertaining the identification thereof in the presence of the bailiff of the Court, and an official from the Greater Hyderabad Municipal Corporation.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 25th July, 2014 ks