Smt Venkataiakshmi vs Smt P. Sudharani and Others

B.G. Path

In this writ petition, petitioner is aggrieved by the order dated 28.10.2011 passed by the Court below allowing I.A. No.1 filed by the plaintiffs respondents, thereby directing the defendant to pay a sum of Rs. 90,000/- to the plaintiff within one month from the date of the order.

The petitioner is the 2nd defendant in the suit The suit is filed by respondents 1 to 4 herein seeking enjoyment of the defendants, with a prayer for handing over vacant possession of the premises apart from payment of damages.

By Sling I.A. No.1, the plaintiff sought for a direction to the defendants to pay the ''accrued'' admitted damages in a man of Rs. 1,40,000/- from 01.07.2010 to 31.01.2011 for a period of seven months and for decreasing the suit in the event of failure of the defendant to pay the same.

In the affidavit filed in support of the application, the 2nd plaintiff contended that the defendant was a chronic defaulter in the matter of payment of rents. As agreed by the plaintiffs and defendants, the lease agreement was entered into on a monthly rent of Rs. 20,000/-. A quit notice was issued on 05.01.2010 calling upon the defendants to pay the arrears of rent and deliver vacant possession of suit schedule property and that defendarns were required to pay a sum of Rs. 30,000/- per month towards rent from the month of November 2009 till 1st of May 2009. Thereafter, the defendants were liable to pay the rent at the sate at Rs. 24,000/- from 01.05.2009 till 05.01.2010 i.e. the date of issue of quit notice. It was also asserted that the defendants were liable to pay Rs. 20,000/- from 03.01.2010 as damages, as the occupation of the defendants in the suit schedule properly had to be treated as unauthorised one from the date of termination of tenancy.

The affidavit discloses that the respondents-plaintiffs sought a total amount of Rs, 1,40,000/- as arrears towards the rent at the rats of Rs. 20,000/- per month from 01.07.2010 to 31.01.2011.

This application was objected by the 2nd defendant. The peyment of rent at Rs. 20,000/- per month was admitted. The other allegations made in the application were denied. He also asserted that the 2nd defendant had invested huge amount by taking business loan. It was also contended that the plaintiffs had no power and there was no jurisdiction to seek damages by way of interim application in the suit filed for ejectment.

On the bask of the pleadings, the trial Court has considered the matter and has came to the conclusion that admittedly the 2nd defendant was required to pay the rent at the rate of Rs. 20,000/- per month Though the plaintiffs had asserted that, subsequently the monthly rent had been enhanced to Rs. 24,000/-, the same was not taken note of for the purpose of interim application as it was the subject matter to be decided at a later stags. However, as the defendant had deposited a sum of Rs. 60,000/- before the trial Court giving deduction to the said amount of Rs. 60,000/-, the trial Court has directed the defendant to pay the remaining amount of Rs. 90,000/- by calculating the sum due and payable by the defendants at the rate of Rs. 20,000/- from 01.07.2010 till 31.01.2011, which cams to a total sum of Rs. 1,40,000/-

There is nothing to show that the petitioner-2nd defendant had paid/deposited the monthly rent during the course of the proceedings before the Court below. The defendant cannot be allowed to enjoy the property and at the same time contest the case filed for ejectment without depositing atleast the agreed amount which was to be paid as rent. Only because, the plaintiff while making the prayer in the application has styled it as damages, it cannot be amid, that they were not entitled for payment of the amount ordered.

the Court below has directed the 2nd defendant to pay the agreed rate of rent during the pendency of the suit As the said amount was not paid and only a part of the said amount was deposited, the application filed has been rightly allowed to that extent. I do not find any illegality in the order passed by the Court below. On the other hand, the order passed being Just and equitable, no interference is called for. Hence, the writ petition is dismissed.