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IN THE HIGH COURT OF BOMBAY
Smt. Sujata V. Manohar, J.
Sangeeta Prints.... Petitioners.
Versus
Hemal Prints others.... Respondents.
Writ Petition No. 3870 of 1984, decided on 6/8-3-1985.
Advocates appeared :
M.A. Rane, for petitioners.
D.K. Jha with S.M. Shah, for respondents 1 to 4.
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 41 - PROCEDURE FOR SUITS AND PROCEEDINGS - APPLICATION OF CIVIL PROCEDURE CODE - INHERENT POWERS OF COURT UNDER SECTION 151 - ORDER TO DEPOSIT ARREARS OF LICENSE FEE AND MESNE PROFITS - POWER OF COURT.
Fact of the Case:
The petitioners, a partnership firm, filed a suit under section 41 of the Presidency Small Cause Courts Act, 1882, for recovery of possession of premises and business from the respondents, who were licensees. The petitioners also sought recovery of arrears of royalty and mesne profits. The Small Causes Court refused to pass an order directing the respondents to deposit the arrears of royalty and mesne profits in Court.
Finding of the Court:
The Court held that under section 43 of the Presidency Small Cause Courts Act, 1882, the procedure prescribed by the Code of Civil Procedure, 1908, is applicable to suits and proceedings under section 41, except as otherwise provided in the Act. The Court further held that under section 151 of the Code of Civil Procedure, the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The Court also held that Order XV-A of the Code of Civil Procedure, which provides for deposit of arrears of rent and future rent by a lessee, can be extended to cases between a licensor and licensee by analogy.
Issues: 1. Whether the Court has the power to order a licensee to deposit arrears of license fee and mesne profits in Court pending the disposal of a suit under section 41 of the Presidency Small Cause Courts Act, 1882? 2. Whether the provisions of Order XV-A of the Code of Civil Procedure, which provide for deposit of arrears of rent and future rent by a lessee, can be extended to cases between a licensor and licensee?
Ratio Decidendi: 1. The Court held that under section 43 of the Presidency Small Cause Courts Act, 1882, the procedure prescribed by the Code of Civil Procedure, 1908, is applicable to suits and proceedings under section 41, except as otherwise provided in the Act. The Court further held that under section 151 of the Code of Civil Procedure, the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 2. The Court held that the provisions of Order XV-A of the Code of Civil Procedure, which provide for deposit of arrears of rent and future rent by a lessee, can be extended to cases between a licensor and licensee by analogy.
Final Decision: The Court set aside the order of the Small Causes Court and directed the respondents to deposit the arrears of license fee and mesne profits in Court in installments. The Court also directed the respondents to deposit monthly compensation from the date of the order until the disposal of the suit. The Court further held that in the event of the respondents committing a default in the payment of any three installments, the trial Court would be at liberty to strike off the defense of the respondents.
2. It is the case of the petitioners that under an agreement dated 17th November, 1977 they gave their business which was carried on in the said premises as well as the said premises to the respondents for the purpose of conducting the said business on the terms and conditions which are recorded in the said agreement. It was agreed between the parties under the said agreement that royalty at the rate of Rs. 1400/- per month would be paid by the respondents to the petitioners. This agreement was renewed by an agreement dated 6th November, 1978. Royalty however, was increased to Rs. 1500/- per month under this agreement. It seems that in October 1982 the respondent filed a declaratory suit in the Court of Small Causes at Bombay for a declaration that they were the tenants in respect of the said premises. This suit bears R.A. Declaratory Suit No. 5412 of 1982. The respondents also filed an application for standard rent in the year 1983.
3. The petitioners filed the present suit being LE C Suit No. 85/94 of 1983 under section 41 of the Presidency Small Cause Court Act, 1882 for recovering possession of the said premises as also the said business, furniture, article and other objects lying in the said premises as set out in the plaint. The petitioners have also prayed for recovery of a sum of Rs. 13,500/- being arrears of royalty from 1st of May, 1982 to 31st January, 1983 with interest there on at the rate of 18% per annum. They have also prayed for mesne profits and or/damages as from 1st of February, 1983 till possession is obtained by them as prayed.
4. The defendants that is to say, the respondents herein, filed their written statement on or about 2nd August, 1983. Thereafter the suit came up for scrutiny and direction before the Court of Small Causes at Bombay. At that page the petitioners sought directions from the Court to the effect that the respondents should deposit in Court arrears of royalty as also future royalty charges from month to month. The learned Judge of the Small Causes Court at Bombay, by his order dated 11th July, 1984, however, did not pass any order in this connection. He has come to a conclusion that since the suit is under section 41 of the Presidency Small Cause Courts Act, 1882 he as no power to pass an order of deposit because there is no specific provision under the Presidency Small Cause Courts Act, 1882 under which he can pass such an order. The learned Judge has held that there is no provision in this Act similar to section 11(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Hence he cannot make any interim order for deposit of compensation and/or masne profits.
5. The present petition is filed challenging this order. Since the suit is filed under section 41 of the Presidency Small Cause Courts Act, 1882, it is necessary to examine the provisions of the said Act.
Under section 9 of the Presidency Small Cause Courts Act, 1882 it is provided as follows :
"9. (1) The High Court may, from time to time, by rules having the force of law.---
(a) prescribe the procedure to be followed and the practice to be observed by the Small Cause Court either in super-session of or in addition to any provisions which were prescribed with respect to the procedure or practice of the Small Cause Court on or before the thirty-first day of December, 1894, in or under this Act or any other enactment for the time being in force; and
(aa) xx xx xx xx
(b) xx xx xx xx
(2) The law, and any rules and declarations made,
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