Ishak Mohammad v. Mohammad Tahir Khan — 1981 DIGILAW 8 (MP)

ORDER Mishra, J. 1. This revision by the defendants is against the order dated 24-8-1979, whereby on an application under section 13(6) of the M. P Accommodation Control Act, 1961 (hereinafter referred to as the Act), instead of striking out the right of defense the trial Court has directed them to deposit rent. 2. The facts essential for the decision of this revision are as under : The plaintiff non-applicant No. 1--Mohammad Tahirkhan has brought a suit for ejectment against the defendant-non-applicant No. 2--Shantabai alleging that she is a tenant in the suit premises and that the defendant-applicants herein entered into the suit premises by breaking open the lock initially but were accepted as sub-tenants by the defendant-non-applicant No. 2-- Shantabai. In the suit the defendant-non-applicant No. 2--Shantabai is exports. The plaintiff-non-applicant No. 1--submitted an application under S. 13(6) of the Act praying that the right of defense against eviction of the defendants should be struck out on account of failure to comply with section 13(1) of the Act. This application was opposed by the defendant-applicants on the ground that they are not under a statutory obligation to deposit the rent and that the Court has no jurisdiction to strike out their defense against eviction under the Act. By the impugned order the trial Court has instead of striking out the right of the defendant-applicants has directed them to deposit rent within the specified period. It is against this order that the present revision has been filed. 3. In this revision Shri L.N. Trivedi, learned counsel for the defendant-applicants contended that the direction made by the trial Court to deposit rent is without jurisdiction, inasmuch as under section 13 of the Act they are not under obligation to deposit rent nor can the Court give such a direction to them. 4, Shri D. P. Vohra, learned counsel for the plaintiff- non-applicant No. 1 argued in support of the impugned order and contended that a subtenant is included in the definition of the word 'tenant' as given in section 2(i) of the Act and this definition has to be read into section 13 of the Act also Therefore, the impugned order is intra Vires. None appeared for non-applicant No. 2. Having heard the learned counsel for the parties I have come to the conclusion that this revision deserves to be allowed. 5. None appeared for non-applicant No. 2. Having heard the learned counsel for the parties I have come to the conclusion that this revision deserves to be allowed. 5. Section 13 of the Act provides the eventualities in which a tenant can get the benefit of protection against eviction. Sub-sections (1) (2) and (6) of section 13, which are relevant to the situation are reproduced hereunder:-- S. 13. When tenant can get the benefit of protection against eviction.-- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 12, the tenant shall, 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, deposit in the Court to pay to landlord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay. month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. (2) If in any suit or proceeding referred to in sub-section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of subsection (1) till the decision of the suit or appeal. (6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defense against eviction to be struck out and shall proceed with the hearing of the suit. 6. Section 13 (1) and (2) refers to a suit brought by the landlord against the tenant. Section 2(i) of the Act defines a tenant as under -- S. 2. 6. Section 13 (1) and (2) refers to a suit brought by the landlord against the tenant. Section 2(i) of the Act defines a tenant as under -- S. 2. Definitions.--In this Act, unless the context otherwise requires,-- (1) 'tenant' means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made. The aforesaid definition, undoubtedly, includes any person occupying the accommodation as a sub-tenant, but the definition is not applicable where its applicability is ruled out by the context. This is clear from the use of the expression, "unless the context otherwise requires" in the enacting clause of the definition section. In the Interpretation of Statutes by Maxwell (Eleventh Edition) at page 31, it has been observed that -- If a defined expression is used in a context which the definition will not fit, the context must be allowed to prevail over the 'artificial conceptions' of the definition clause, and the word must be given its ordinary meaning. 7. Now, the context in which the term 'tenant' appears in various Sub-sections of S. 13 has to be examined. Section 13 is placed in Chapter III of she Act. In this Chapter, the sections which have been placed are sections 12 to 23. Section 12 enacts restriction on eviction of tenants. Its preamble-provides that "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.... Now S. 12, in sub sections (1) and (2),refers to suit or proceedings instituted the landlord on any of the grounds referred to in S. 12. Accordingly, the context, in which the word 'tenant' has been used in various subsections of S. 12, postulates that the suit must be brought by the plaintiff claiming himself to be the landlord of the defendant. To put it differently, there must be a privity of contract between the plaintiff and the defendant. Accordingly, the context, in which the word 'tenant' has been used in various subsections of S. 12, postulates that the suit must be brought by the plaintiff claiming himself to be the landlord of the defendant. To put it differently, there must be a privity of contract between the plaintiff and the defendant. In view of the context in which the word 'tenant' appears, the applicability of the definition as contained in S. 2(i) of the Act is ruled out. The context will control the situation and will prevail over tile artificial concept given in the definition clause. The word 'tenant' will have to be given its ordinary meaning. 8. A similar question fell for consideration before P.D. Mulye, J. In Vithaldas v. Kalabai (1978 MPWN 17), wherein it has been observed as under-- It is quite clear from the Wording of section 12 of the Act that the liability to deposit rent was that of a 'tenant' as defined in section 2(i) of the said Act. It envisaged a privity of contract between the plaintiff and the person ordered to deposit rent. If there is no privity of contract, there is no liability to pay rent Thus, no defendant could be obliged to deposit any rent u/s 13 of the said Act unless and until the plaintiff alleges the defendant to be his tenant. The liability of a sub tenant to pay rent is only to the tenant and not to the landlord. There being no privity of contract between the landlord and the sub-tenant, no decree for rent could be passed against the sub-tenant. That being so, compelling a sub-tenant to deposit the rent is illegal. It is a different matter that a subtenant may be made a defendant in the suit in order that he may have his say in the matter of ejectment and he may be bound by the decree which might be passed in it. In a suit instituted by a landlord against his tenant and sub-tenant the word tenant for the purposes of section 13(1) of the Art does not include a tenant. Thus, so far as the applicant, sub-tenant in the present case is concerned, the order passed by the trial Court cannot be sustained. In a suit instituted by a landlord against his tenant and sub-tenant the word tenant for the purposes of section 13(1) of the Art does not include a tenant. Thus, so far as the applicant, sub-tenant in the present case is concerned, the order passed by the trial Court cannot be sustained. It may be that the applicant himself claims to be a tenant and alleges that he was inducted in the suit premises by the plaintiff himself, but that is not the basis of the suit as the applicant has been impleaded as a party to the suit alleging to be a sub tenant of the original tenant, Beagirath. In these circumstances the order striking out the defense of the applicant against eviction must be set aside. Moolchand v Idol Shri Ramchandraji Maharaj, 1970 JLJ 94, Kanhaiyalal v. Ganeshbai, 1963 JLJ SN 265, Hazuri Singh v. Vijaya Singh, 1963 JLJ 715, relied on. I am in respectful agreement with the aforesaid exposition of the law on the point. 9. In Moolchand v. Idol Shri Ramchandraji Maharaj (1970 JLJ 94), the law on the point was laid down thus-- The trial Court acting under sub-section (6) of S. 13 of the Madhya Pradesh Accommodation Control Act, 1961, ordered the defense of the applicant, who was alleged in the plaint to be a sub-tenant to be struck out. It was held that so far as the applicant subtenant is concerned, the order pissed cannot be sustained. It may be that the applicant claim to be a tenant and alleges that he was inducted in the suit premises by someone else. But that is not accepted, nor is that the basis of the suit In the circumstances, the order striking out the defense of the applicant must be set aside. Daryavmal v. Sohanlal, 1961 JLJ 1417 relied on. 10. In this case the plaintiffs have implead the defendant-applicants herein as sub-tenants. For the reasons stated above, the trial Court had no jurisdiction to direct them to deposit rent.: The fact that the defendant -applicants have in their written-statement taken the plea to the effect that they are the direct tenants of the plaintiff will not convert the nature of the suit. For the reasons stated above, the trial Court had no jurisdiction to direct them to deposit rent.: The fact that the defendant -applicants have in their written-statement taken the plea to the effect that they are the direct tenants of the plaintiff will not convert the nature of the suit. What is essential to give jurisdiction to the Court to make a direction against a defendant to deposit rent is that the suit must be brought by the plaintiff on the hypothesis that the defendant is his tenant. 11. In this view of the matter, the impugned order is without jurisdiction. It occasions a failure of justice also because the defendant-applicants will be forced to deposit their good earned money and that too without the authority of the law. 12. Accordingly, this revision succeeds and is hereby allowed. The impugned order is set aside. However, in view of the nature of the controversy I direct the parties to bear their own costs as incurred. Petition allowed.