1. The petitioners are a partnership firm registered under the Partnership Act. The petitioner firm is a member of Sidhpura Co-operative Industrial Society. This co-operative Society owns, inter alia, premises on the first floor of 37 Sidhpura Co-operative Industrial Estate, S.V Road, Goregaon, Bombay, 400062. The petitioner firm, by virtue of its membership of the said society, is put in possession of the said premises as an “owner” thereof.
2. It is the case of the petitioner that under an agreement dated 17th November, 1977 they gave their business which was carried on in the said premises as well as the said premises to the respondents for the purpose of conducting the said business on the terms and conditions which are recorded in the said agreement. It was agreed between the parties under the said agreement that royalty at the rate of Rs. 1400/- per month would be paid by the respondents to the petitioners. This agreement was renewed by an agreement dated 6th November 1978. Royalty, however, was increased to Rs. 1500/- per month under this agreement. It seems that in October 1982 the respondents filed a declaratory suit in the Court of Small Causes at Bombay for a declaration that they were the tenants in respect of the said premises. This suit bears R.A Declaratory Suit No. 5412 of 1982. The respondents also filed an application for standard rent in the year 1983.
3. The petitioners filed the present suit being LE & C Suit No. 85/94 of 1983 under S. 41 Presidency Small Cause Courts Act, 1882, for recovering possession of the said premises as also the said business furniture, articles and other objects lying in the said premises as set out in the plaint. The petitioners have also prayed for recovery of a sum of Rs. 13500/-, being arrears of royalty from 1st of May, 1982 to 31st January, 1983 with interest thereon at the rate of 18% per annum. They have also prayed for mesne profits and/or damages as from 1st February, 1983 till possession is obtained by them as prayed.
4. The defendants, that is to say, the respondents herein, filed their written statement on or about 2nd August, 1983. Thereafter the suit came up for scrutiny and direction before the Court of Small Causes at Bombay. At that stage the petitioners sought directions from the Court to the effect that the respondents should deposit in Court arrears of royalty as also future royalty charges from month to month. The learned Judge of the Small Cause Court at Bombay, by his order dated 11th July, 1984, however, did not pass any order in this connection. He has come to a conclusion that since the suit is under S. 41, Presidency Small Cause Courts Act, 1882, he has no power to pass an order of deposit because there is no specific provision under the Presidency Small Cause Courts Act, 1882, under which he can pass such an order. The learned Judge has held that there is no provision in this Act similar to S. 11(4) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Hence he cannot make any interim order for deposit of compensation and/or mesne profits.
5. The present petition is filed challenging this order. Since the suit is filed under S. 41 Presidency Small Cause Courts Act, 1882, it is necessary to examine the provisions of the said Act.
Under S. 9, Presidency Small Cause Courts Act, 1882, it is provided as follows:
“9. (1) The High Court may, from time to time, by rules having the force of law—
(a) prescribe the procedure to be followed and the practice to be observed by the Small. Cause Court either in supersession of or in addition to any provisions which were prescribed with respect to the procedure or practice of the Small Cause Court on or before the thirty-first day of December, 1894, in or under this Act or any other enactment for the time being in force; and
(aa) & (b) xx xx xx xx xx xx xx xx xx xx xx
(2) The law, and any rules and declarations made, thereunder, with respect to procedure or practice, in force or treated as in force in the Small Cause Court on the thirty-first day of December, 1894, shall be in force, unless and until cancelled or varied by rules made by the High Court under this section.”
The jurisdiction of the Small Cause Court is set out in Chapter IV of the said Act. Certain specific provisions relating to procedure in suits are set out under Chap. V. Chapter VII deals with “Recovery of Possession of Certain Immoveable Property and Certain Licence fees and Rent”. S. 41 falls under Chapt. VII.
It provides as follows:
“41. (1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-sec. (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immoveable property situated in greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject-matter of such suits or proceedings.
(2) Nothing contained in sub-s. (1) shall apply to suits or proceedings for the recovery of possession of any immoveable property, or of licence fee or charges or rent thereof, to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction) Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948, or any other law for the time being in force, applies.”
Section 42 which forms part of the same chapter provides for appeals from decrees or orders made by the Small Cause Court while exercising jurisdiction under S. 41. This is in contradistinction to provisions relating to appeal in respect of other suits which are set out in Chap. VI. Section 43 deals with procedure to be followed in suits and/or proceedings under S. 41. It provides as follows:
“43. In all suits, appeals and proceedings under this Chapter, the Small Cause Court shall, as far as possible and except as herein otherwise provided, follow the procedure prescribed by the Code of Civil Procedure, 1908.”
Thus Chapter VII deals separately with suits and proceedings under S. 41. Under this chapter separate provisions are made relating to such suits and proceedings. The procedure which is prescribed for the trial of such suits and proceedings is also separately provided for in S. 43 which lays down that procedure prescribed by the Code of Civil Procedure, 1908, will be followed in such suits and proceedings as far as possible except as provided in the said Act. This is in contradistinction to the provisions under S. 9 of the said Act for procedure to be followed by the Court of Small Causes at Bombay in respect of various matters over which Presidency Small Cause Court exercises jurisdiction specified in Chap. IV.
6. Bombay High Court has framed rules under S. 9 which are known as Presidency Small Cause Courts Rules. Under R. 1 sub-r. (2) “the portions of the Code of Civil Procedure, 1908, as modified in its application to the State of Bombay up to 30th December, 1957 specified in the 1st column of the schedule hereto annexed shall, subject to the additions, alterations and modifications specified in the 2nd and 3rd columns of such schedule, extend and shall be applied to the Small Cause Court……….” Here also it is provided that if there are any specific provisions relating to procedure in the Presidency Small Cause Courts Act, 1882, which are inconsistent with such procedure, the specific provisions will be followed. In the Schedule to the Rules the 1st column specifies the relevant provision of the Civil Procedure Code and the second column prescribes the alterations and modifications to the relevant provisions of the Civil Procedure Code. The 2nd column is divided into two parts. The 1st part deals with suits for sums exceeding Rs. 1000/-. The 2nd part deals with suits for sums not exceeding Rs. 1000/-. Thus the provisions of this schedule also make it clear that the schedule prescribes procedure and practice in respect of suits which are within the jurisdiction of the Presidency Small Cause Courts Act, 1882, as provided in Chap. IV. The schedule, therefore, does not ordinarily apply to suits which are filed under S. 41, Presidency Small Cause Courts Act, 1882. For such suits the Code of Civil Procedure is made applicable by virtue of the provisions of S. 43 Small Cause Courts Act, except as expressly provided otherwise in the said Act.
7. Chapter VII has undergone substantial changes. Originally it dealt with “Recovery of Possession of Immoveable Property”. S. 41 prescribed the issuance of a summons against an occupant of an immoveable property (of which the annual value at rack rent did not exceed Rs. 2000/-) who was in occupation without leave. It is not necessary to examine in detail the changes brought about in Chap VII. But originally S. 41, before it was amended by maharashtra act 29 of 1976, did not deal with suits. Under S. 41 as it stood prior to the amendment of 1976 proceedings could be started by the applicant by applying to the Small Cause Court for a summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. For applications required to be made under S. 41 prior to its amendment in 1976, S. 48 as then in force, prescribed that “in all proceedings under this Chapter, the Small Cause Court shall, as far as may be and except as herein otherwise provided, follow the procedure prescribed for a court of first instance by the Code of Civil Procedure (XIV of 1882).” There was thus a separate procedure for applications under Chap. VII. After the amendment of 1976 the Court of Small Causes has jurisdiction to entertain all suits and proceedings between a licensor and licensee or a landlord and tenant relating to the recovery of possession of any immoveable property situated in greater Bombay or relating to the recovery of the licence fee or charges or rent thereof irrespective of the value of the subject matter of such suits and proceedings. In view of this extension of jurisdiction under the amended S. 41, there is also a provision made in S. 46 saving pending proceedings in the High Court and the Bombay City Civil Court. Section 43 has replaced the old S. 48. Under the present S. 43 the procedure prescribed by the Code of Civil Procedure, 1908, is made applicable to suits and proceedings under S. 41 except as otherwise provided in the Presidency Small Cause Courts Act, 1882.
8. Hence it is necessary to examine whether under the provisions of the Code of Civil Procedure there is any power in the court to pass an interim order requiring a licensee to deposit arrears of royalty and/or charges and/or mesne profits in court pending the disposal of the suit. The Bombay High Court in the exercise of powers under S. 122, Civil P.C and other relevant provisions has made certain amendments to schedule 1 of the Code of Civil Procedure, 1908, which have come into force with effect from 1st October 1983. As a result of these amendments a new order XV-A is, mter alia, introduced in the Civil Procedure Code.
9. Under O. XV-A R. 1 it is provided as follows:
“XV-A1. (1) In any suit by a lessor for eviction of a lessee or for the recovery of rent and future mesne profits 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 claimed in the suit, as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed.
In the event of any default in making the deposit, as aforesaid, the Court may subject to the provisions of sub-r. (2) strike off the defence.”
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This order applies to suits filed by a lessor for eviction of a lessee or for recovery of rent and future mesne profits from the lessee. Under this Order the court has been granted an express power to direct the lessee to deposit arrears of rent as well as recurring rent in court pending the disposal of the suit. In the event of any default, the court has power to strike off the defence. This provision does not cover suits filed by a licensor against a licensee.
10. It is, however, contended by Mr. Rane, learned advocate for the petitioner, that power under O. XVA, to order the defendant to deposit arrears of rent and to deposit rent for each month pending the disposal of the suit, in the interest of justice, should be extended to cases between a licensor and licensee. It is pointed out by Mr. Rane that under S. 151, Civil P.C the court can pass an order, similar to that under O. XVA, ex debito justitiae and in order to avoid abuse of the process of court. There is much force in this contention.
11. Under S. 151, Civil P.C “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”
12. In the case of Manoharlal Chopra v. Rai Bhadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527, the Supreme Court observed that the provisions of the Civil Procedure Code are not exhaustive, for the simple reason that the legislature is incapable of contemplating all circumstances which may arise in future litigation. The Supreme Court held that a temporary injunction could be issued in the exercise of inherent powers under S. 151 when the case was not covered by the provisions of O. XXXIX.
13. In a Full bench decision of the Madras High Court in the case of Muthia Chettiar v. Govinda Doss reported in AIR 1921 Mad 599, the Madras High Court dealt with a case where an assignee of a part of a decree was allowed to execute the decree where the executing decree-holder was not duly prosecuting execution. It held that a part transferee of a decree is much in the same position of a joint decree holder under O. 21 R. 15 although he does not come within the words of that rule. The court held that his position was analogous to that of a joint decree holder. It said that so long as there is nothing in O. XXI Rr. 15 and 16 cutting down his right, S. 151 will empower the courts to grant relief by applying principles analogous to Rules 15 and 16. It observed, “I think courts ought to apply the provisions of the rules which are nearest in point with such, modifications as may be necessary and not refuse on the ground that the legislature has, not made provision for a particular case though within the generality of a section of the code. The object of S. 15 is to give such power to Courts and to prevent a failure of justice.”
14. In the case of Chandrakant Shankarrao Deshmukh v. Haribhau Tukaramji Kathane reported in 1983 Mah LJ 88 a Division Bench of this High Court considered the case of a landlord who had filed a suit against his tenant for delivery of possession. The court held that under S. 151, C.P.C read with O. XXXIX R. 10, the court had power to require the tenant to deposit or pay rent during the pendency of the suit. This case was decided prior to the introduction of O. XV-A in the Code of Civil Procedure. The Division Bench of this court overruled an earlier judgment of a single Judge of this court reported in the case of Suresh Haribhau Admane (Defendant)…Applicant; v. Purushottam Shankarrao Purohit (Plaintiff)…Non-Applicant. reported in 1982 Mah LJ 99. In this case a learned single Judge of this court had held that an order of interim deposit of rent could not be passed by the court under S. 151 Civil P.C during the Pendency of the suit. This decision was expressly overruled by the Division Bench which held that the court had such a power under S. 151, Civil P.C The Division Bench observed that in many cases landlords depend for their livelihood upon the income from the properties. It would be a hardship in the circumstances if the landlord has the misfortune of having to file suits against his tenants who cannot be ordered to pay any amount on account of their use and occupation of their premises while the landlord is required to meet his responsibilities and liabilities. The process of the court over which neither the landlord nor the tenant defendant has any control cannot be allowed to be abused and work to the detriment of a person. If it is capable of resulting in harm, then the Courts are not powerless to make orders so as to mitigage that harm. By parity of reasoning, in cases between a licensor and licensee also a similar, order can be passed. Such orders as between a lessor and lessee are now expressly permitted under O. XVA, Civil P.C By analogy, similar orders can be passed in cases between licensor and licensee also.
15. Learned Judges of the Division Bench in the above case also relied upon O. XXXIX, R. 10, Civil P.C in support of their decision. They held that in the case of a landlord and tenant, the tenant cannot dispute his liability to pay the rent to the landlord although the quantum of such rent may be in dispute. The Division Bench held that in such cases the tenant, in fact, is deemed to admit that some money is due to the plaintiff. In such a situation the court can direct the tenant to deposit such amount as the court may deem fit under O. XXXIX R. 10. The same reasoning applies to a case between licensor and licensee also. The licensee can be similarly directed to deposit certain amounts in respect of licence fees or mesne profits under the provisions of O. XXXIX R. 10 in view of the Division Bench of this court in the above case.
16. Since the provisions of the Civil Procedure Code apply to suits under S. 41, Presidency Small Cause Courts Act, S. 151 and O. XXXIX R. 10 apply to such suits. Even under the Presidency Small Cause Court Rules framed by the Bombay High Court, S. 151 and O. XXXIX R. 10 are applicable to suits before the Small Cause Court.
17. In the present case there is no question of any claim of arrears being barred by the law of limitation. Under O. XXXIX R. 11 which is introduced in the Civil Procedure Code by Rules made by the Bombay High Court in 1983, “where the Court orders any party to a suit…………to do or not to do a thing during the pendency of the suit………………and such party commits any default in respect of or contravenes such order………….the court may…………strike out the defence if the default…………is committed by the defendant………..” Hence the Small Cause Court also has power to order the striking off of defence if the defendant commits defaults in depositing license fee.
18. In the present case a sum of Rs. 51,000/- at the agreed rate of Rs. 1500/- per month is the quantum of arrears up to the end of February 1985. In the circumstances, the order of the Small Cause Court dated 11th June 1984 is set aside. The respondent is directed to deposit the said sum of Rs. 51,000/- in the following manner:
Rs. 15,000/- on or before 31st March 1985; a sum of Rs. 10,000/- on or before the end of April 1985, a sum of Rs. 10,000/- on or before the end of May 1985, Rs. 10,000/- on or before, the end of June 1985 and the balance on or before the end of July 1985. The respondent will also deposit monthly compensation of Rs. 1500/- as from 1st of March 1985 on or before the 20th of each month; first such payment to be made on or before 20th March and each succeeding payment to be made on or before 20th of each succeeding month until the disposal of the suit. The petitioner will be at liberty to withdraw two-thirds of the amounts so deposited without security and without prejudice to the rights and contentions of the parties.
In the event of the respondent committing a default in the payment of any three instalments in respect of any of the aforesaid payments the trial court will be at liberty to strike off the defence, of the defendant. Before striking off the defence, the trial court will follow the procedure prescribed in sub-r. (2) of O. XV A.
Liberty to the parties to apply before the trial court regarding the balance one third amount deposited in court. The rule is made absolute accordingly.
In the circumstances of the case there will be no order as to costs.
Rule made absolute.
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