COLOBA CENTRAL CO OPERATIVE CONSUMER WHOLESALE AND RETAIL STORES LIMITED ALIAS SAHAKAR BHANDAR Vs. KUSUMBEN KANTILAL SHAH

JUDGEMENT

(1.) THE petitioner is the original defendant in a suit which was instituted for eviction under section 41 of the Presidency Small causes Court Act, 1882 ("the Act" ). An agreement was entered into between the petitioner and the respondents as Trustees of a Public Trust registered under the Bombay Public Trusts Act, 1950. Under the terms of the agreement which was entered into on 6th January, 1989, a licence was conferred upon the petitioner to occupy an area on the ground floor of a building of the trust admeasuring 14,000 sq. ft. for a period of 10 years. The petitioner was under the terms of the licence agreement to pay commission at the rate of 1,?% on the sales of the stock-in-trade in the premises subject to a minimum of Rs. 50,000/- per month. The petitioner did not vacate the premises upon the expiry of the term stipulated in the agreement between the parties and thereupon a suit for eviction came to be filed under section 41 of the Act on 6th february, 2002. In the suit, apart from a decree for eviction, an interim order was sought requiring the petitioner to deposit in the Court, an amount of Rs. 77,37,282/- towards arrears of compensation and property taxes and to continue to deposit thereafter in the Court the amount as claimed. An interim notice was thereafter taken out by the respondents for an interim order of deposit. A valuation report dated 22nd October, 2002 was relied upon. By an order dated 20th December 2002, the learned trial Judge in the Court of small Causes has directed the petitioner to deposit an amount of Rs. 3,40,000/- per month from 6th January, 1999 until the decision of the suit. The respondents have been permitted to withdraw half of the amount so deposited. During the pendency of the suit, possession of the premises has been handed over by the petitioner to the respondents on 30th March, 2003. The order of the learned trial Judge is sought to be questioned in these proceedings under article 227 of the Constitution.

(2.) WHEN the petition came up for admission, a preliminary objection was raised on behalf of the respondents to its maintainability on the ground that the petitioner has an efficacious alternative remedy under section 42 (4) of the act. Section 42 (4) provides thus:

(3.) COUNSEL urged that the order which has been passed by the learned trial Judge was under the provisions of Order 15-A of the Code of Civil Procedure, 1908 as amended in 1990. A failure to comply with the order of deposit has serious consequences. The Court is empowered under the proviso to sub-rule (1) of Order 15-A to strike off the defence. Consequently, it is urged that an order passed by the learned trial Judge under sub-rule (1) of Order 15-A during the pendency of the suit under section 41 of the Act, is not merely a procedural order, but has serious consequences. Hence, the submission was that the order is revisable under section 42 (4) of the Act. On the other hand, counsel urged on behalf of the petitioner that the order of deposit by itself does not entail the consequence that the defence would be struck off. The defence thereafter, can be struck off only at the discretion of the Court and it is open to a party against whom such an order is sought, to show sufficient cause under sub-rule (2 ). In the circumstances, it was urged on behalf of the petitioner that no revision would lie against the order of deposit under sub-rule (1) of Order 15-A since that is merely a procedural order.