THE HON’BLE SRI JUSTICE R.KANTHA RAO CRP No.701 of 2014 Date:03-06-2014 Between:
P.B.
Padmini …Revision petitioner And Smt.Cholleti Niveditha …Respondent
ORDER:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CRP No.701 of 2014 This civil revision petition is filed by the petitioners under Article 227 of Constitution of India aggrieved by the order dated 31.12.2013 passed in I.A.No.408 of 2012 in O.S.No. 49 of 2012 on the file of the Senior Civil Judge, Jangaon, Warangal District.
2. I have heard the learned counsel appearing for the revision petitioner and the learned counsel appearing for the respondent.
3. The brief facts for considering the present revision petition are that the suit schedule premises was originally owned by one Avaram Shameel Ahmed. The revision petitioner took the said premises on lease and has been running a bakery in the ground floor and using the first floor for residential purpose on a monthly rent of Rs.10,000/-. This fact is not disputed. Subsequently, Avaram Shameel Ahmed borrowed an amount of Rs.8 lakhs under a demand promissory note undertaking to repay the amount together with interest @ 2.5% per month. He also executed an agreement in favour of the revision petitioner keeping the house as security with a further covenant not to alienate or encumber or otherwise charge the said property in any manner and also specifying therein if any such transfer is made, it would be invalid. It is recited in the said agreement that Avaram Shameel Ahmed agreed to pay Rs.20,000/- towards interest every month, out of which, monthly rent of Rs.10,000/- has to be adjusted and the balance is to be paid every month.
4. The version of the petitioner is that by virtue of the aforesaid agreement, she is not liable to pay any amount till the loan is fully paid and discharged. While so, according to the respondent-plaintiff he purchased the suit schedule premises from Avaram Shameel Ahmed under Ex.A-1 registered sale deed dated 20.03.2010. In this context it requires to be noticed that Avaram Shameel Ahmed sold the property through his general power of attorney holder Cholleti Raja Ravinder Reddy, under an agreement of sale-cum-general power of attorney bearing document No.1609/2010 dated 26.02.2010 which is Ex.A-6 and the said general power of attorney is no other than the husband of the respondent.
5. The respondent after obtaining Ex.A-1 sale deed claiming to be the owner of the schedule premises, issued Ex.A-2 to the respondent calling upon her to pay the rents to her. But the revision petitioner did not pay the rents. Thereafter, the respondent demanded the revision petitioner to vacate the premises and on her failure, she filed O.S.No.49 of 2012 on the file of the Senior Civil Judge, Jangaon seeking eviction of the revision petitioner and also for damages of Rs.20,000/- for unauthorized use and occupation after expiry of lease period. In the said suit, she filed I.A.No.408 of 2012 under Order 15-A read with Section 151 of CPC seeking a direction from the Court to the revision petitioner to deposit rents from March, 2010 and to direct her to continue to pay the rents till the disposal of the suit. The said application was allowed by the learned Senior Civil Judge, Jangaon. Feeling aggrieved, she filed the present revision.
6. The main contention advanced on behalf of the revision petitioner is that the original owner Avaram Shameel Ahmed is precluded from alienating the property to the respondent by virtue of the agreement executed by him pursuant to his borrowing an amount of Rs.8 lakhs under a promissory note from the revision petitioner. The other contention on her behalf is that the sale-agreement cum general power of attorney dated 26.02.2010 was obtained from the original owner Avaram Shameel Ahmed under threat and coercion and the sale deed Ex.A-1 obtained by the respondent in pursuance of the aforesaid sale agreement cum general power of attorney is null and void. The revision petitioner relied on insolvency petition filed by Avaram Shameel Ahmed wherein he stated that Ex.A-1 sale deed was obtained under threat and coercion.
7. The point for determination in the revision is whether in the aforesaid circumstances, the order passed by the Senior Civil Judge directing the revision petitioner to deposit the rents @ Rs.10,000/- per moth from March 2010 till the disposal of the suit can be sustained.
8. Learned counsel appearing for the petitioner contended that the order directing to deposit rents under Order 15-A of CPC can be made if the quantum of rent and relationship between the parties is admitted. In the instant case, according to the learned counsel, it seems that sale of schedule premises is contrary to the agreement executed by the original owner in favour of the revision petitioner and also in view of the contention of the original owner that the respondent and her husband obtained Ex.A-1 sale deed by fraud and coercion, the learned Senior Civil Judge committed an error in issuing a direction to deposit the rents.
9. On the other hand, it is contended by the learned counsel appearing for the respondent-plaintiff that after obtaining Ex.A-1 sale deed, the petitioner became the owner of the property as there is no dispute regarding the quantum of rent, the learned trial Court is perfectly justified in directing the revision petitioner to deposit the rents. Reliance is placed by the learned counsel appearing for the petitioner
[1]
on (i) S. HABEEB AND OTHERS v. M.F. SHAHANAZ AND ANOTHER , (ii) K.
[2]
ZAKRIA SHAIK v. K. SALEEM BASHA , (iii) NAZAMUDDIN KAZI v. MOHD.
[3]
ABDUL AZIZ , AND (iv) GULLAPALLI VIJAYASREE v. REDNAM
[4]
SATYAVATHI (DIED) AND OTHERS . In all the aforesaid cases, the proposition laid down is that for making an order and under Order 15-A directing the tenant to deposit the rents there should not be any dispute regarding the quantum of rents and the liability of the tenant to pay the rent.
10. On the other hand, the learned counsel appearing for the respondent relied on 2011 (4) ALD 7572011(4) ALD 757 which was rendered with reference to the identical facts. In the judgment relied on by the learned counsel appearing for the respondent, the learned single Judge of this Court held as follows:
“It is now well settled that Order XV-A CPC applies only when the tenancy is admitted or where the circumstances of the case are such that they positively show that the plaintiff can be said to have become the owner/landlord of the property and the defendant can be said to have become his tenant by operation of law also. Equally the rent amount should also be undisputed and in any event it must be easily ascertainable where any dispute is raised regarding the quantum of rent.
It may be noted that if a plaintiff who has become landlord of a premises by operation of law is non-suited in a rent deposit application under Order XV-A CPC in a suit like this on the ground that the defendant/tenant's suit for specific performance either against previous owners of the property or the present plaintiff/landlord is pending then that would result in encouraging unscrupulous tenants to harass the landlords even by filing frivolous suits. In my opinion, the pendency of such a suit for specific performance brought by the tenant cannot be treated as a sufficient cause or ground to dismiss the application under Order XV-A of the landlord on the ground that the tenancy itself is disputed seriously. Instead the better course would be to direct the parties that each of them would be liable to the other according to the result of such specific performance suit of the tenant and that each of them can work out their remedies against the other basing upon the relief granted in such suit. In view of this and for the aforesaid reasons, it follows that the defendant is liable to deposit in principle the arrears of admitted rents. Of course whether there are any grounds or not for eviction have to be decided in the suit itself.”
12. Turning to the facts of the present case, the tenancy between the revision petitioner and Avaram Shameel Ahmed is admitted. It is also an admitted fact that the quantum of rent is Rs.10,000/- per month. The agreement allegedly executed by Avaram Shameel Ahmed in favour of the revision petitioner has to be proved in the suit filed by her. Obviously, by virtue of Ex.A-1 sale deed, the respondent- plaintiff became the owner of the property as per Section 109 of the Transfer of Property Act which reads as follows:
“Rights of lessor’s transferee.—If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.”
13. The enforceability of the agreement allegedly executed by Avaram Shameel Ahmed in favour of the revision petitioner and the validity of Ex.A-1 sale deed have to be adjudicated in the suit filed by the revision petitioner as well as in the insolvency petition filed by Avaram Shameel Ahmed but for the agreement executed by Avaram Shameel Ahmed, the revision petitioner is liable to pay rent @ Rs.10,000/- per month for the suit schedule premises. Therefore, there is no dispute regarding the quantum of rent. After Ex.A-1 sale deed, the respondent stepped into shoes of the original owner Avaram Shameel Ahmed and therefore, she is not entitled to claim the rents. The dispute is relating to her title to the property. Under these circumstances, I am of the considered opinion that the learned Senior Civil Judge is right in issuing a direction to the revision petitioner defendant to deposit the rent as contemplated under Order 15-A (A.P.Amendment) of CPC, 908. The order passed by the learned Senior Civil Judge does not call for any interference in the present revision.
14. The civil revision petition is therefore dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, filed in this revision petition, shall stand closed.
R.KANTHA RAO, J Date:03.06.2014 Ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO
CRP No.701 of 2014
Date:03-06-2014
[1] 2013(3) ALD 727
[2] 2011(4) ALD 757
[3] 2013 (6) ALD 23
[4] 2013(5) ALT 45