Madhya Pradesh High Court
Rajesh Goel vs Smt. Mullo And Ors. on 4 May, 2000
Equivalent citations: 2000(3)MPHT520
JUDGMENT S.P. Srivastava, J.
1. Heard the learned counsel for the plaintiff-appellant as well as the learned counsel representing the defendants-respondents.
2. Perused the record.
3. The plaintiff-appellant had filed a suit being Original Civil Suit No. 28-A of 1984 against Kamarlal Soni praying for a decree of his eviction from the premises in dispute which was under his tenancy and further a decree for recovery of arrears of rent and damages for use and occupation. The aforesaid suit had been filed on the grounds envisaged under Sections 12 (1) (a) and 12 (1) (o) of the M.P. Accommodation Control Act. The plaintiff had alleged that the defendant, Kamarlal, had defaulted in the payment of rent for the period subsequent to 31-10-1981.
4. The trial Court on an appraisal of oral and documentary evidence brought on record came to the conclusion that relationship of landlord and tenant existed between the plaintiff and the defendant and the premises in dispute had been let out to the defendant at a rental of Rs. 40/- per month. The trial Court further, came to the conclusion that the defendant had failed to prove that any amount of rent due for the period subsequent to 1-11-1981 had been paid to the plaintiff within the time in spite of the service of the notice. In other words, the defendant was found to be a defaulter within the meaning of Section 12 (1) (a) of the M.P. Accommodation Control Act. However, since the defendant had complied with the conditions stipulated in Section 13 (1) of the aforesaid Act the trial Court relieved him from the decree of eviction exercising the jurisdiction envisaged under Section 12 (3) of the aforesaid Act which provides that no Order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13 (1) of the Act.
5. So far as the question regarding the availability of the ground envisaged under Section 12 (1) (o) of the M.P. Accommodation Control Act was concerned, the trial Court came to the conclusion that the plaintiff had succeeded in establishing the aforesaid ground as well. But, exercising the jurisdiction envisaged under Section 12 (11) of the Act which provides that no Order for the eviction of a tenant shall be made on the ground specified in Clause (o) of Sub-section (1), if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portions of accommodation not let to him and pays to the landlord such amount by way of compensation as it may direct, specified a period of two months from the date of the judgment to vacate the portion in dispute and pay to the landlord damages at the rate of Rs. 10/- per month for that portion of accommodation which had been taken possession of though not included in the accommodation let out to him.
6. The aforesaid decree passed by the trial Court was challenged by the plaintiff in a First Appeal which was filed on 26-11-1987. The notices of the appeal were duly served on the defendant who was represented by Shri Dandotiya, Advocate, who filed his appearance in the appeal on his behalf on 18-11-1988. On 5-10-1989 the plaintiff-appellant moved an application under Section 13 (6) of the M.P. Accommodation Control Act asserting that the defendant-respondent had not deposited the decretal amount i.e., the amount due under the decree passed by the trial Court and has also defaulted in depositing or paying the entire amount of rent due for the period subsequent to the date of decree and it was asserted that since during the pendency of the appeal the mandatory requirements contemplated under Section 13 (1) of the Act had not been complied with by the defendant his defence may be struck off. A copy of the aforesaid application was duly served on the counsel for the defendant, but in spite of several opportunities having been provided no objections were filed denying or controverting the assertions made by the plaintiff.
7. It may further be noticed that on 14-11-1991 an application duly supported by an affidavit was filed by the plaintiff-appellant during the pendency of the appeal asserting that the defendant had not complied with that part of the decree passed by the trial Court which required him to vacate the premises within two months from the date of the judgment and had also failed to pay the amount of damages. A copy of the aforesaid application and affidavit filed in support thereof was duly served on the counsel for the defendant, but no counter-affidavit controverting the allegations made therein was filed.
8. During the pendency of the appeal Kamarlal Soni, the original defendant died and his heirs and legal representatives, which included Bhagirath Prasad Soni, were brought on record vide the Order of the appellate Court dated 21-4-1992, after due service of the appeal on the heirs and legal representatives of deceased Kamarlal. Since, in spite of service of notices on the heirs and legal representatives of Kamarlal Soni, since deceased, they had not appeared, the Order proceeding ex-parte against them was passed on 21-4-1992. The appeal was ultimately heard on 9-11-1992. On 16-11-1992 the First Appellate Court vide its judgment and Order of that date dismissed the appeal maintaining the decree of the trial Court. It was thereafter that the plaintiff filed the present second appeal feeling aggrieved by the decree of the First Appellate Court.
9. The present second appeal was admitted on 22-7-1993 and the learned Single Judge while admitting the appeal framed the following substantial questions of law:
(1) Whether the tenant is required to deposit a monthly rent during the pendency of appeal as the appeal is in the continuation of the suit ?
(2) Whether non-depositing of the rent by the tenant would entail striking up of his defence ? and (3) Whether the suit filed for eviction and for claiming arrears of rent shall be dismissed on the tenant's depositing the due rent or it has to be decreed with regard to the arrears and costs of the suit ?
10. Before proceeding further it may be noticed that from the documents filed alongwith the reply submitted by the plaintiff in opposition to the application for recalling of the judgment and decree dated 10-12-1996 passed in this appeal earlier, which application was allowed vide the Order dated 5-1-1999, the Second Additional Civil Judge, Class II, in his Order dated 3-11-1998, in the Execution proceedings had noticed that the judgment debtors which included Mullobai, the widow of Kamarlal Soni, the original tenant and Mohan Soni the present respondent No. 4 one of the heirs of Kamarlal Soni, had given an undertaking that they will vacate the premises in dispute by 20th of August, 1997 and will handover vacant possession to the decree-holder and in case they did not do so the decree could be straightway executed. This undertaking was given clearly stating that the undertaking was not only on their behalf but also on behalf of the other heirs and legal representatives of the deceased Kamarlal, the original defendant. A perusal of the Panchnama executed on that date, a certified copy of which was filed on record, indicates that the decretal amount had not been deposited by the judgment debtors and they had showed their inability to deposit any amount due under the decree.
11. The learned counsel for the appellant has strenuously urged that in the present case the defendant-tenant had failed to comply with the mandatory requirements envisaged under Section 13 (1) of the M.P. Accommodation Control Act as it stood amended w.e.f. 16-8-1983. It is urged that the provisions contained in Section 13 (1) of the Act cast a liability on the tenant to deposit within one month of the service of the notice of the appeal or within such further time as the Court may on an application made to it allow in this behalf deposit or pay to the landlord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be.
12. The contention is that the defendant tenant in spite of the service of the notice of the appeal had failed to deposit or pay the amount complying with the conditions envisaged under Section 13 (1) of the Act which are of a mandatory nature and when in spite of the aforesaid facts having been brought to the notice of the respondent-tenant by moving an application under Section 13 (6) of the Act nothing was done by the tenant to get relieved of the statutory liability which stood cast upon him with the result that his defence against eviction was liable to be struck off and the appeal was required to be heard taking that no defence to eviction had been put in.
13. In the aforesaid connection it may be noticed that Section 13 (6) of the Act provides that if a tenant fails to deposit or pay any amount as required by this Section, the Court may Order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceeding, as the case may be.
14. In fact, it is the suit which is to be taken as pending in the shape of the appeal filed under Section 96 of the Code of Civil Procedure. The legislative intent underlying the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act as it stood amended w.e.f. 16-8-1983 is very much clear. The aforesaid provision casts a statutory liability on the tenant, who is a respondent in such an appeal to comply with the conditions stipulated in Section 13 (1) of the Act within one month of the service of the notice of the appeal. The failure to comply with the requirements envisaged under Section 13 (1) of the Act in the event of a pending appeal filed under Section 96 C.P.C. entails serious consequences vesting the Court of appeal with ample jurisdiction to strike out the defence put in by the tenant against his eviction and proceed with the hearing of the appeal.
15. I must hasten to add that the provisions contained in Section 13 (6) of the Act vests the appellate Court with a discretionary jurisdiction. In case, sufficient ground has been made out for condoning any default in making the deposits as envisaged under Section 13 (1) of the Act the appellate Court could refuse to strike out the defence against eviction and proceed to hear the appeal on merits of the defence put in against eviction. This discretion of course has to be exercised not in an arbitrary manner but on sound judicial principles keeping in mind that though M.P. Accommodation Control Act is a beneficient piece of legislation to protect the interest of the tenant sufficient care has been taken under the provisions of the Act to protect the interest of the landlord as well.
16. Being seized with a beneficient piece of enactment we have to take a view which would advance the object and purpose of the Act. In this connection it must be emphasised that whatever protection the Rent Acts give they do not give blanket protection for non-payment of rent. This basic minimum has to be complied with by the tenants. Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent. Reference in this connection may be made to the observations made by the Apex Court in its judgment in the case of Madan Mohan and Anr. v. Krishan Kumar Sood, reported in JT 1993 (1) SC 162.
17. In the present case what I find is that the principle that an appeal is a continuation of the suit has been given a statutory recognition for the purposes of the Rent Control Act and in face of the clear cut and unambiguous provisions contained in Section 13 (1) of the Act the tenant is required to deposit the monthly rent during the pendency of the appeal challenging the decree of the trial Court filed by the plaintiff. In view of what has been indicated hereinabove the first substantial question of law framed in this appeal is answered in the affirmative in favour of the plaintiff-appellant.
18. So far as the second substantial question of law is concerned in fact it is consequential to the answer to the substantial question of law No. 1. The non-deposit of the amount due including the rent as contemplated under Section 13 (1) of the M.P. Accommodation Control Act may entail striking out of the defence against eviction. In case the Appellate Court exercising its discretionary jurisdiction envisaged under Section 13 (6) of the Act condones the default in the making of the required deposits after considering the sufficiency of the cause shown by the tenant which prevented him from making the required deposit. In case, however, where no cause is shown at all or in a case where the cause shown is not found to be sufficient the Appellate Court is left with no option except to strike out the defence against eviction set up by the defendant. The second substantial question of law is answered accordingly.
19. So far as the third substantial question of law is concerned, it may be noticed that the deposit of due rent by the tenant as contemplated under Section 13 (1) of the Act has to precede the date of delivery of the judgment, and the deposits which are required to be made complying with the requirements envisaged under Section 13 (1) of the Act as made applicable to the appeals have to be made during the period anterior to the hearing of the appeal on merits. The question as to whether the tenant has put in a defence against eviction and what is the merit in that defence has to be considered at the time of the hearing of the appeal itself. In the event of there being default in complying with the mandatory requirements stipulated in Section 13 (1) of the Act, in the absence of any Order condoning the default, the defence against eviction is liable to be struck out with the result that at the time of the hearing of the appeal the Appellate Court has to proceed and decide the appeal on the basis that no defence against eviction has been put in. In a situation, like this obviously the suit filed for eviction and claiming the arrears of rent cannot be dismissed on the tenants' depositing the due rent subsequent to the hearing of the appeal and the question in regard to condonation of delay in making the deposit cannot arise in such a situation. The decree for eviction even in the absence of any defence against eviction may or may not follow as it is for the plaintiff to establish the plaint case. In the event where the plaintiff has successfully established his case there can be no impediment in the grant of the decree for eviction where the defence against eviction is not available to the defendant in the circumstances envisaged under Section 13 (6) of the Act. The third substantial question of law is answered accordingly.
20. There is yet another aspect of the matter. As has already been noticed hereinabove, it had been brought to the notice of the First Appellate Court that the defendant-tenant had not complied with that part of the decree whereunder the trial Court had granted two months time from the date of the judgment as provided under Section 13 (11) of the M.P. Accommodation Control Act. In this view of the matter the protection envisaged under the aforesaid provision having not been availed of by the tenant within the time stipulated in the decree passed by the trial Court which part of the decree has not been disturbed even by the First Appellate Court, there could be no impediment in the grant of a decree for eviction as prayed for by the plaintiff. The fact that there had been no compliance of the aforesaid part of the decree is apparent from a perusal of the Panchnama filed before the Executing Court and the Order of the Executing Court to which a reference has already been made hereinabove.
21. The finding of the First Appellate Court that it was not necessary for the tenant to deposit the rent during the pendency of the appeal is based on an entirely erroneous assumption and total non-application of mind to the statutory provisions contained in Section 13 (1) of the M.P. Accommodation Control Act. In view of my conclusions indicated hereinabove this finding is reversed.
22. The other finding of the Appellate Court that it was for the plaintiff to prove that the defendant had not deposited the rent during the pendency of the appeal and this burden of proof had not been discharged is concerned it may be noticed that this finding is also based on totally erroneous assumptions. In this connection suffice it to say that the plaintiff could not be expected to prove the negative. He had moved an application specifically bringing to the notice of the First Appellate Court that the defendant-tenant had not deposited any amount of rent during the pendency of the appeal and had not paid any amount to him. Even the assertions made in the application that amount due under the decree had not been paid to the plaintiff and the assertions made in the application filed under Section 13 (6) of the Act had remained unrebutted and uncontroverted. The fact that the benefit extended by the trial Court to the tenant exercising the jurisdiction envisaged under Section 13 (11) of the Act had not been availed of and nothing was done to comply with the requirements within the time prescribed by the trial Court had also been brought to the notice of the First Appellate Court. The assertions made in the affidavit filed by the plaintiff had neither been controverted nor rebutted. In the aforesaid circumstances the onus of proof which initially rested on the plaintiff stood amply discharged and had shifted on to the defendant to prove that he had complied with the requirements envisaged under Section 13 (1) of the Act, and further that he had complied with the requirements contemplated under Section 13 (11) of the Act within the time specified by the trial Court, so far as the ground envisaged under Section 12 (1) (o) of the Act was concerned. The defendant had totally failed to do so. The status of the defendants in the facts and circumstances of the present case was that of joint tenants. The position in law in this regard is amply clear from the observations made by the Apex Court in its decision in the case of Harish Tondon v. Addl., District Magistrate, Allahabad, U.P. and Ors., reported in (1995) I SCC 537.
23. In the aforesaid view of the matter and the conclusions indicated hereinabove, this appeal succeeds. The impugned decree passed by the trial Court, as confirmed by the First Appellate Court, is modified. The suit of the plaintiff for eviction of the tenant shall stand decreed as prayed, but so far as the decree for the recovery of arrears of rent and damages for use and occupation etc. is concerned the tenant will be entitled to the adjustment of the amount deposited by him towards rent during the pendency of the suit in the trial Court.
24. The trial Court is directed to proceed with the execution of the decree accordingly.
25. There shall, however, be no Order as to costs so far as the present second appeal is concerned.