Madhya Pradesh High Court
Harishankar Sharma vs Shrikrishan Dubey on 31 October, 2007
Equivalent citations: 2008(1)MPHT223
Author: P.K. Jaiswal
Bench: P.K. Jaiswal
JUDGMENT P.K. Jaiswal, J.
1. Heard on admission.
2. This appeal is directed against the eviction of the appellant on account of default of payment of rent under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961 (for short 'the Act').
3. The appellant took a disputed house on rent at the rate of Rs. 2300/- per month and executed rent note dated 1-10-1998 vide Exh. P-7. He failed to pay the rent from February, 1999 and therefore notice was issued vide Exh. P-2, dated 8-6-1999 by registered post. The appellant failed to pay the arrears of rent within a period of two months. The respondent filed a suit for ejectment on 13-8-1999 on the ground under Section 12(1)(a)(b) and (e) of the Act. The appellant in spite of receipt of summons failed to pay the rent within a period of one month from the date of receipt of summons and raised a dispute regarding the rate of rent and quantum of arrears of rent under Section 13(2) of the Act. The Trial Court vide order dated 28-8-2000 decided the dispute and fixed the provisional rent at the rate of Rs. 2300/- per month and directed the appellant to deposit all the arrears of rent with effect from February, 1999 within a period of one month from the date of order and also directed the appellant to pay or deposit the future rent, month by month. He failed to deposit the arrears of rent in time as directed by the Trial Court on 28-8-2000 and filed an application for extension of time under Section 151 read with Section 148 of CPC on 28-9-2000 on the ground that only on 8-9-2000 he came to know about passing of order dated 26-8-2000 and annexed a receipt of Rs. 10,000/- deposited on 26-9-2000 and prayed that rest of the arrears of rent of Rs. 36,700/- be permitted to be deposited in six monthly instalment and further stated that he will deposit the regular rent month by month without any default. As per application dated 28-9-2000 he had to deposit balance arrears of rent of Rs. 36,700/- in six monthly instalments within a period of six months, i.e., upto 31-3-2001. But, he failed to deposit the rent within the said period and only on 3-4-2001 he deposited the rent. During pendency, the respondent filed an application under Order 13 (6) of the Act. The Trial Court rejected both the applications vide order dated 3-4-2001. The appellant failed to pay rent regularly month by month as per Section 13 (1) of the Act. The respondents filed an application for striking out the defence which was rejected vide order dated 13-10-2003 by the Trial Court and gave a finding that there was delay in depositing the rent for the period 6/2001, 6/2002, 9/2002, 10/2002, 4/2003, 6/2003 and the rent for the above mentioned period was deposited after 15th of each preceding month.
4. The appellant prayed for condonation of delay in depositing the rent and averred that there was no wilful default in depositing the rent as the financial condition of the appellant was not very sound and therefore, there was delay in depositing the rent. The Trial Court held that financial condition of the appellant was good and he wilfully defaulted in depositing the arrears of rent and therefore, he is not entitled for any benefit under Section 12(3) of the Act and rejected the prayer by holding that the appellant failed to deposit the rent in time for a period from February, 1999 to April, 2001 and rejected his application filed under Section 151 of CPC and decreed the suit of the respondent plaintiff under Section 12(1)(a) of the Act and dismissed the suit under Section 12(1)(b), (e), (o) of the Act.
5. The Lower Appellate Court after considering the judgment and decree of the Trial Court has held that Trial Court has not committed any error in decreeing the suit under Section 12(1)(a) of the Act and upheld the judgment and decree of the Trial Court. Learned Counsel for the appellant submitted that there was delay in depositing the rent but from April, 2001 there was no default in depositing the rent. The Courts below have committed error in not condoning the delay and also erred in holding that appellant was a habitual defaulter.
6. Learned Counsel for the appellant in support of his arguments placed reliance on the decision of the Apex Court in the case of Ram Murti v. Bhola Nath and Anr. , Chordia Automobiles v. S. Moosa and Ors. and decision of the M.P. High Court in the case of Manoharlal Gopilal Pande v. Dr. Abdul MazidKhan 1997 (1) MPLJ 232.
7. In the case of Ram Murti (supra), the Apex Court came to the conclusion that the decision of Shyamcharan Sharma v. Dharamdas was correct. In the case of Shyamcharan Sharma (supra), the Apex Court has held that the Court has discretion to condone the delay and power not to strike out the defence. It was held in this case thus:
We think that Section 13 quite clearly confers a discretion, on the Court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent ad required by Section 13(1). If the Court has the discretion not to strike out the defence of tenant committing default in payment or deposit as required by Section 13(1), the Court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence.
8. After going through the application and material on record, this Court in the case of Manoharlal Gopilal Pande (supra), came to the conclusion that since the appellant has deposited the entire rent and the delay caused in payment of rent is not such as would cause a material injury to the respondent, the delay in payment of rent is liable to be condoned and it is accordingly condoned.
9. In the case of Chordia Automobiles (supra), the tenant received notice on 9-8-1989 for the arrears of rent for the period from 1-1-1989 to 31-3-1989 at the rate of Rs. 750/- per month and from 1-4-1989 to 31-7-1989 at the rate of Rs. 1000/- per month. The suit for ejectment was filed before expiry of the period of two months from the date of notice. The Apex Court has held that statute has given a benefit to a tenant viz., if there is default in payment of rent and a notice is sent by the landlord of such default, then the default would mature into a wilful default only if the default continues, in other words, the defaulted amount is not paid within a period of two months from the date of notice. The Apex Court has further held that the period of two months had not expired from the date of notice to when the suit was filed and it can be said that it is not a case of wilful default as contemplated under Section 10(2) of T.N. Building (Lease and Rent Control) Act, 1960.
10. In the case of S. Sundaram Pillai and Ors. v. V.R. Pattabiraman and Ors. (1985) SCC 591, the Apex Court had an occasion to consider the word "wilful default" under Section 19(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which reads as under:
26. Thus, a consensus of the meaning of the words 'wilful default' appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Act or other Acts referred to above.
11. In the case of Chordia Automobiles (supra), the Apex Court had an occasion to consider the word "wilful default" in Para 8 and has held as under:
8. Wilful default means an act consciously or deliberately done with open defiance and intent not to pay the rent. In the present case the amount of rent defaulted firstly is on account of fact that the agent of the landlord did not come to collect the rent for some reason. Further, notice of default contained disputed rent. This fact coupled with the fact that eviction suit was filed before maturing a case of wilful default in terms of the Explanation to the proviso of Section 10(2). The dispute of rent admittedly was genuine. Further, we find conduct of the appellant throughout in the past being not of a defaulter or irregular prayer of rent. Thus, all these circumstances cumulatively come to only one conclusion that the appellant cannot be held to be a wilful defaulter.
12. In the present case, Clause (a) of Sub-section (1) of Section 12 of the Act makes it clear that non-payment of arrears of rent recoverable from a tenant within two months of the date on which the notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner, as one of the ground for filing a suit a Civil Court against a tenant for his eviction from the rented accommodation. But, the legislative mandate contained in Sub-section (3) of Section 12 is that no order of eviction of a tenant shall be made if he makes payment or deposit as required by Section 13 of the Act. The proviso appended to Section 12(3) restricts entitlement to the benefit available under that sub-section. It cannot be availed of by tenant who having obtained such benefit once in respect of any accommodation again make a default in payment of rent of that accommodation for three consecutive months. A perusal of Sub-section (1) of Section 13 discloses that it imposes twin obligation on the tenant against whom a suit or proceedings is instituted on any of the grounds mentioned in Sub-section (1) of Section 12. The first is that within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, the tenant shall deposit in the Court or pay to the landlord an amount.
13. In the case of Jamnalal and Ors. v. Radheshyam , it has been held that two obligations are independent of each other.
14. Here in the present case, the appellant in spite of receipt of notice (Exh. P-2), dated 8-6-1999 failed to pay the arrears of rent within two months from the date on which a notice of demand for arrears of rent has been served on him. Thereafter, after filing of the suit the appellant failed to pay the rent within one month of service of writ of summons, arrears due on him and also failed to pay the rent regularly month by month and raised a dispute under Section 13(2) of the Act which was decided on 26-8-2000. The Trial Court vide order dated 26-8-2000 directed him to pay all the arrears of rent at the rule of Rs. 2300/- per month within a period of one month and further pay rent regularly month by month by the 15th of each succeeding month at the rate of Rs. 2300/- per month. It is not in dispute that appellant failed to comply the order dated 26-8-2000 and arrears were not paid by 26-9-2000. He prayed for extension on 28-9-2000 for depositing the arrears in six months' instalment by 31st March, 2001 but he failed to pay the arrears as per application for extension of time and did not deposit all the arrears of rent by 31-3-2001. The Trial Court also vide order dated 13-10-2003 found that for the month of June, 2001, June, 2002, September, 2002, October, 2002, October, 2003 and June, 2003 the appellant failed to deposit the rent by 15th of each succeeding month as per Section 13(1) of the Act. Thereafter again he filed an application for extension of time and delay in depositing the rent. The Trial Court considered his application and exercised its discretion and after exercising the discretion has held that the reason assigned by the appellant is not sufficient to condone the delay. The Trial Court exercised the discretion while rejecting the application for condonation of delay and was of the view that in the facts of the case reason assigned by the appellant was not sufficient to condone the delay and passed the decree under Section 12(1)(a) of the Act.
15. From the above facts and circumstances of the case it cannot be said a that the Trial Court has mechanically exercised its discretion without any application of mind to the facts of the case. The appellant intentionally failed to pay rent in time as directed by the Trial Court and committed default after default and failed to pay the rent without just and lawful cause and therefore, it cannot be said that he was not guilty of wilful default. The decision cited by the appellant in the case of Chordia Automobiles (supra) and Manoharlal Gopilal (supra), will not applicable in the present facts and circumstances of the case.
16. For the above mentioned reasons I am of the considered view that the Courts below have not committed any legal error in decreeing the suit of the respondent under Section 12(1)(a) of the Act. No substantial question of law arises in this appeal. The appeal filed by the appellant has no merit and is accordingly dismissed.