Madhya Pradesh High Court
Kewal Kumar Sharma vs Satish Chandra Gothi And Anr. on 23 August, 1990
Equivalent citations: 1991(0)MPLJ458
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER
B.C. Varma, Actg. C.J.
1. The petitioner invokes the power of superintendence of this Court under Article 227 of the Constitution of India for quashing the order dated 19-10-1989 passed by the District Judge, Bhopal, in Civil Revision No. 136 of 1989 (Annexure-A), whereby the learned District Judge allowed the revision and set aside the trial Court's order dated 27-7-1989. The result is that the petitioner-defendant is precluded from leading evidence on the issue of arrears of rent, although evidence was to be led for the limited purpose of contesting the quantum of rent arrears allegedly due and adjustment claimed by him.
2. The suit by the respondent-plaintiff Satish Chandra was for the eviction of the petitioner-tenant, based on the ground envisaged Under Section 12(l)(a) and (e) of the M. P. Accommodation Control Act. The defence was that there were no arrears of rent due against the petitioner. He claimed adjustment for the amount spent by him on repairs of the premises, for taxes paid, advances made towards rent, expenses of electric fittings, water charges, etc. It was denied that there were any arrears of rent. The proceedings went on and ultimately the petitioner-defendant-tenant suffered an order Under Section 13(6) of the Act and his defence against eviction based on ground Under Section 12(l)(a) of the Act now stands terminated. The consequence of this order is that he shall not be able to contest the issues relating to the ground of eviction, although respondent No. 1-plaintiff shall still be required to establish these grounds. As the suit proceeded for trial, the petitioner insisted upon leading evidence to contest the claim for arrears of rent. It may be mentioned that in the suit, besides eviction, claim was also for arrears of rent said to be due to the respondent-plaintiff. This was objected to by the plaintiff-respondent mainly on the ground that the petitioner's defence against eviction stood struck out for non-payment of rent. The trial Court rejected the respondent's contention and permitted the petitioner to contest that issue as to arrears of rent. As stated above, that order of the trial Court has been set aside by the Revisional Court, which has sustained the respondent-plaintiffs stand and precluded the petitioner from contesting the claim regarding arrears of rent.
3. The scheme of the Accommodation Control Act may be examined. Section 12 of the Act contains a provision stating the grounds on which eviction of a tenant may be claimed, notwithstanding anything to the contrary contained in any other law or contract. Clause (a) of Section 12(1) relates to the tenant's default in payment of rent and provides that eviction may be claimed, if the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him, within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Eviction is also permissible under clause (e) of Section 12(1), if the accommodation let out for residential purposes is required bona fide by the landlord for occupation as residence for himself or for any member of his family. Sub-section (3) of Section 12 provides that no order for 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. Section 13 is a provision giving more facilities and a further opportunity to the tenant to make good the default in payment of arrears of rent as also the amount of rent falling due during the pendency of the suit. Provision is for determination of provisional rent in case the tenant-defendant contests the claim of arrears of rent or rate of monthly rent. It is only when, on fixation of such provisional rent, the tenant fails to make payment or deposit the amount of such rent that the drastic step Under Section 13(6) may be taken and the 'defence against eviction' be struck out. Nevertheless the provision is that the Court shall proceed with the hearing of the suit. The consequence that follows from striking out the defence against eviction is that while the tenant-defendant shall stand precluded from contesting the claim against eviction based on the ground Under Section 12(1), including the ground Under Section 12(l)(a), relating to arrears of rent, the Court shall proceed with the hearing of the suit and the defendant shall be able to contest the claim for eviction on other grounds. It is worthy of note that according to Sub-section (2) of Section 13, in case of any dispute as to the amount of arrears of rent payable by the tenant, the Court is required to fix a reasonable provisional rent to be deposited or paid in accordance with the provisions of Sub-section (1) of Section 13, till the disposal of the suit or appeal. According to Sub-section (5) of Section 13, if the tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), of Section 13, no decree or order shall be made by the Court for recovery of possession of the accommodation on the ground of default in payment of rent by the tenant, but the Court may allow such costs, as it may deem fit, to the landlord.
4. It is manifest from the provisions of Section 13 that the first three sub-sections give to the tenant the benefit of protection under certain circumstances, on deposit of rent. According to Sub-section (4), if the tenant raises false or frivolous defence, he runs the risk of his defence being struck out against eviction. Sub-section (5) is again for the benefit of the tenant, when it provides that if the tenant makes a deposit as required by Sub-section (1) or Sub-section (2), no decree of eviction shall be passed against him on the ground of default of payment of arrears of rent. Sub-section (6) contains a drastic provision, enabling the Court to strike out the tenant's defence against eviction, if he fails to deposit or pay any amount as required by the order made under the sub-sections (1) and (2) of Section 13. There always had been a controversy as to the meaning of the expression "defence against eviction". A Division Bench of this Court, in Premdas v. Laxmi Narayan, 1964 MPLJ 87, discussed the question at length and referred to cases decided by the Calcutta High Court under similar provisions as also the decisions of the Supreme Court, rendered till then. It held that the expression 'defence against eviction', used in Sub-section (4) or Sub-section (6) of Section 13, means the defence against eviction resting on Section 12 of the Act and when an order under those sub-sections is made, striking out the tenant's defence against eviction, the tenant does not lose his right of putting up a defence to ejectment suit, which does not fall Under Section 12. On the facts of that case, the Division Bench observed that the issues whether the plaintiff was entitled to file the suit when he had not obtained any letters of administration and whether the opponent was his tenant, are not founded on any defence of the opponent resting on any of the grounds specified in Section 12 of the Act. The Court, therefore, held that the opponent (tenant) was entitled to lead evidence on those issues even when he suffered an order striking out the defence Under Section 13(6). of the Act.
5. Recently, the Supreme Court, in Modula India v. Kamkshya Singh Deo, AIR 1989 SC 162, had occasion to review the decisions of the various High Courts and of the Supreme Court, as to the consequences of defence against eviction being struck out in terms of the rent legislations as also under the provisions of the Code of Civil Procedure. It held that the provision of stricking out the defence is one in terrorem. It was observed that under the Rent Acts such provisions are not mandatory and it is not obligatory on the Court, merely because there is a default, to strike out the defence. It is a matter for exercise of great judicial restraint. The Court held that it does not necessarily follow that merely because the defence against eviction stands struck out, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. Further observations are that the provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. In ultimate analysis, the Court held as follows : -
"We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his evidence. None of the observations or decisions cited have gone to the extent of suggesting that in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case."
From the above decision it can now safely be held that the defendant, whose defence against eviction is struck out in a suit for eviction on grounds under the Rent Act, can cross-examine the plaintiff and his witnesses and address the Court on the basis of the plaintiff's case only with a view to point out the falsity of the weaknesses of the plaintiffs case. Another thing which is clear is that the defendant-tenant can still contest the issues which are not based upon any of the grounds of eviction mentioned in the Rent Act and in our case, under the various clauses of Section 12(1) of the M. P. Accommodation Control Act. We have noted above that one of the grounds mentioned in Section 12(l,)(a) of the Act is non-payment of arrears of rent despite notice of demand in that behalf. We have also noted that the Act, by enacting Section 13 and Section 12(3), has permitted further latitude to the tenant to avoid a decree of eviction on such a ground. The scheme of Section 13 has also been noted. It permits the tenant to contest arrears as also the rate of rent and if that is done, the operation of Section 13(1) is arrested and the Court is bound to fix provisional rent and also allow time to the defendant to deposit the same. In Shyamcharan Sharma v. Dharamdas, AIR 1980 SC 587 a case under the M. P. Accommodation Control Act, the Supreme Court held that the Court has further discretion to condone the default and extend time for payment or deposit. It is also noteworthy that if the Court fixes provisional rent to be paid by the tenant during the pendency of the eviction suit based on the grounds Under Section 12(1) of the Act, the issue as to the amount of arrears of rent due or as to the rate is not tried at that stage in the sense in which an issue is tried by giving the parties opportunities to lead evidence. What is contemplated at that stage is just a summary enquiry as the Court may deem fit in order to fix a 'reasonable provisional rent' in relation to the accommodation, to be paid or deposited in accordance with the provisions of Sub-section (1) of Section 13. Sub-section (2) of Section 13 further provides that save for reasons to be recorded in writing, no Court shall entertain any plea on this count at any subsequent stage. This expression would only mean a prohibition against raising a plea against fixation of reasonable provisional rent. In our judgment, the provisions of Section 13 and particularly that contained in Sub-section (2) thereof do not contemplate a trial on any issue or an elaborate enquiry as to the arrears of rent or as to the rate of rent, if the tenant were to join issues with the plaintiff in that regard. The provision is only meant for the benefit of the tenant to avoid a decree for his eviction based on the ground Under Section 12(l)(a) of the Act, which is as follows : -
"12(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court, against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely : -
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner."
6. In Premdas's case (supra), the Division Bench of this Court has in quite unequivocal terms stated that the issues other than those relating to eviction based on the grounds Under Section 12(1) of the Act can all be tried and even if the defence against eviction is struck out, the tenant shall have a right to contest all other issues. Therefore, in a suit, where apart from the relief of ejectment, although based on the ground Under Section 12(l)(a) of the Act, a decree for arrears of rent is also claimed and if the tenant denies the arrears of rent or claims adjustment, an issue shall have to be struck down relating to arrears of rent. The tenant can well demonstrate that the arrears, as claimed, are not due. When the issues in the suit are tried in those proceedings in the suit, the defendant-tenant shall get a right to properly contest those issues. If this is not permitted, the tenant shall have to suffer a decree for ejectment, because his defence against' eviction has been struck out and, at the same time, shall also have to suffer a decree for certain amount allegedly due as arrears of rent, but without any opportunity to him to contest that fact in issue. This, is our opinion, shall condemn the defendant without due opportunity. We are, therefore, of the opinion that even where the defence against eviction in a suit, also based on the ground Under Section 12(1 )(a) of the Act, is struck out in terms of Section 13(6), for non-payment of reasonable provisional rent, as fixed Under Section 13(2) of the Act, the tenant shall still be entitled to content the issue as regards the quantum of rent, which, in our opinion, is different from the ground upon which eviction may be sought Under Section 12(1) of the Act. Even otherwise, we find that the defendant shall be entitled, in terms of the decision of the Supreme Court in Modula India's case (supra), to cross-examine the plaintiff to show that his Claim of arrears of rent is false or untrue and also to address the Court in that regard.
7. We may refer to a decision of a Single Bench of this Court in Gurmukhdas v. Shaliram Grover, C. Re. No. 541 of 1975 decided on 20-2-1975. We have gone through the full text of that decision. After quoting from Premdas's case (supra), the learned Single Judge rightly concluded that the 'defence against eviction', as used in Section 13(6) of the Act, is restricted only to the defence available to the tenant Under Section 12 of the Act. The learned Judge, however, went on to observe, "it appears to me clear that the defendant could not do indirectly what he was precluded to do directly. The question of arrears of rent is a ground on which the tenant could be evicted, which occurs in Section 12 of the Act. Now; if the defendant was permitted to lead evidence on the question of quantum of arrears of rent, he was certainly permitted to agitate the question of arrears itself, which if his defence was struck out, was precluded from raising. The defendant was, therefore, precluded from leading any evidence as regards arrears of rent, even though it was for the limited purpose of establishing quantum." With due respect to the learned Single Judge, who decided that case, we find ourselves unable to agree with the conclusion so reached. In reaching that conclusion, the learned Single Judge missed the true import of the provisions of Section 13(2) and Section 13(6) of the Act. A tenant is entitled to contest the arrears of rent which may be claimed in a suit for ejectment based on grounds Under Section 12(1), including the ground under clause (a) thereof. If he does not contest that issue, he shall suffer two decrees, one for ejectment and the other for arrears of rent. This shall be, of course, when the plaintiff proves his case. If, however, the defence against eviction is struck out, the defendant is precluded from leading evidence on those issues. Even so, he is entitled to cross-examine the plaintiff to demolish his case and to address arguments. That is the effect of striking out the defence. He can contest any other issue in the suit and can get the suit dismissed for any other relief, which may include the claim as to the arrears of rent. Although, at first sight, it appears incongruous that a tenant may suffer a decree for non-payment of arrears of rent because the defence against eviction is struck out, still he may get the relief against the actual amount of arrears of rent claimed. But a little deeper probe into the matter would demonstrate that the tenant suffers a decree not because the issue as to quantum of rent is tried, but because of the special provision of the Act, namely, Section 13 and its various sub-sections, including Sub-section (6), which vests a discretion in the Court to strike out the defence against eviction. We, therefore, hold that the case in Gurmukhdas's case (supra) was not correctly decided and is hereby overruled.
8. For the aforesaid reasons, we allow this petition and quash the order (Annexure-A). The defendant shall be permitted to contest the issue as to quantum of arrears of rent and the adjustment claimed. There shall be no order as to costs.