Case Note & Summary
The petitioner, Mrs. Philomena D' Souza, through her attorney holder, filed a writ petition challenging an order dated 12.03.2012 passed by the learned Civil Judge, Senior Division, Mapusa, in Special Civil Suit No. 43/10/A. The trial court had dismissed the petitioner's application seeking deposit of licence fee during the pendency of the eviction suit, holding that such claim could only be made after a decree for eviction was passed under Order 20 of the Code of Civil Procedure, 1908 (CPC). The petitioner contended that the application should have been considered under Order 15-A CPC, which permits the court to order deposit of licence fee or rent during the pendency of a suit for eviction. The High Court, upon hearing counsel for both parties, found that the trial court had failed to consider Order 15-A CPC and had erroneously relied on a judgment in Gulamhusai Asgaraly Vahanvaty & Ors. vs. Allahabad Bank, Mumbai, which dealt with mesne profits after decree and was not applicable. The court held that the trial court acted with material irregularity affecting its jurisdiction, warranting interference under Article 227 of the Constitution of India. Consequently, the impugned order was quashed and set aside, and the trial court was directed to consider the application afresh in accordance with law.
Headnote
A) Civil Procedure - Eviction Suit - Licence Fee During Pendency - Order 15-A of the Code of Civil Procedure, 1908 - The petitioner, claiming to be licensor, filed an application for deposit of licence fee during pendency of eviction suit. The trial court dismissed it holding such claim can be made only after decree under Order 20 CPC. The High Court held that the application ought to be considered under Order 15-A CPC, which applies during pendency of suit, and the trial court failed to consider this provision, resulting in material irregularity. The impugned order was quashed and set aside. (Paras 3-6)
Issue of Consideration
Whether an application for deposit of licence fee during pendency of an eviction suit can be considered under Order 15-A of the Code of Civil Procedure, 1908, or only after a decree for eviction under Order 20 CPC.
Final Decision
The impugned order dated 12.03.2012 is quashed and set aside. The learned Civil Judge is directed to consider the application afresh in accordance with law.
Law Points
- Order 15-A CPC applies to claims for licence fee during pendency of eviction suit
- Order 20 CPC applies only after decree
- Article 227 of Constitution of India for supervisory jurisdiction
Case Details
2013 LawText (BOM) (01) 105
Writ Petition No. 505 of 2012
Mr. Anthony Joe D' Silva for Petitioner, Mr. J. P. Mulgaokar for Respondent
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Nature of Litigation
Writ petition under Article 227 of Constitution of India challenging an order of the Civil Judge dismissing an application for deposit of licence fee during pendency of eviction suit.
Remedy Sought
Petitioner sought quashing of the impugned order and direction to consider the application under Order 15-A CPC.
Filing Reason
The trial court dismissed the application for deposit of licence fee on the ground that such claim can only be made after a decree for eviction under Order 20 CPC.
Previous Decisions
The trial court passed the impugned order dated 12.03.2012 in Special Civil Suit No. 43/10/A.
Issues
Whether an application for deposit of licence fee during pendency of an eviction suit can be considered under Order 15-A CPC or only after decree under Order 20 CPC.
Submissions/Arguments
Petitioner argued that the application ought to be considered under Order 15-A CPC, which permits deposit of licence fee during pendency of suit.
Respondent's counsel waived service and did not oppose the petition.
Ratio Decidendi
An application for deposit of licence fee during pendency of an eviction suit is to be considered under Order 15-A of the Code of Civil Procedure, 1908, and not only after a decree under Order 20 CPC. Failure to consider Order 15-A CPC constitutes material irregularity warranting interference under Article 227 of the Constitution of India.
Judgment Excerpts
The learned Judge, whilst passing the impugned Order, failed to consider that such claim on the part of the Petitioner who claimed to be the licensors of the suit premises can be made under Order 15-A of the Civil Procedure Code.
The Judgment of this Court relied upon by the learned Judge in the impugned Order reported in 2011 (4) Mh. L. J. in the case of Gulamhusai Asgaraly Vahanvaty & Ors. vs. Allahabad Bank, Mumbai, which is wrongly quoted as being reported in All Maharashtra Reporter is not at all applicable to the facts of the present case.
Procedural History
The petitioner filed Special Civil Suit No. 43/10/A for eviction of the respondent from suit premises. During pendency, the petitioner filed an application for deposit of licence fee. The learned Civil Judge, Senior Division, Mapusa, dismissed the application by order dated 12.03.2012. The petitioner then filed the present writ petition under Article 227 of the Constitution of India challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 15-A, Order 20
- Constitution of India: Article 227
