Madhya Pradesh High Court
Smt.Kanak Mala vs Pankaj Gupta on 20 November, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
1
THE HIGH COURT OF MADHYA PRADESH
FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta)
GWALIOR; dated 20/11/2019.
Shri Anand V.Bhardwaj, learned counsel, for the appellant.
Shri Anmol Khedkar, counsel for the respondent.
Heard on I.A.No.3154 of 2019 an application for recalling of the order dated 25.3.2019 passed by coordinate Bench of this court whereby, defence of respondent has been struck off on an application filed by appellant under Section 13 (6) of the M.P. Accommodation Control Act.
It is alleged by counsel for the respondent that an appeal has been preferred against the impugned judgment and decree dated 22.12.2010 by which, suit filed by the appellant has been dismissed. During pendency of the civil suit, learned trial court has decided the dispute under Section 13 (2) of the M.P. Accommodation Control Act and fixed the provisional rent at the rate of Rs.1,000/- per month and after decision of the said dispute, respondent was complying the order passed by the trial court regularly depositing the rent. It is alleged that while taking the suit premises on rent, an amount of Rs.10,000/- was deposited towards advance rent. Appellant without adjusting amount of Rs.10,000/- towards arrears of rent has filed an application under Section 13 (6) of the Accommodation Control Act for striking of the defence of respondent. Appellant has tried to demonstrate by way of default that an amount of Rs.600/- per month was required to be deposited. The same was deposited regularly up to December, 2016 2 THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) but from February, 2017 on-wards till February, 2018, no rent was deposited. There was a regular default by the respondent of not depositing the rent for a period of one year without there being any reason for the same, the application was filed for striking of the defence.
The detailed reply to the aforesaid application was filed by the respondent alleging therein that there is advance rent of Rs.10,000/- deposited by the defendant at the time of taking premises on rent which deserves to be adjusted towards the due rent and as the due rent was lesser than the advance amount of Rs.10,000/-, the respondent cannot be held liable for the default in making payment of rent. It is further alleged that this court while finally deciding the application under Section 13 (6) of Accommodation Control Act has not taken into consideration the aforesaid aspect that the dues towards rent were blow Rs.10,000/- and could have been adjusted from the advance rent. He has relied upon the judgment rendered by Hon. Apex Court in the case of G.Reghunathan Vs. K.V.Varghese reported in AIR 2005 SC 3680 and has argued that when the amount of arrears of rent was smaller than the advance amount held by landlord from the tenant, there was no default in payment of rent and the grant of eviction on the ground of arrears of rent was not justified. He has further relied upon the judgment rendered by Hon. Supreme Court in the case of Modern Hotel Gudur represented Vs. K.Radhakrishnaiah 3 THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) reported in 1989 2 SCC 686 wherein, similar analogy was considered by the Apex Court. It is further alleged that at the time of filing of reply to the application, he has enclosed all the rent receipts to show that there is no default on the part of respondent if the amount of dues towards rent are adjusted towards the advance rent. It is submitted that as per the application filed by appellant under Section 13 (6) of the Accommodation Control Act, it is apparently clear that total due amount towards rent comes to Rs.7200/- and it is admitted position which is reflected in para 55 of the judgment passed by learned trial court while deciding issue No.8 that advance amount for Rs.10,000/- was deposited towards advance rent. Thus, it is submitted that this court while deciding application under Section 13 (6) of the Accommodation Control Act has not taken note of the aforesaid aspect of advance rent deposited and has allowed the application under Section 13 (6) of the Act striking out the defence of respondent. If the application filed under Section 13 (6) of the Accommodation Control Act filed by the appellant for striking of the defence is allowed without adjusting the amount deposited towards arrears of rent, it will cause irreparable injury to the respondent as entire defence taken by him will be struck of. Hence, it is submitted that the order passed by the court is contrary to the law laid down by Hon. Supreme Court in the aforesaid cases and in such circumstances, he has prayed for rejection of order dated 25.3.2019. 4
THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) Per contra, counsel for the appellant has opposed the application and has contended that this court while deciding application under Section 13 (6) of the Accommodation Control Act has considered all the arguments advanced by counsel for the respondent. The argument towards deposit of advance rent was Rs.10,000/- was also considered by the court. He has drawn attention of this court to the provisions of Section 13 (6) of the Accommodation Control Act 1961 which reads as under :
"13. When tenant can get benefit of protection against eviction. - (6) 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".
It is contended that the respondent remained defaulter for continuous period of one year and there is specific provision for striking of the defence, if the default is more than three months. Aforesaid aspect was taken into consideration by the court while deciding the application. The court has held that "rent was not deposited regularly every month during pendency of this appeal. The deposits made were in lump sum pertaining to the period more than one month at one point of time and this default has taken place on various occasions where the provisions of Section 13 (1) of the Accommodation Control Act stood breached". Considering the aforesaid, the court has allowed the application under Section 13 (6) of the Accommodation Control Act and there is no illegality in the 5 THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) order passed by this court. He prayed for rejection of the application.
Heard learned counsel for the parties and perused the record. From perusal of record, it is seen that admittedly, rent of Rs.600/- was required to be deposited by the tenant and he remained defaulter for almost one year. He was required to deposit rent every month. When application under Section 13 (6) of the Accommodation Control Act was filed for striking of the defence due to breach of condition of Section under Section 13 (6) of the Accommodation Control Act, a stand had been taken by the tenant that an advance amount of Rs.10,000/- towards advance rent was already with the landlord and due rent even if taken for a year is Rs.7200/- as is reflected from the application filed under Section 13 (6) of the Accommodation Control Act which is less than due rent, therefore, should have been adjusted by the landlord prior to filing of the application. In terms of provisions of Section 13 (6) of the Accommodation Control Act, the tenant was required to deposit the rent on regular basis but he has failed to do so. The default continued for almost one year. He has made himself liable for taking action under Section 13 (6) of the Accommodation Control Act. A coordinate Bench of this court has rightly considered the aforesaid aspect and has struck of the defence but the fact remains that the amount towards rent was less than the advance amount deposited towards the rent. The Hon. Apex Court in the case of Modern Hotel (Supra) has 6 THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) considered the aforesaid aspect and has held as under :
"when the amount of arrears of rent was smaller than the advance amount held by the landlord on account of the tenant, there was no default in payment of rent and the grant of eviction on the ground of arrears of rent was not justified".
The Hon. Apex Court reiterated its earlier stand in K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed reported in 1996 (3) SCC 45 and has held as under :
"For the purpose of this case, especially when the tenant had pleaded that he had deposited the rent even while filing his objection in the Rent Control Court, we do not think that it is necessary to pronounce finally on this question. We feel that it is only necessary to clarify that the tenant will have two months from today to deposit the rent in arrears till date and the other sums in terms of Section 11(2) (c) of the Act so as to avert the execution of the order for eviction on the ground of arrears of rent granted under Section 11(2) of the Act".
The aforesaid analogy was followed by Hon. Apex Court in the case of G.Reghunathan (Supra). Admittedly, in the present case, arrears towards rent was Rs.7200/- as reflected in the application filed by the appellant under Section 13 (6) of the Accommodation Control Act. Advance rent deposited by the respondent was Rs.10,000/- which is much higher than arrears of rent. The appellant without adjusting the advance rent from the arrears has filed the application under Section 13 (6) of the Accommodation Control Act which was allowed by this court vide order dated 25.3.2019. From perusal of the order dated 25.3.2019, it is apparent that there is no discussion with respect to advance rent deposited by the respondent and the dues which could have been adjusted with the advance rent. 7
THE HIGH COURT OF MADHYA PRADESH FA.134 of 2011.
(Smt. Kanak Mala Vs. Pankaj Gupta) Thus, in terms of law laid down by the Apex Court in the aforesaid cases, the order appears to be unsustainable. Therefore, the application I.A.No.3154 of 2019 for recalling order dated 25.3.2019 is hereby allowed and disposed of.
Also heard on I.A.No.3155 of 2019 an application for adjustment of amount of Rs.10,000/- advance rent towards the arrears of rent.
This court has already allowed the application for recalling of the order dated 25.3.2019 whereby, the application filed under Section 13 (6) of the Accommodation Control Act was allowed. Admittedly, advance rent Rs.10,000/- shall be adjusted by the appellant which is on the higher side with the amount due towards the rent is Rs.7200/-. Thus, the application for adjusting the amount towards due rent from the advance rent deposited is hereby allowed. The appellant is directed to adjust the said amount with the amount of Rs.10,000/- deposited as advance rent by the respondent.
I.A.No.3155 of 2019 an application for adjustment of amount of Rs.10,000/- advance rent towards the arrears of rent stands allowed and disposed of.
CC as per rules.
(Vishal Mishra) Judge Rks.
RAM KUMAR SHARMA 2019.12.07 16:46:41 +05'30'