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2000 DIGILAW 643 (MP)

Gangadevi v. Rukmanidevi

2000-07-10

S.P.SRIVASTAVA

body2000
JUDGMENT S.P. Srivastava, J. 1. Heard the learned counsel for the defendants/tenants/appellants as well as the learned counsel representing the plaintiff/landlord/respondent. 2. Perused the record. 3. This second appeal had been admitted on the following substantial question of law: "Whether on failure of trial Court to determine provisional rent under Section 13(2) of M.P. Accommodation Control Act, a decree for eviction under Section 12 (1) (a) of the M.P. Accommodation Control Act could be passed ?" 4. The learned counsel for the appellants in support of this appeal has placed reliance on the decision of this Court rendered by a Full Bench in the case of Chhogalal v. Bhagwan Shri Satyanarain (Idol), reported in 1975 JLJ 779 . 5. The aforesaid decision came up for consideration before the Hon'ble Supreme Court in the case of Jamnalal and Ors. v. Radheshyam, reported in (2000) 4 SCC 380 and was disapproved. The Apex Court had not only disapproved the decision of this Court in the case of Chhogalal (supra) but had also disapproved the decisions of this Court in the case of Ganeshram Harvilas v. Ramachandra Rao rendered by a Division Bench reported in and in the case of Dewabai v. Bhamarlal Dongarsingh and Ors., reported in 1977 MPLJ 446. 6. The Apex Court in the case of Jamnalal (supra) had clearly observed that 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 and the obligation to pay/deposit the rent for the second and third period i.e., to deposit the rent for the period subsequent to the notice of demand and for the period in which the suit/proceedings will be pending (future rent) does not become inoperative. The proposition that the liability of the tenant to deposit the monthly rent for the preceding month under the second part of Section 13 (1) did not commence until an Order under Sub-section (2) of Section 13 was found to be not correct. The observations to that effect made in Dewabai's (supra) were found to be not laying down correct law. 7. The observations to that effect made in Dewabai's (supra) were found to be not laying down correct law. 7. Taking into consideration the ratio of the decision of the Apex Court in the case of Jamnalal (supra) as well as the decision of this Court in the case of Basheer Khan v. Ramgopal, S.A. No. 175/98 decided on 3-12-1998, the substantial question of law referred to hereinabove, has to be answered in favour of the plaintiff. 8. The learned counsel for the appellants does not dispute this but has urged that considering the facts and circumstances of this case, coupled with the fact that the Full Bench decision in the case of Chhogalal (supra) was in force during all this period, the delay in the deposit of the rent was liable to be condoned. 9. I have given my anxious consideration to the aforesaid submission. 10. The first Appellate Court has noticed that the rent due for the period 1-8-1986 to 30-9-1986 was deposited on 22-4-1988. The rent for the period 1-10-1986 to 30-11-1986 was deposited on 13-1-1989 and the rent for the period 1-12-1986 to 30-9-1987 was deposited on 19-1-1989. The rent due for the period 1-10-1987 to 3041-1988 was deposited in the month of February, 1989, and the rent for the period 1-12-1988 to 31-3-1989 was deposited on 12-1-1990. Even subsequent to the aforesaid period, it was observed that the tenant continued to make defaults in depositing the rent due within time. The first Appellate Court has found that the tenant had not given any explanation for the inordinate delay in the matter of depositing the rent due and there had been defaults in depositing the rent for a period of one year or more. In the circumstances, in the absence of any explanation for the delay, the first Appellate Court had refused to condone the default in the payment of rent. 11. A learned Single Judge of this Court in the decision in the case of Badrilal v. Rajmal, reported in 1997 MP ACJ 317 had observed that where the tenant did not commit one but committed defaults for several months as if Section 13 (1) of the Act did not exist at all such a conduct was simply not condonable. 11. A learned Single Judge of this Court in the decision in the case of Badrilal v. Rajmal, reported in 1997 MP ACJ 317 had observed that where the tenant did not commit one but committed defaults for several months as if Section 13 (1) of the Act did not exist at all such a conduct was simply not condonable. In the present case as has already been noticed hereinabove the tenant-defendant had been a persistent defaulter and had never cared for either moving an application seeking condonation of delay in making deposit or furnishing any explanation whatsoever for the inordinate delay in making the required deposits as envisaged under Section 13 (1) of the Act. The Court below, therefore, did not commit any error in holding the tenant a defaulter as envisaged under. Section 12 (1) (a) of the Act. 12. Considering the facts and circumstances as brought on record, no justifiable ground can be said to have been made out for any interference by this Court in the discretion exercised by the Court below in the matter relating to the condonation of delay in making the deposits especially taking into account the nature and scope of the jurisdiction envisaged under Section 100, CPC. 13. This second appeal deserves to be and is hereby dismissed. 14. However, the learned counsel for the appellants has stated that the suit giving rise to this second appeal had been filed in the year 1974. Taking into consideration the age of the appellant No. 1, he sought for an indulgence of this Court and prayed for a reasonable time to vacate the premises in dispute. The learned counsel for the plaintiff/respondent/decree-holder has been heard on this aspect of the matter. 15. The learned counsel for the plaintiff/respondent has no objection to the grant of 6 months time for vacating the premises in dispute by the tenant/appellants but requested that this indulgence be granted subject to the terms and conditions which may be deemed fit and proper protecting the interest of the plaintiff. 16. 15. The learned counsel for the plaintiff/respondent has no objection to the grant of 6 months time for vacating the premises in dispute by the tenant/appellants but requested that this indulgence be granted subject to the terms and conditions which may be deemed fit and proper protecting the interest of the plaintiff. 16. Taking into consideration the facts and circumstances in their totality, it is provided that the execution of the impugned decree for eviction shall remain kept in abeyance for a period of 6 months from today subject to the condition that the tenant/defendants file an undertaking on an affidavit before the executing Court within two weeks clearly indicating therein that the tenant/appellants will handover the peaceful vacant possession of the premises in dispute to the plaintiff/respondent/decree-holder on or before 9-12-2000 and shall not in between induct any one else into possession thereof and further the entire amount of rent due under the decree including the rent/damages for the period of 6 months indicated hereinabove is deposited with the executing Court along with the undertaking. 17. In the event of default in complying with any of the conditions indicated hereinabove, this interim Order shall stand automatically vacated.