Madhya Pradesh High Court
Smt. Kanta Devi And Ors. vs Shiv Parvati Mandir And Anr. on 15 March, 2007
Equivalent citations: 2007(3)MPHT289
Author: S.K. Gangele
Bench: S.K. Gangele
JUDGMENT S.K. Gangele, J.
1. The defendant/appellant has filed this appeal against the judgment and decree passed by District Judge, Guna in Civil appeal No. 20-A/1998 affirming the judgment and decree passed by 1st Civil Judge, Class-II, Guna in Civil Suit No. 42-A/96.
2. The appeal was admitted for hearing on following substantial questions of law vide order dated 13-8-1999:
(1) whether Section 13(1) of M.P. Accommodation Control Act shall remain in operation before determination of provisional rent under Section 13(2) of the M.P. Accommodation Control Act ?
(2) whether decree for eviction under Section 12(1)(a) is contrary to the provisions of M.P. Accommodation Control Act ?
3. The respondents/plaintiffs filed a suit for eviction on the ground that suit house was in the ownership of Shiv Parvati Temple Trust. The defendant was tenant of the suit house on monthly rent of Rs. 100/-. The defendant did not pay the rent of the house after December, 1979 in spite of service of notice and also denied the ownership of the plaintiffs. The tenancy of the defendant was terminated vide notice dated 12-9-1988 Exh. P-3. The defendant in written statement denied the pleadings of the plaintiffs. The defendant submitted that the suit was filed by Gangaprasad and Vasudev Sharma and those persons were not trustee of the trust. He further submitted that he was tenant of the suit house at a monthly rent of Rs. 25/- and because there was dispute with regard to trustees, hence he did not pay the rent.
4. The Trial Court vide order dated 4-7-1995 on an application filed by the plaintiffs fixed the monthly rent of Rs. 75/- of the house per month and directed the defendant/tenant to pay the rent from September, 1988 to the date of passing of the order, i.e., 4-7-1995. Thereafter, in pursuance to the aforesaid order the defendant deposited the rent of Rs. 6,225/- on 10-7-1995. The Trial Court decreed the suit against the defendant on the ground of arrears of rent. The Trial Court also directed the defendant to pay mesne profit of Rs. 75/- per month. After the decree of the suit the Appellate Court affirmed the findings of the Trial Court in an appeal filed by the defendant.
5. The learned Counsel for the appellants has submitted that there was no arrears of rent on behalf of the defendant hence, the decree under Section 12(1)(a) of the M.P. Accommodation Control Act cannot be passed against the defendant. He further submitted that after fixing the provisional rent by the Trial Court vide order dated 4-7-1995 the defendant deposited entire amount of rent at the rate of Rs. 75/- per month hence, there was no default on behalf of the appellant. In support of his contention he relied upon the judgments of this Court in cases of Jamnalal and Ors. v. Radheshyam 2000(4) M.P.H.T. 218 (SC) : 2000(2) JLJ 1 ,Anandilal v. Shivdayal Pandey 1997 JLJ 817, Siddhnath and Anr. v. Kaluram and Naresh Goyal v. Abdul Hakim Afsar 1999(1) MPWN 67.
6. Contrary to this, learned Counsel for the respondents/plaintiffs has submitted that the defendant was habitual in not paying the rent regularly. After the order of the Court the defendant/appellant also did not deposit the rent regularly, which is clear from the application filed by the defendant/appellant himself before the Appellate Court on 4-5-1999 hence, the decree under Section 12(1)(a) has rightly been passed by both the Courts below.
7. From the facts stated above and the records of the case, undisputed facts of the case are that the defendant did not deposit the rent of the suit house from the year 1988. The plaintiffs claimed a decree of rent for the last three years. The suit was filed on 12-9-1991. After filing of the suit the defendant did not pay the rent although it was demanded by notice dated 12-9-1988 Exh. P-3. Thereafter, vide an order dated 4-7-1995, the Trial Court fixed the provisional rent of the house at the rate of Rs. 75/- per month. In pursuance to the aforesaid order the defendant deposited the rent of Rs. 6,225/- on 10-7-1995. After that also the defendant did not pay the rent of Rs. 75/- per month regularly which is clear from the application filed by the defendant himself before the First Appellate Court which was registered as LA. No. 3, dated 4-5-1999. In the aforesaid application the defendant/appellant himself admitted that he paid the following amount of rent on different dates:
Date Voucher No. Amount 10-07-95 14 6225 17-08-95 284 75 02-03-96 23 450 09-04-96 30 140 16-05-96 11 150 04-12-96 79 300 17-03-97 73 300 04-08-97 82 300 Total 8090
8. It is clear from the aforesaid facts that even though after fixing the provisional rent at the rate of Rs. 75/- per month the defendant himself did not pay the aforesaid rent of Rs. 75/- per month regularly. The arguments advanced by learned Counsel for the appellants for this default is that as per the final judgment and decree the Trial Court fixed the rent at the rate of Rs. 25/- per month. Hence, the defendant paid the amount in excess. Hence, there was no default on behalf of the defendant.
9. In my opinion, the aforesaid argument cannot be accepted because the Trial Court vide order dated 4-7-1995 fixed a provisional rent of Rs. 75/- per month and in accordance with the aforesaid order, it was the duty of the defendant/appellant to deposit the rent regularly on each and every month at the rate of Rs. 75/- per month. Admittedly as mentioned above the aforesaid rent was not deposited by the defendant on each and every month. Hence, there was default for many times.
9(a). The provision of Section 12(3) of M.P. Accommodation Control Act, 1961 gives protection to the tenant with regard to the default of payment of rent, if it was deposited in accordance with Section 13 of the M.P. Accommodation Control Act. However, as per the proviso to the aforesaid section if a tenant having obtained such benefits once in spite of any accommodation and again makes a default in payment of rent for 3 consecutive months he would not be entitled for the benefits of the section. Section 12(3) of M.P. Accommodation Control Act is as under:
(3) 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:
Provided that a tenant shall not be entitled to the benefit under this Sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months.
10. In such circumstances, in my opinion the defendant/appellant is not entitled for the benefit of Section 12 (3) of the M.P. Accommodation Control Act.
11. The Hon'ble Supreme Court in case of E. Palanisamy v. Palanisamy (Dead) by L.Rs. and Ors. , with regard to liability of the tenant to pay the rent in receiving the protection under the Lease and Rent Control Act, 1960 has held as under:
The rent legislation is normally intended for the benefit of the tenants. At the same time, the benefits conferred on the tenant through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the T.N. Buildings (Lease and Rent Control) Act, 1960 the procedure to be followed by the tenant is given step by step. An earlier step is a precondition for the next step. The tenant has to observe the procedure as prescribed in the statute. Strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step, i.e., to deposit rent in Court. The last step can come only after the earlier steps have been taken by the tenant.
12. Consequently, I hold that both the Courts below have not committed any error of law in granting the decree of eviction under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961.1 answer the substantial question of law No. 2 accordingly.
13. With regard to second substantial question of law is concerned, the Division Bench of this Court in case of Anandilal v. Shivdayal Pandey (supra), has held as under:
Even when there is no dispute with regard to the rate of rent and the dispute is only with regard to the arrears of rent no such a dispute, till the Court passes an order under Sub-section (2) of Section 13 of the Act, the operation of the whole of Sub-section (1) of Section 13 of the Act, is arrested. To be more specific, the liability of the tenant to deposit monthly rent for the preceding month under the second part of Section 13(1) does not commence until an order under Sub-section (2) of Section 13 is made.
The order contemplated under Sub-section (2) of Section 13 of the Act is the one with regard to that part of deposit under Section 13(1), for which there is a dispute. 1973 JLJ 63 relied on.
14. The Hon'ble Supreme Court also in case of Jamnalal and Ors. v. Radheshyam (supra), has held as under:
A careful reading of the Sub-section shows that the Court is enjoined to fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provisions of Sub-section (1) if there is a dispute as to the amount of rent payable by the tenant. The clause 'the Court shall' fix a reasonable provisional rent in relation to the accommodation clearly indicates that 'any dispute as to the amount of rent' is confined to a dispute which depends on the rate of rent of the accommodation either because no rate of rent is fixed between the parties or because each of them pleads a different sum. Where the dispute as to the amount of rent payable by the tenant has no nexus with the rate of rent, the determination of such dispute in a summary inquiry is not contemplated under Sub-section (2) of the Section 13. Such a dispute has to be resolved after trial of the case. Consequently, it is only when the obligations imposed in Section 13(1) cannot be complied with without resolving the dispute under Sub-section (2) of that Section, that Section 13(1) will become inoperative till such time the dispute is resolved by the Court by fixing a reasonable provisional rent in relation to the accommodation. It follows that where the rate of rent and the quantum of arrears of rent are disputed the whole of Section 13(1) becomes inoperative till provisional fixation of monthly rent by the Court under Sub-section (2) of Section 13, which will govern compliance of Section 13(1) of the Act. But where rate of rent is admitted and the quantum of the arrears of rent is disputed (on the plea that the rent for the period in question or part thereof has been paid or otherwise adjusted). Sub-section (2) of Section 13 is not attracted as determination of such a dispute is not postulated thereunder. Therefore, the obligation to pay/deposit the rent for the second and the third period subsequent to the notice of demand and for the period in which the suit/proceedings will be pending that is (future rent) does not become inoperative for the simple reason that Section 13(2) does not contemplate provisional determination of amount of rent payable by the tenant. As resolution of that category of dispute does not fall under Section 13(2) the tenant has to take the consequence of non payment/deposit of rents for the said periods. If he fails in his plea that no arrears are due and the Court finds that the arrears of rent for the period in question were not paid, it has to pass an order of eviction against the tenant as no provision of Section 13 of the Act protects him.
15. Consequently, I answer substantial question of law No. 1 that the provisions of Section 13(1) of the M.P. Accommodation Control Act, would not remain in operation before the determination of provisional rent under Section 13(2) of the M.P. Accommodation Control Act.
16. The next argument of learned Counsel for the appellant is that the suit is not maintainable because it has not been filed by the trustees.
17. In my opinion, no substantial question of law has been framed in this regard neither any such application has been filed by the appellant after admission of the appeal on 13-8-1999. The appellants have filed an application under Order 6 Rule 17 read with Section 151 of CPC. On 14-3-2002, which is on a belated stage. At this stage the plea cannot be accepted.
18. In such circumstance, I do not find any merit in this appeal, it is therefore, herby dismissed. Looking to the facts and circumstances of the case and looking to the status of the appellants/defendants, they are granted six months time to vacate the suit premises subject to condition that they will furnish an undertaking before the Trial Court that they will vacate the suit premises within a period of six months and will pay rent of the suit premises each and every month. No order as to costs.