JUDGMENT :

A. S. Chandurkar, J.

Rule. Heard finally with consent of counsel for the parties. The challenge raised in the present writ petition is to the order dated 01/01/2019 passed by the learned Judge of the Small Causes Court thereby partly allowing the application moved by the present petitioners and directing the respondent to pay an amount of Rs.10,000/- per month as licence fees.

2. The facts in brief are that it is the case of the respondent-plaintiff that it is a Company duly registered under provisions of the Companies Act, 1956. It has occupied the property owned by the petitioners-defendants on Leave and Licence basis under an agreement dated 01/10/2011. As per that agreement which is duly registered the respondent is liable to pay an amount of Rs.10,000/- per month as licence fees. After every eleven months the licence fees are liable to be increased by 7.5% per annum. According to the plaintiff its servants and agents were not being permitted to enjoy the suit property on the ground that the Company had not paid the license fees and maintenance charges as demanded by the defendants. Hence it filed a suit for a declaration that the defendants had violated the terms of the agreement dated 11/10/2011 and that it was not entitled to collect maintenance charges from the defendants. Other ancillary reliefs were also sought in the said suit.

3. Written statement was filed by the defendants in which it was denied that the servants and agents of the Company were being prevented from enjoying the suit premises. In addition a counter-claim for recovery of possession alongwith arrears of licence fees was also filed. It was pleaded that the Leave and Licence agreement had expired on 20/06/2014 but the vacant possession of the suit premises had not been handed over back. Further a separate agreement for payment of maintenance charges dated 10/10/2011 had been entered into on the basis of which the plaintiff was required to pay an amount of Rs.25,000/- per month for the amenities provided in the suit property.

4. During pendency of the suit the defendants moved an application below Exhibit-82 invoking the provisions of Order XV-A of the Code of Civil Procedure, 1908 (for short, the Code) in which it was prayed that the plaintiff be directed to deposit arrears of licence fees including maintenance charges. It was stated that amount of Rs.40,446/- was liable to be paid per month in that regard. In reply as filed it was denied that the plaintiff was in arrears of the said amounts. The licence fees were being deposited regularly. By the impugned order the learned Judge of the Small Causes Court partly allowed the said application. The plaintiff was directed to pay licence fees of Rs.10,000/- per month. The prayer for paying maintenance charges was not granted on the ground that same required evidence to be considered. The defendants being aggrieved by that part of the order refusing to direct the plaintiff to pay maintenance charges have challenged the same.

5. Shri R. M. Sharma, learned counsel for the petitioners submitted that the trial Court was not justified in refusing to direct the plaintiff to pay maintenance charges especially when same was liable to be paid along with licence fees. He referred to both the agreements dated 10/10/2011 and submitted that it had been clearly stated in the agreement for payment of maintenance that non-payment of that amount would also result in terminating Leave and Licence agreement. He referred to the written statement filed by the plaintiff to the counter-claim in which it was admitted that maintenance charges of Rs.25,000/- per month were payable. According to him the plaintiff could not be permitted to enjoy various amenities while occupying the suit premises without paying the maintenance charges. He placed reliance on the decision in Dr Rajesh s/o Niranjan Singhania vs. Surajmal s/o Karnidanji Dhadiwas (Since deceased Thr. LRs), (2009) 3 AllMR 696 and submitted that the application at Exhibi