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Madhya Pradesh High Court · body

2000 DIGILAW 1135 (MP)

Sushila Shrivastava v. Nafees Ahmed Qureshi

2000-10-14

A.K.MISHRA

body2000
JUDGMENT 1. This appeal has been preferred by the plaintiff/appellant being aggrieved by the judgment and decree passed by the two Courts below. The suit filed by the plaintiff seeking ejectment of the defendant/tenant on the ground of arrears of rent and requirement of the plaintiff for residence has been dismissed. The suit was with respect to house No. 255, ward No. 16, Shinde Ke Chhawani, Lashkar, Gwalior. The plaintiff alleged that defendant was in arrears of rent to the extent of Rs. 588/-. Rate of rent was Rs. 50/- per month. Tenancy was oral and commenced from the first day of the month. The plaintiff obtained the house in partition with his father. After the death of the father, plaintiff has been realising the rent. The rent was due from August, 1983 which was not paid inspite of the notice. The plaintiff acquired the house for the purpose of residence. The plaintiff was residing in the said house by paying rent at the rate of Rs. 50/- per month as tenant. The defendant did not pay the rent within two months of the service of the notice nor handed over the possession, hence the suit was filed. The defendants filed the written statement and denied the plaint allegations and contended that he was not inducted as a tenant by Vishanswarup. He is occupying the suit house at the rate of Rs. 26/- per month. The factum of partition has also been denied. Vishanswarup has however released the rent in December, 1985. Plaintiff does not require the accommodation for residence. The defendant has spent the amount in repair work, of Rs. 3,500/- which he was entitled to get adjusted in the rent. Vishanswarup had filed the suit for requirement which was dismissed on 13.2.1976. Hence mode of partition was resorted to in order to get the defendant evicted from the suit house. Relationship of land-lord and tenant was also disputed by the defendant. 2. Trial Court came to the conclusion that defendant is occupying the suit premises by paying rent at the rate of Rs. 28/- per month. Trial Court dismissed the suit and the appellate Court affirmed the dismissal of the suit. However, appellate Court came to the conclusion that rent was due to be paid from August 1, 1983. 2. Trial Court came to the conclusion that defendant is occupying the suit premises by paying rent at the rate of Rs. 28/- per month. Trial Court dismissed the suit and the appellate Court affirmed the dismissal of the suit. However, appellate Court came to the conclusion that rent was due to be paid from August 1, 1983. Dispute under section 13(2) of the M.P. Accommodation Control Act was raised which was determined by the trial Court on 10.3.1987 by which it was ordered that rent from October, 1985 be deposited within 20 days and the dispute about the payment of rent from August, 1983 shall be decided at the time of the decision of the case on merits. The appellate Court while deciding the case on merits has held that defendant is in arrears from August, 1983 and accordingly passed the decree of recovery of rent. 3. Present appeal has been preferred by the plaintiff on the ground that the rent was not deposited regularly as required under section 13(1) of the M.P. Accommodation Control Act. Present appeal has been admitted on the following substantial question of law: "Whether the lower appellate Court, after holding that the defendant is in arrears of rent, was justified in refusing to grant decree under section 12(1)(a) of the M.P. Accommodation Control Act, 1961 ?" 4. Both the parties have also addressed this Court about the default committed, hence the additional substantial question of law is framed. Parties are heard on it, question "whether the defendant has committed default in depositing the rent under section 13(1) of the M.P. Accommodation Control Act." 5. The submissions raised by learned counsel appearing for the appellant are threefold. Firstly, the defendant has committed default in depositing the rent. It is submitted that rent from July, 1994 to November, 1994 was paid on 10th of January, 1995. Thus there is serious default committed by the defendant in depositing the rent. Secondly, the appellate Court decided the dispute finally on merits regarding the arrears and directed the deposit of rent from August, 1983. Thus the rent which ought to have been deposited by the tenant during the pendency of this appeal is for the period from 1.8.1983 to 30.9.1985, for twenty six months at the rate of Rs. 28/- per month. The amount comes to Rs. Thus the rent which ought to have been deposited by the tenant during the pendency of this appeal is for the period from 1.8.1983 to 30.9.1985, for twenty six months at the rate of Rs. 28/- per month. The amount comes to Rs. 728/- whereas only 21 months' rent was deposited on 12.4.1999 i.e. a sum of Rs. 588/- was deposited. Still the rent was in deficit by Rs. 140/-. The third submission raised by the learned counsel for the plaintiff is that the dispute raised did not fall within the purview of section 13(2) of the M.P. Accommodation Control Act. He has placed reliance on the decision of the Apex Court in the matter of Jamnalal and others v. Radheshyam. 2000 (2) JLJ 1 Submission of the learned counsel is that though after the hearing was over on 13.10.2000 of the present appeal, amount of Rs. 140/- has been deposited finding that the defendant was in default of depositing the amount. Thus the application moved on 14.10.2000 for condonation of delay is liable to be rejected. It is submitted that still there is no application seeking condonation of delay with respect to the default committed by the defendant/respondent in 1994. 4. Learned counsel appearing for the respondents strenuously submitted that it is a case where there was default in depositing the rent from 1.7.1994 to November 1994 but it cannot be said to be such so as to pass the decree of ejectment under section 12(1)(a) of the M.P. Accommodation Control Act as the rent has been deposited subsequently on 10.1.1995 for the said period. He submitted that there is yet another default about the same due to the mistake of calculation committed by the defendant as the plaintiff has claimed an amount of Rs. 588/- in the plaint as arrears of rent. Amount was deposited on 12.4.1999 on coming to know about the pendency of the present appeal whereas amount of Rs. 728/- ought to have been deposited as per the direction of the first appellate Court. The application for condonation of delay based on this part of the default has been tiled pointing out that it was the mistake of calculation and amount of Rs. 140/- has been deposited on coming to know of it. 728/- ought to have been deposited as per the direction of the first appellate Court. The application for condonation of delay based on this part of the default has been tiled pointing out that it was the mistake of calculation and amount of Rs. 140/- has been deposited on coming to know of it. After hearing of the appeal was over on 13.10.2000, as the application for condonation of delay was moved alongwith the statement, case was posted for rehearing on 14.10.2000 and parties were heard again. 5. What factually emerges from the rival submissions of the parties is that there is twofold default. Firstly in depositing the rent by the defendant for the period 1.7.1994 to 30.11.1994. The rent was required to be deposited by the 15th day of the next succeeding month. The rent was deposited as per the statement filed by the defendant, on 10.1.1995 for the said period. There is no application for condonation of delay moved even before this Court or before any of the Courts below. Thus the defaults are clearly committed with respect to deposit of rent as required under section 13(1) of the M.P. Accommodation Control Act, 1961. 6. It is also correct that rent as agreed to by both the counsel was required to be deposited under the decree of the first appellate Court on determination of the dispute finally from August, 1983 to September, 1985 i.e. an amount of Rs. 728/- ought to have been deposited for twenty six months, whereas the amount deposited towards rent was Rs. 588/- only. However, the condonation has been sought on the ground that it was the mistake of calculation as the plaintiff has claimed the rent of Rs. 588/- in the plaint. Thus there was mistake in depositing the rent on that count. 7. Learned counsel appearing for the defendant submitted that it is a case where the delay should be condoned in depositing the rent. He placed reliance on various decisions of this Court. In a decision of this Court in the matter of Phoolchand v. Chhotelal and another ( 1990 JLJ 434 ) it has been laid down that if a decree of eviction is passed under section 12 (1)(a) of the M.P. Accommodation Control Act, even if defendant has deposited the rent in execution, he cannot avoid the decree for ejectment. In a decision of this Court in the matter of Phoolchand v. Chhotelal and another ( 1990 JLJ 434 ) it has been laid down that if a decree of eviction is passed under section 12 (1)(a) of the M.P. Accommodation Control Act, even if defendant has deposited the rent in execution, he cannot avoid the decree for ejectment. Reliance has been placed by this Court on the decision in the case of Lachhobai Rathor v. Registered Shri Murti God Madan Mohanji ( 1988 JLJ 213 ). The submission raised by the learned counsel on the strength of the decision in the case of Lachhobai (supra) and in the case of Phoolchand (supra) and in the matter of Bhagwandas Pawaiya v. Regd. Firm Kailash Narayan and Bros. (1994, JLJ 174) is misconceived. These cases have been specifically overruled by Division Bench of this Court in the case of Nathibai v. Maheshwari Samaj Remola Trust, Ratlam and others, ( 1996 JLJ 368 ). Thus it is held that merely by depositing the rent at any time defendant cannot escape the liability of eviction until and unless the delay is condoned by the Court for sufficient cause and for that purpose the application is required to be made. 8. Learned counsel for the appellant relies on the decision of this Court in the case of Gurubachan Singh v. Vimla Bai [1994(1) Vidhi Bhasvar 132 (following 1970 JLJ 703)], Hon. Mr. Justice R.C. Lahoti, as he then was laid down the following proposition:- On amended section 13 coming into force, it applies to appeals pending and the tenant is obliged to comply with the amended provisions during the pendency of the appeal also and to deposit the rent punctually on month to month basis. The second proposition laid down is that if application for condonation of delay is not filed, the Court is justified in refusing to exercise the discretion to condone the delay. Thirdly, if an application has been filed seeking condonation of delay of the default committed before, the Courts below, can be entertained even in second appeal. In the present case, there is no application filed seeking condonation of delay for the period 1.7.1994 to 30.11.1994, by the defendant/respondent. Application for condonation of delay is only for the period from August, 1983 to September, 1985. In the present case, there is no application filed seeking condonation of delay for the period 1.7.1994 to 30.11.1994, by the defendant/respondent. Application for condonation of delay is only for the period from August, 1983 to September, 1985. Even if that delay is condoned, case of the defendant is not furthered and he has to suffer the decree for ejectment on the ground under section 12(1)( a) of M.P. Accommodation Control Act. 9. Learned counsel for the defendant also placed reliance on the decision in the case of O.P. Gaur v. Pannalal [1987 (I) MPWN 97], which in turn relied on the decision in the case of Lachhobai (supra) which has been overruled in the case of Nathibai (supra). The same view was taken in the case of Parvat Rao v. Babulal, [1987 (I) MPWN 102] in which also reliance was placed on the decision in the case of Lachhobai (supra). Thus the decision cited stands overruled by the division Bench decision of this Court in the case of Nathibai. 10. Learned counsel also placed reliance on the decision of this Court in the matter of Manoharlal Gopital Pande v. Dr. Abdul Mazid Khan [1991(1) MPLJ 232]. In the said case, the application for condonation of delay for late payment of rent was moved, but in the instant case as already mentioned there is no application for condonation of delay for the period 1.7.1994 to November, 1994. Hence the defendant is not entitled to invoke the discretion of this Court for condonation of delay. Learned counsel placed reliance on the decision of this Court in the case of Goverdhandas v. Ashok Kumar (1981 JLJ SN 73) so as to contend that delay can be condoned at the second appellate stage. There is no dispute with the said proposition but for that purpose the defendant must seek condonation of delay. 11. In the case of Mahrunnisha Begum v. Radheshyam and others [1991 (II) MPWN 105 = 1993 MPLJ 391 ] it is laid down that to avoid the decree under section 12(1)(a) of the M.P. Accommodation Control Act, it is necessary that tenant should deposit the arrears of rent as per sub-section (1) of section 13 of the Act. 11. In the case of Mahrunnisha Begum v. Radheshyam and others [1991 (II) MPWN 105 = 1993 MPLJ 391 ] it is laid down that to avoid the decree under section 12(1)(a) of the M.P. Accommodation Control Act, it is necessary that tenant should deposit the arrears of rent as per sub-section (1) of section 13 of the Act. The requirement of section 13 is that the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceedings, or within the month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may, on application made to it, allow in this behalf and thereafter the rent is required to be paid regularly on month to month basis by 15th of each succeeding month. 12. Another decision pressed into service by the learned counsel for the appellant is in the case of Mohammadia v. Mst. Parobai [ 1993 (I) MPWN 100 ] where Hon. Justice R.C. Lahoti, as he then was, held that for condonation of delay the application is necessary. Section 13 of the Act applies to the appeal also. His Lordship relied on the decision in the matter of Guruhachan Singh (supra). It was further observed that condonation of delay has to be applied for and secured by providing justification for exercise of discretion of the Court. 13. Another decision relied upon by the counsel for the appellant is in the matter of Gulab v. Rajnath [1997 (II) MPWN 121] wherein it has been laid down that if rent has not been deposited as per section 13(1), provisions of section 12(5) of the Act cannot be availed of. 14. Learned counsel appearing for the plaintiff has also submitted that on the strength of the decision in the matter of Jamnalal and others v. Radheshyam (supra), the dispute which was raised before the trial Court was unjustified and the amount ought to have been deposited within one month of the service of the notice. 14. Learned counsel appearing for the plaintiff has also submitted that on the strength of the decision in the matter of Jamnalal and others v. Radheshyam (supra), the dispute which was raised before the trial Court was unjustified and the amount ought to have been deposited within one month of the service of the notice. He pressed into service the following observation made by the Apex Court:- "In the instant case, the findings of the Court below are: that the tenant did not pay the rent for the period from March to July, 1976; indeed, the finding of the trial Court which was confirmed by the appellate Court is that the tenant forged receipts (Ex. D-1 to D-4) for the said months and that he had committed default in payment of rent. It appears that on the application of the landlord, the trial Court fixed provisional rent @ 60/- per month and left the question of arrears of rent to be decided on trial. Consequently, non-determination of provisional rent by the trial under sub-section (2), S. 13 of the Act, becomes inconsequential. There is thus non-compliance of section 13(1) of the Act and the tenant is not entitled to the benefit of section 13 (5) read with section 12(3) of the Act." 15. It is not necessary to go into that question in the present case as the plaintiff is held entitled to a decree. For the default committed in depositing the rent from 1.7.1994 to November, 1994 there is no application for condonation of delay for this period. There is yet another default of not depositing the amount as ordered by the first appellate Court. The amount which was deposited was in deficit by Rs. 140/-. Amount of Rs. 588/- was deposited whereas the amount which was required to be deposited was Rs. 728/- for twenty six months. Amount for the period of 21 months was deposited. Dispute was raised unjustifiably. However, whatever that may be, even if the delay is condoned in depositing of deficit rent of Rs. 140/-. no useful purpose would be served as there is no application for condonation of delay for the period 1.7.1994 to November, 1994 hence the plaintiff is held entitled to a decree under section 12(1) (a) of the M.P. Accommodation Control Act. No other submission is raised. 16. 140/-. no useful purpose would be served as there is no application for condonation of delay for the period 1.7.1994 to November, 1994 hence the plaintiff is held entitled to a decree under section 12(1) (a) of the M.P. Accommodation Control Act. No other submission is raised. 16. However, considering the hardship which may occur due to vacation of the premises, defendant/tenant is granted 4 months' time to vacate the suit premises on condition of furnishing undertaking before the executing Court within, one month to vacate the suit premises and hand over the peaceful possession and to pay the rent by that day till he vacates the premises on or before the expiry of the period. Appeal is accordingly allowed. Parties to bear their own costs.