Civil Revision Application No. 127 of 1996

20th January, 1997

Petitioner Counsel: Shri S.D.LOTLIKAR
Respondent Counsel: Shri M.S.SONAK

Cases Cited:
Civil Rev.App.No.20/1996 [Para 5]
AIR 1986 Bom 423 [Para 6]
AIR 1962 SC 527 [Para 9]
AIR 1921 Mad 599 (FB) [Para 9]
1983 Mah. L.J. 88 [Para 9]

JUDGMENT

JUDGMENT :- Admit. With consent of learned Advocates for the parties, heard forthwith.

2. The respondent (plaintiff in the suit) had filed an application under order 15A read with section 151 C.P.C. for a direction to the petitioners (defendants in the suit) to deposit the value of 300 maunds of cashew nuts amounting to Rs.91,800/- which amount, according to the petitioners, was admittedly being paid to the respondent till the year 1990. This application was opposed by the petitioners on the ground that Order 15A C.P.C. was not attracted; that the petitioners had become deemed owners by virtue of Fifth Amendment Act to the Goa, Daman and Diu Agricultural Tenancy Act, 1964; that proceedings are already pending before the Mamlatdar regarding declaration of tenancy wherein the Mamlatdar has restrained the respondent from interfering with the possession of the suit property of the petitioners.

3. It may also be pointed out at this stage, that even the civil court had in the same proceedings come to the conclusion that the respondent was not in possession of the suit property and had refused to grant injunction in favour of the respondent. An Appeal was filed by the respondent against the said order but the appeal was dismissed. However, in the said appeal learned advocate Shri Lotlikar had stated that his clients namely the petitioners will deposit in the court 300 maunds of cashew nuts or value thereof; the value of 300 maunds of cashew nuts was determined at Rs.91,800/- by the trial court and the petitioners accordingly deposited the said amount for the year 1990-91. Initially the suit had been filed for permanent injunction. However, after appeal against dismissal of injunction order by this court, the respondent sought amendment adding prayer for recovery of possession and for direction for payment of mesne profits for the years 1989-90, 1991-92, 1992-93, 1993-94 and further mesne profits due at the rate of 300 maunds of cashew nuts per year till actual restoration of the suit property.

4. The petitioners, being aggrieved, on account of determination of value of 300 maunds of cashew nuts at Rs.91,800/- vide order dated 20-11-90 had preferred Civil Revision Application No.21/91. In this revision, it was observed by Pendse, J. that the suit being for injunction and recovery of money, it would be difficult to direct the defendants on the strength of the statement made by the counsel in Appeal from Order to make deposit of 300 maunds or value thereof till disposal of the suit, but in respect of subsequent years, it would be open for the respondent to make an application before the trial court who will pass appropriate order after hearing the parties and without taking into consideration the statement made by learned counsel for the petitioners at the time of hearing Appeal from Order No.26/90. It was after this order that the amendment, as already referred above, had been sought which was granted and thereafter the application in question was filed. The trial court relying upon Order 15A, which was inserted by High Court Amendment (Bombay) directed the petitioners to deposit a sum of Rs.4,76,064/- being mesne profits for the years 1991-92, 1992-93 and 1993-94. The lower court further ordered that further mesne profits at the same rate shall be deposited until the suit is decided on merits.

5. The Learned Advocate Shri Lotlikar, appearing on behalf of the petitioners, submitted before me that neither Order 15A nor section 151 C.P.C. is attracted in this case since the respondent does not admit that the petitioners are lessees of the suit property; that the petitioners claim to be tenants of the suit property and deemed purchasers in view of the Fifth Amendment to Goa, Daman and Diu Agricultural Tenancy Act, 1964 and in this respect the proceedings are pending before the Mamlatdar who has even granted injunction restraining the respondent from interfering with the possession of the petitioners. He also relied upon a judgment of this court in Shri Shashikant Karbotkar v. Shri Suresh R. Karbotkar and others (Civil Revision Application No.20/1996) in support of the proposition that if the case is not covered under Order 15A, no relief can be granted to the respondent under section 151 C.P.C.

6. On the other hand, learned advocate Shri Sonak submitted before me that even if it is found that Order 15A is strictly not applicable to the facts and circumstances of the case, on the principles analogous contained in Order 15A C.P.C., directions can be given to the petitioners to deposit the admitted amount according to the petitioners which was being paid to the respondent till the year 1990. In support of his submission, he relied upon a judgment of this Court in Sangeeta Prints v. Hemal Prints and others (A.I.R. 1986 Bombay, 423).

7. The case of the respondent is that they are owners of the suit property and every year cashew trees were being auctioned and the highest auction bidder was permitted to collect cashew nuts and cashew apples from the suit property after paying the auction money. According to the respondent, this practice was followed every year and in the year 1987-88, the auction was taken by the petitioners. Their case further is that the petitioners were in arrears of auction bid for the year 1987-88 amounting to Rs.14,437.28 and for the year 1988-89 amounting to Rs.38,734.20 and, as such, for the year 1989-90 season, the petitioners were not permitted to bid at the auction as they had failed to pay arrears of bid amounting to the tune of Rs. 53,171.48.

8. On the other hand, the case of the petitioners, in the written statement filed on 9th April, 1990, is that they are enjoying the suit property since the year 1972 by paying rent of 300 maunds of cashew seeds. It was further contended by them in para 7 of the written statement that they are in enjoyment and possession of the suit property at tenants paying rent regularly till this date. Form I and XIV of the suit property does not in fact show the names of the petitioners in the 'tenants column' or in 'other rights column' and the petitioners have filed proceedings for declaration of tenancy before the Mamlatdar which are still pending. The tenancy of cashew gardens is protected since 1971. Such protection was initially available under Goa, Daman and Diu Protection of Rights of Tenants (Cashewnut and Arecanut Gardens) Act, 1971 and thereafter under the Goa, Daman and Diu Agricultural Tenancy Act after coming into force of the Fifth Amendment Act w.e.f. 1976. The petitioners never approached any authority under the said Act for declaration of their tenancy rights and for the first time such claim is put up in the written statement filed in April, 1990. Therefore, at this state there is in fact, nothing prima facie to substantiate their claim of tenancy except for their own contention that they are tenants of the suit property. However, the petitioners are in possession of the suit property and are reaping benefits from the same. Even if the case may not strictly fall under Order 15A, in the facts and circumstances of the case, I am satisfied that a direction is required to be made for deposit of the admitted amount which was being paid by the petitioners to the respondent.

9. In Sangeeta Prints v. Hemal Prints and others (supra) which had arisen prior to amendment of Order XVA as it then stood and the words "or a licensor....... or a licensee" had not been added, the question which arose was whether the court had power to pass an interim order requiring a licensee to deposit arrears of royalty and/or charges and/or mesne profits in the court pending disposal of the suit. Admittedly Order XVA, as it then existed, did not cover suits filed by licensor against a licensee. Relying upon judgment of the Apex Court in the case of Manoharlal Chopra v. Rai Bhadur Rao Raja Seth Hiralal (A.I.R. 1962 S.C. 527), a Full Bench decision of the Madras High Court in Muthia Chettiar v. Govinda Doss reported in A.I.R. 1921 Madras, 599 and Chandrakant Shankarrao Deshmukh v. Haribhau Tukaramji Kathane reported in 1983 Mah. L.J., 88, it was held by Smt. Sujata Manohar, J. (as she then was) that by parity of reasoning and anology, similar orders could be passed between licensor and licensee under section 151 read with Order 39 Rule 10 C.P.C.

10. Therefore, I do not see any impediment as to why similar order directing the petitioners to deposit the admitted value of three mounds of cashew nuts which, according to them, was being paid to the respondent could not be issued in the case under consideration especially when the petitioners are in possession of the suit property and are reaping benefits of the same. The contentions of the parties are yet to be decided on merits and by very nature the proceedings will take a long time for settlement. The ruling of this Court upon which reliance has been placed by learned Advocate Shri Lotlikar does not in fact help the petitioners' case at all. In the said case, plea for direction to deposit royalty had been rejected on merits. I, therefore, do not find any merit in the submissions advanced by learned Advocate Shri Lotlikar before me.

11. Learned Advocate Shri Lotlikar next contended that the civil court cannot strike the defence of the petitioners who have taken the plea of tenancy under the Goa, Daman and Diu Agricultural Tenancy Act, 1964 and the civil court has no option but to stay the proceedings and refer the tenancy matter to the Mamlatdar. On this aspect learned Advocate Shri Sonak submitted before me that the petitioenrs are bound to comply with the directions of the civil court and in case the directions are not complied with, the defence can be struck off. I find merit in the contention of learned Advocate Shri Sonak and I am prima facie of the opinion that the civil court can strike off the defence in case directions issued by it under Order XVA or for that matter under section 151 C.P.C. are not complied with. In Sangeeta Prints v. Hemal Prints (supra) Order XVA as it then existed did not apply to the case of licensor and licensee, yet extending the principle incorporated in Order XVA, licensee was directed to deposit arrears of royalty and it was further directed that in the event of licensee making default in depositing arrears, the trial Court will be at liberty to strike off the defence, but before striking off the defence, the trial court will follow the procedure prescribed in sub-rule (2) of Order XVA. Accordingly, I do not find any merit in the contention of learned Advocate for the Petitioner.

12. For the reasons mentioned above, I do not find any merit in this revision and the revision is hereby dismissed with costs. The petitioners are granted one month's time to deposit the amount under the impugned order in the trial court and on failure to deposit, the court shall be free to take action in the matter in accordance with law.

Interim order granted on 8-11-96 is hereby vacated.

Revision dismissed