Madhya Pradesh High Court
Shyamlal Agrawal And Ors. vs Sardar Gurubachan Singh on 7 October, 1998
Equivalent citations: 1999(2)MPLJ288
ORDER S.C. Pandey, J.
1. This revision is directed against the order dated 1-5-1993, passed by 1st Additional District Judge, Raipur, in Civil Suit No. 111-A/91, whereby the trial Court has rejected the application filed by the applicants against the non-applicant under Section 13(6) of the M. P. Accommodation Control Act, 1961 (henceforth 'the Act'). It is not in dispute that the non- applicant has not deposited the rent after he was served with notice of demand and, thereafter, with summons. As per Section 13(1) of 'the Act', he was required to deposit the arrears of rent within the one month of receipt of summons. He could also apply for extension of time for deposit of arrears of rent after expiry of one month and having obtained extension, he was required to deposit future rent of each succeeding month by every fifteenth day. The non-applicant did not take any step to deposit the rent and, therefore, the applicants filed an application for striking out the defence under Section 13(6) of 'the Act'.
2. The non-applicant opposed this application. In his reply, he stated that he is not the tenant of the applicants. It was claimed that he was not the tenant of the vendor of the applicants. The non-applicant claimed that he was in possession of the suit house by virtue of an agreement to sell dated 18-8- 1982 from one Amarjeet Singh Chhabra for a consideration of Rs. 65,000/- (Rupees Sixty-five Thousand). It was further stated that he had paid an advance of Rs. 11,100/- (Rupees Eleven Thousand One Hundred) to Amarjeet Singh Chhabra. The non-applicant further claimed that Amarjeet Singh Chhabra had committed breach of contract and therefore, he had filed Civil Suit No. 21-A/85 for specific performance of contract dated 18-8-1982. For all these reasons, he was not bound to deposit the rent under Section 13(6) of the Act.
3. The trial Court accepted the contention of the non-applicant and refused to strike out the defence, despite the fact the non-applicant did not deposit the rent in the Court nor did he show any desire to deposit the rent.
4. This revision was filed on 22-7-1993. This revision was not accompanied by a certified copy of the impugned order dated 1-5-1993. The revision was filed within ninety days of the order, therefore, it would be within limitation. When the revision application was filed, the office should have checked out and raised an objection that certified copy of the impugned order has not been filed and directed the counsel for the applicants to file the certified copy. However, the office omitted to note the defect in the revision application. It is further pointed out to me that there is no order of this Court calling for the original record of the Court below. However, the record of the Court below was called on the basis of an order signed by the Deputy Registrar on 1-9-1993. The rules do not provide that Deputy Registrar would himself call for the record of a case. In held-up cases, the original record is never called unless it is directed by the Court. But, right or wrong, the office has called the original record of the case. It is too late in the day to call for an explanation to find out in what circumstances the original record of the Court below was called. However, the attention of the Additional Registrar (J) is directed to this event so that this practice may not be repeated.
5. Learned counsel for the non-applicant naturally contended that this revision is not maintainable. In ordinary circumstances, this Court would have accepted the contention of learned counsel for the non-applicant, but it appears that by order dated 26-4-1995 a show cause notice was issued to the non-applicant without noticing the defect in the revision application. It appears to this Court that on 26-4-1995 itself, this Court may have overlooked the defect and issued the show cause notice since the original record was with this Court. This Court has ample power under Section 115 of the Civil Procedure Code to issue notice suo motu. That apart, it would be too technical an objection on the part of the non-applicant to say that this revision should be dismissed on the ground that the revision application was not accompanied by a certified copy of the impugned order. This Court can suo motu consider the impugned order from the original record of the Court below for deciding the case on merits. In the opinion of this Court, it would not be in the interest of justice to punish the applicants with dismissal of the revision merely on the ground that the office summoned the original record without verifying that fact that the applicants had not filed the certified copy of the impugned order. The mistake of the office can also be treated as mistake of the Court itself and it is well established that the mistake of the Court cannot harm any party.
6. It is clear from the facts of this case that the non-applicant did not want to deposit the rent and, therefore, it was claimed by the applicants that the defence be struck off. The non-applicant relied on the fact that there is an agreement dated 18-8-1982 in his favour. This is a contract of sale between Amarjeet Singh Chhabra and the non-applicant. In other words, the non- applicant claimed that he was entitled to claim possession of the suit house on the basis of the aforesaid contract of sale and he is not a tenant of the applicants, who had purchased the suit house from Amarjeet Singh Chhabra. This defence can be taken by the non-applicant under the general law. If the non-applicant thinks that he can succeed by raising such a plea in landlord tenant suit, he is free to do so. His general defence is not liable to be struck off, for the reason, it is well established that under Section 13(6) of the Act only defence under Section 12 of the Act is liable to be struck off as was held by Division Bench of this Court in the case of Premdas v. Laxmi Narayan Pande, reported in 1964 MPLJ 190, which was subsequently followed by another Division Bench of this Court in the case of Kewal Kumar Sharma v. Satish Chandra Gothi and Anr., reported in 1991 MPLJ 458. However, in case, the non-applicant seeks to raise an alternative defence under Section 12 of 'the Act', then he is bound to deposit the rent as provided under Section 13(1) of 'the Act'. He cannot escape by saying that the Court should not exercise its power of striking out the defence under Section 13(6) of 'the Act'. Under the facts and circumstances of the case, learned counsel for the non- applicant strenuously argued that the Court has discretion not to strike out the defence under Section 13(6) of 'the Act' and there were good grounds for doing so. In the opinion of this Court, the Court cannot rely on its discretion in favour of the person who does not want to deposit the rent. It is true that the word 'May' has been used in Section 13(6) of 'the Act', but discretionary power can be used in favour of a person for extension of time, who claims to be a tenant and is ready and willing to comply with Section 13(1) of 'the Act'. A decision has been relied upon by learned counsel for the non-applicant in the case of Bimal Chand Jain v. Sri Gopal Agarwal, reported in (1981) 3 SCC 486. That decision is distinguishable. The Supreme Court, in that case, considered Rule 5(2) of Order 15 of the Code of Civil Procedure as amended by U. P. Act No. 57 of 1976, which provided that representation be made within the prescribed time. It was held under Sub-Rule (2) of Rule 5 of Order 15 of the Civil Procedure Code, if a representation contemplated was not made within the time prescribed, the Court had still jurisdiction not to strike out the defence. In effect, it overruled the decision of the High Court holding that beyond the time prescribed under Sub-Rule (2) of Rule 5 of Order 15 of the Civil Procedure Code, the Court could not exercise discretion in favour of a tenant. That case is distinguishable inasmuch as the tenant therein, wanted to deposit the rent, was seeking extension of time for making representation. Moreover, the Supreme Court was of the view that the Court was not bound to strike out the defence if there be other material on record. Rule 5 of Order 15 of the Civil Procedure Code is not similar to Section 13(1) of 'the Act'. In the opinion of this Court, discretion under Section 13(1) of the Act cannot be exercised in favour of a tenant, who does not want to deposit the rent on the ground taken by him in his written statement that there is no relationship of landlord and tenant. The non-applicant here wants to take advantage of raising a defence under Section 12 of 'the Act', which is conditional on depositing of rent. Without depositing the rent, a tenant cannot be permitted to raise a defence under Section 12 of 'the Act'. If he does not want to deposit the rent, he purports to rely on his defence under the general law. If the non- applicant wants to raise a defence under Section 12 of the Act, he is bound to deposit the rent, otherwise his defence is liable to be struck off.
7. Looking to the facts and circumstances of the case, the impugned order dated 1-5-1993 is hereby set aside and the non-applicant is granted two months' time from today to deposit all the arrears of rent and comply with the provisions of Section 13(1) of 'the Act' thereafter. In case, he does not do so, his defence under Section 12 of 'the Act' will be struck off. Consequently, the revision is partly allowed. The office is directed to send back the record of the case immediately. The parties are directed to appear before the trial Court on 7-12-1998.