KANHAIYALAL v. GOVINDRAM BIRDICHAND JOSHI — 1989 DIGILAW 372 (MP)

R. K. VARMA, J. ( 1 ) THIS is a second appeal filed by the appellant-defendant against the judgment and decree dated 19-12-1984 passed by the Addl. Judge to the Court of the District Judge, Indore in C. A. No. 6-A/ 84 affirming the judgment and decree passed by the VIth Civil Judge Class II, Indore in Civil Suit No. 371-A/77 dated 16-8-79 whereby the plaintiff's suit for eviction has been decreed on the ground of default in payment of arrears of rent under S. 12 (1) (a) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the Act ). ( 2 ) THE facts giving rise to this appeal; briefly stated, are as follows:- it is not disputed that the appellant-defendant has been a tenant in the suit-shop belonging to the respondent-plaintiff on a monthly rent of Rs. 25/ -. The plaintiff served a notice dated 9-7-77 (Ex. P/3) on the defendant terminating his tenancy of the suit shop with effect from 31-8-77 on the ground of bona fide requirement under S. 12 (1) (0 of the Act as also on the ground of default of payment of rent under S. 12 (l) (a) of the Act and claimed possession of the suit-shop and the arrears of rent due from 1-4-77 which the defendant had not paid in spite of demand. The defendant did not comply with the notice and instead asserted in his reply (Ex. P/4) to the notice that he had paid the rent for the months of April, May and June, 1977 in a lump sum in the presence of one Siyaram Yadav and alleged that the plaintiff had not given a receipt of payment made by the defendant. ( 3 ) THE plaintiff, then filed the instant suit on 10-10-77 claiming eviction on the grounds under Ss. 12 (1) (f) and 12 (1) (a) of the Act and arrears of rent from 1-4-77 the date of termination of tenancy and mesne profits from 1-9-77 to 9-10-77 at the rate of rent. The defendant resisted the suit and averred in the written statement that he had paid the rent for the months of April, May and June, 1977. 12 (1) (f) and 12 (1) (a) of the Act and arrears of rent from 1-4-77 the date of termination of tenancy and mesne profits from 1-9-77 to 9-10-77 at the rate of rent. The defendant resisted the suit and averred in the written statement that he had paid the rent for the months of April, May and June, 1977. ( 4 ) AFTER trial of the suit, the learned trial Court found, on appreciation of evidence adduced in the case that the plaintiff had failed to prove the ground of bona fide requirement, but had established the ground under S. 12 (1) (a) of the Act since it held that the defendant had not paid rent from 1-4-77 even after service of summons on him as was permissible under S. 13 (1) of the Act. ( 5 ) AGAINST the judgment and decree passed by the learned trial Court, the appellant-defendant filed the First Appeal before the Addl. Judge to the Court of the District Judge, Indore challenging the finding that the defendant was in arrears of rent and had not paid the same in spite of service of demand notice. ( 6 ) THE learned lower Appellate Court on appreciation of evidence, found that the finding of the trial Court that the defendant-appellant remained in arrears of rent for the months of April, May and June, 1977 and has not paid the same in spite of the service of demand notice (Ex. P/30) is correct. It also found that this amount of arrears of rent has not been deposited under S. 13 (1) of the Act, and therefore, the appellant is not entitled to any protection against eviction for nonpayment of rent. Accordingly, affirming the judgment and decree of the trial Court, the learned lower Appellate Court has dismissed the first appeal. ( 7 ) BEING aggrieved by the impugned judgment and decree of the learned Lower Appellate Court the defendant-appellant has filed this second appeal which was admitted for hearing on the following substantial question of law :- (1) Whether, on the facts and in the circumstances of the case the court below should have fixed provisional rent under S. 13 (2) of the M. P. Accommodation Control Act, 1961? (2) Whether, on the facts and in the circumstances of the case, the Court below has erred in law in passing a decree for eviction under S. 12 (1) (a) of the M. P. Accommodation Control Act 1961? ( 8 ) LEARNED counsel for the appellant has submitted that after service of summons of the suit on the defendant, who appears to have been served on 19-1-78, he deposited arrears of rent of Rs. 225/- on 30-3-78. But the amount of Rs. 225/- admittedly did not include the rent for the months of April, May and June as according to the defendant the rent for the months of April, May and June had already been paid earlier. In the circumstances it is urged that Court should have fixed the reasonable provisional rent under S. 13 (2) of the Act in relation to the accommodation, to be deposited or paid in accordance with the provisions of sub-sec. (1) of S. 13. ( 9 ) ADMITTEDLY, there was no dispute as to the rate of rent but the case of the defendant was of no arrears due from him in respect of the months of April, May and June, 1977. There was no prayer made by the tenant for fixation of provisional rent. ( 10 ) AT the conclusion of the trial, it was found by the trial Court that the defendant-tenant had not paid the rent for the months of April, May and June, 1977 as alleged by him and accordingly, the decree for eviction under S. 12 (1) (a) of the Act and arrears of rent against the defendant was passed by the trial Court. In such circumstances, it cannot be said that a dispute under S. 13 (2) of the Act was raised by the defendant. The point does not appear to have been raised even in First Appeal as is apparent from the perusal of the impugned judgment. The learned counsel fur the respondent-plaintiff has therefore, contended and in my opinion, rightly; that the point which does not appear to have been raised in the Court below, cannot give rise to a substantial question of law, as formulated at the time of admission of the appeal, learned counsel has placed reliance on a decision of this Court in Sudhanshu Bhushan Tyagi v. Saifia College, Bhopal (1987 (20 MPWN 148) in support of his submission. It has also been submitted on behalf of respondent-plaintiff that the defendant never offered to deposit or applied for extension of time to deposit the rent in respect of the months of April, May and June, 1977 under S. 13 (1) of the Act during the pendency of the suit. In the circumstances, when the stand of the defendant was of no arrears and no rent was offered for the months of May, June and July, 1977 and no application for fixing the provisional rent was made, it cannot be said that the Court below had erred in not fixing the provisional rent under S. 13 (2) of the Act. Moreover, the point having not been raised in the Court below, it cannot give rise to a substantial question of law in this second appeal. ( 11 ) THE provisions of S. 13 (1) of the Act, however, was not available in respect of the appeal when the defendant filed the appeal on 17-10-79 before the First Appellate Court since it was by Act No. 27/83 that S. 13 (1) was amended so as to be applicable on institution of an appeal as well. In the circumstances, it was not open to the defendant-tenant to claim compliance of S. 13 (1) by depositing in Court or paying to the landlord within one month of the institution of appeal the arrears of rent for the period for which the tenant might have made default and thereupon to claim the benefit under S. 12 (3) of the Act which provides that no order for eviction of a tenant shall be made on the ground specified in Cl. (a) of sub-sec. (1) if the tenant makes payment or deposits as required by S. 13. ( 12 ) IT is the contention of the learned counsel for the appellant that since the appellant tenant deposited in the First Appellate Court the decretal amount and costs which included the amount of rent for the months of April, May and June, 1977 in compliance with the condition imposed by the Court for stay of the execution of the decree for eviction passed by the trial Court, the appellant should be deemed to have complied with the provisions of S. 13 (1) of the Act. This contention of the learned counsel cannot be accepted firstly, because the compliance with the condition of the stay order cannot be construed to be a compliance with the provisions of S. 13 (1) of the Act and secondly, because the provisions of S. 13 (1) of the Act as it stood at the time of filing of the appeal on 17-10-79 i. e. before the Amendment Act No. 27/83, did Trot require the tenant to deposit the amount of arrears of rent on institution of appeal and, therefore, deposit of arrears on institution of appeal before the Lower Appellate Court did not attract the application of S. 12 (3) of the Act. The appellant-tenant had, however, made an application under S. 13 (1) before the Lower Appellate Court on 29-8-80 when no such application could be entertained in an appeal filed before the Amendment Act No. 27/83. Moreover, as is evident from the impugned judgment, the application does not appear to have been pressed during arguments. There is thus, no valid deposit of rent under S. 13 (1) of the Act so as to merit application of S. 12 (3) of the Act. Consequently, it cannot be said that the Court below has committed any error in law in passing the decree for eviction under S. 12 (1) (a) of the Act. ( 13 ) LEARNED counsel for the appellant has submitted that after filing of the second appeal which was filed in this Court on 7-1-85, appellant-tenant has filed an application under S. 13 (1) of the Act on 10-4-89 showing deposits of the amounts due at the rate of rent from the tenant and has prayed for an order to condone delay and treat the deposits as validly made. In the circumstances of the instant case, the application is wanting in bona fides and does not deserve to be allowed. It has been found by both the Courts below that the tenant had not tendered the rent for the months of April, May and June, 1977 and his stand of having paid the rent for those months was found to be false. It has been found by both the Courts below that the tenant had not tendered the rent for the months of April, May and June, 1977 and his stand of having paid the rent for those months was found to be false. The deposit by the appellant-tenant of decretal amount which included the amount due from the tenant in respect of April, May and June, 1977 in compliance with the condition of stay order passed by the lower appellate Court staying eviction of the appellant until decision of appeal, cannot be regarded as a bona fide voluntary deposit so as to entitle the tenant to the benefit of extension of time. It is not in every case that a decree passed under S. 12 (1) (a) of the Act can be negatived by the tenant depositing the arrears of rent due under the decree. To invoke the benefit of discretion under S. 13 (1) of the Act, the tenant must offer a genuine explanation for non-deposit of rent and the subsequent deposit must be a voluntary act. The false stand of the tenant of having paid the arrears of rent and deposit of the amount of arrears after passing of the decree in fulfillment of the condition for staying execution of the decree for eviction are the circumstances which do not entitle the tenant to exercise of discretion in his favour under S. 13 (1) of the Act. The aforesaid application of the tenant made in this Court under S. 13 (1) of the Act is, therefore, rejected. ( 14 ) LEARNED counsel for the appellant cited a decision of this Court in Dilip Kumar v. Bhaiyalal (S. A. No. 52/85 decided on 26-10-88 : (reported in 1989 (1) Ren CJ 138) wherein a number of decisions have been relied upon for the proposition that whenever a dispute is raised as to the amount of rent and the provisional rent is not fixed decree for eviction on the ground of arrears of rent under S. 12 (1) (a) of the Act, cannot be passed. But the decision cited is not applicable to the instant case, being distinguishable on facts. But the decision cited is not applicable to the instant case, being distinguishable on facts. In the said case the plaintiff landlord had taken possession of a portion of the tenanted premises for his own use and after taking possession had sold that portion to another person but he still claimed from the tenant the rate of rent which was agreed for the entire premises. In the circumstances, the tenant raised the dispute that the plaintiff was not entitled to the agreed rent but was entitled to proportionate rent. There was, thus, a dispute within the meaning of Section 13 (2) of the Act requiring fixation of provisional rent. There is no such dispute arising in the instant case so as to require fixation of the provisional rent. In the Lower Appellate Court the only point raised by the appellant, which has been decided, is whether the appellant-defendant was in arrears of rent and had not paid the same in spite of service of notice of demand and the learned Lower Appellate Court decided the point against the defendant and affirmed the trial Court's finding in that behalf. The question of default in payment of rent being one of fact is binding in this second appeal. No point based on S. 13 (2) of the Act was raised before the learned lower appellate Court and the same therefore, does not merit consideration in this second appeal. In the circumstances, it cannot be held that the Court below has committed any error of law in passing the decree for eviction under S. 12 (1) (a) of the Act. ( 15 ) NO other question of law has been urged before this Court. ( 16 ) IN view of the discussion aforesaid, this appeal fails and is hereby dismissed. In the circumstances of the case, there shall, however, be no order as to costs. Appeal dismissed. .