SANGEETHA UPADHYAY Vs. CHITRANGADA

JUDGEMENT

(1.) This Civil Revision Petition arises out of order dated 02.02.2012 in I.A. No. 967 of 2011 in O.S. No. 1322 of 2011 on the file of the I-Senior Civil Judge, City Civil Court, Hyderabad. The respondent filed the abovementioned suit for eviction of the petitioner and payment of arrears of rent of Rs.96,000/-. Thereafter, the respondent filed I.A. No. 967 of 2011, under Order XV A CPC, for a direction to the petitioner to deposit the arrears of rent from November, 2010 till the date of filing the suit and to strike out the defence if the petitioner fails to deposit the arrears of rent. The petitioner filed a counter affidavit wherein she has admitted tenancy and enhancement of rent from Rs.7,000/- to Rs.12,000/- with effect from 01.01.2010 under Lease deed dated 10.01.2010. However, she has taken the plea that the petitioner and the respondent have entered into an agreement wherein the petitioner agreed to purchase the property for Rs.25,00,000/-, subject to the respondent getting the construction regularized within six months from 01.01.2010 and that if the respondent fails to get the same regularized, the parties will revert back to the original rent of Rs.7,000/-. The Lower Court, by order dated 02.02.2012, allowed the I.A. by directing the petitioner to deposit the sum of Rs.96,000/- towards arrears of rent from the month of November, 2010 to June, 2011 within 30 days from the date of the order. The Court further directed the petitioner to continue to pay the rent at Rs.12,000/- per month regularly till disposal of the suit.

(2.) At the hearing, Dr.H.C.Upadhyay, Learned counsel for the petitioner, strenuously contended that even though under Lease deed, dated 10.01.2010, the rent was enhanced to Rs.12,000/- from 01.01.2010, in view of the subsequent agreement between the parties and due to the failure of the respondent to get the construction regularized within six months, the enhanced rent stood reverted to the original rent of Rs.7,000/- and that as his client has paid the rent at enhanced rate till October, 2010, she has paid excess amount, which she is entitled to get refund. Learned counsel also strenuously contended that the Lower Court committed a serious error in entertaining the application of the respondent at a stage after framing of the issues and that such an application cannot be entertained after the first hearing of the suit. He placed reliance on the provisions of Order XV Rule 1 CPC and the judgment of the Bombay High Court in BSI Ltd. v 'CRISTIAN'-C[1], in support of his submission.

(3.) With respect to the first submission of the Learned counsel, the petitioner has Rs.12,000/- from 01.01.2010 under Lease deed dated 10.01.2010. She has however set up the plea that there was an agreement between the parties hereunder the respondent agreed to sell the same on receiving Rs.25,00,000/- subject to her getting the construction regularized within six months from 01.01.2010 and failing which the enhanced rent will be reduced to Rs.7,000/-. As observed by the Lower Court, no scrap of paper was produced by the petitioner in support of her plea. In the absence of any evidence prima facie establishing the plea of the petitioner, the agreed rent should be treated as Rs.12,000/- at the pre-trial stage. The petitioner can however adduce evidence in support of her plea in the trial. Therefore, the Lower Court is justified in accepting the plea of the respondent that the petitioner is Liable to deposit the rent @ Rs.12,000/- per month as stipulated in the Lease deed dated 10.01.2010 and no interference is called for with this finding.