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Madhya Pradesh High Court · body

2004 DIGILAW 285 (MP)

ROHIT MAHESHWARI v. DHRUV KUMAR

2004-03-22

RAJENDRA MENON

body2004
Judgment ( 1. ) BY this petition under Article 227 of the Constitution challenge is made to an order dated 22-4-2003 by which delay in deposit of rent made by respondent-tenant has been condoned. ( 2. ) IT is the case of the petitioner that he is landlord of the suit property and has filed a suit for eviction against the respondent after issuing notice on 6-2-2001 claiming arrears of rent from 1-11-98. Case of the petitioner is that when in spite of notice rent was not paid suit was filed and when notice was issued defendant appeared in the Trial Court on 4-7-2001 and filed his written statement on 29-9-2001, did not deposit the rent being Rs. 300/- per month. However, defendant deposited the rent as due from 1-11-1998. Thereafter when rent was not paid in accordance with the provisions of Section 13 (1) of the MP. Accommodation Control Act and when the suit was at the stage of final hearing on 18-2-2003 respondent moved an application vide Annexure p-4 under Section 13 (1) of the M. P. Accommodation Control Act praying for condoning the delay in payment of rent. Even though the application was opposed by the petitioner this application has been allowed and delay in payment of rent has been condoned. It is the case of the petitioner that under the provisions of Section 13 of the Act the Court is not empowered to condone the delay and, therefore, the order impugned condoning the delay is unsustainable having been passed contrary to the provisions of law. ( 3. ) IT was submitted by Shri Sanjeev Jain, learned Counsel for the petitioner that under Section 13 (1) of the M. P. Accommodation Control Act two obligations are entailed on a tenant. First he has to deposit the rent which is due prior to filing of the suit within one month of service of notice or such further time as the Court may allow and thereafter the second condition is that he has to deposit rent before the 15th day of every month. It was submitted by shri Jain that respondent having not deposited the rent in view of the law laid down by the Supreme Court in the case of Jamnalal Vs. Radheshyam, reported in 2000 (4) M. P. H. T. 218 (SC) = 2000 (2) MPLJ 385, so also in B. C. Kame Vs. It was submitted by shri Jain that respondent having not deposited the rent in view of the law laid down by the Supreme Court in the case of Jamnalal Vs. Radheshyam, reported in 2000 (4) M. P. H. T. 218 (SC) = 2000 (2) MPLJ 385, so also in B. C. Kame Vs. Nemi Chand Jain, reported in AIR 1970 SC 981 , failure to deposit the rent within stipulated period entitles the landlord to seek eviction on that ground and the Court was not competent to condone the delay. By filing a detailed written submission learned Counsel has tried to emphasis that when the statutory provisions contemplates certain things to be done in particular manner it has to be done strictly in accordance thereof and if the procedure is not followed consequences have to follow. It was submitted by him that in the fact and circumstances of the case the learned Court has no jurisdiction or authority to condone the delay. ( 4. ) HOWEVER, refuting the aforesaid submissions Shri Mangal, learned Counsel for respondent argued that delay in deposit of rent can be condoned and there is nothing in the Act which does not empower the Court to condone the delay. Placing reliance on the judgment of this Court in the case of Kanhaiyalal Vs. Narendra Kumar, 1987 (II) MPWN 8, Shyamcharan vs. Dharamdas, AIR 1980 SC 587 , and a recent judgment of the Apex Court in the case of Nasiruddin and others Vs. Sita Ram Agarwal, (2003) 2 SCC 577 , it was submitted by Shri Mangal that the Court is empowered to condone the delay. Thereafter placing reliance on other various judgments it was submitted by him that there being no error apparent on the face of the record no interference under Article 227 of the Constitution is called for. ( 5. ) HAVING heard learned Counsel for the parties and on perusal of the records it is seen that under Section 13 (1) of the M. P. Accommodation control Act, 1961, it is provided that a suit or other proceedings being instituted by a landlord the tenant has to deposit the rent due within one month of service of summons or notice or within such further time as the Court may on an application made to it allow in this behalf. It is, therefore, clear that the court is empowered to extend time limit for deposit of amount of rent on an application moved in this behalf. ( 6. ) READING of the aforesaid provision does not indicate that the court is not empowered to condone or extend the time limit for deposit of rent. The question does not require to be gone into in much detail in view of enunciation of law in this regard made by the Supreme Court in the case of nasiruddin and others (supra ). The Supreme Court in the aforesaid case while considering the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 in Para 40 of the judgment has considered the question with regard to extension of time and condonation of delay. While dealing with the said question special reference is made to the Madhya Pradesh Accommodation Control Act and the provisions of Section 13 (1) and (6) of the M. P. Act in Paras 23 and 24 of the aforesaid decision. In Para 26 after considering the provisions of Section 13 (1) of the M. P. Act it has been emphasised by the supreme Court as under:-"the M. P. Act provides for the power of the Court to extend the time in the event sufficient cause therefor is shown which is absent in the Rajasthan Act. " it is clear from the aforesaid observation that the provisions of Section 13 (1) of the M. P. Act clearly provides for extension of time. The Supreme court thereafter again considered the provisions of Delhi Rent Control Act and has observed that time can be extended. Subsequently, after analysing the entire situation in Para 40, it has been concluded by the Court that wherever the Special Act provides for extension of time or condonation of default, the court possesses the power to condone the delay and extend the time. It is only when no such power is conferred that the Court is prevented from exercising the power. The observations made in the aforesaid judgment as detailed hereinabove clearly negate the arguments advanced by Shri Sanjeev Jain, learned Counsel for the petitioner. ( 7. It is only when no such power is conferred that the Court is prevented from exercising the power. The observations made in the aforesaid judgment as detailed hereinabove clearly negate the arguments advanced by Shri Sanjeev Jain, learned Counsel for the petitioner. ( 7. ) APART from the aforesaid Single Bench of this Court in the case of Kanhaiyalal (supra) has also held that the delay can be condoned by the competent Court and for doing so an earlier judgment of the Supreme Court in the case of Shyamcharan Vs. Dharamdas (1980 JLJ 280) was considered. This judgment in the case of Shyamcharan Sharma Vs. Dharamdas was also taken note of by the Supreme Court in the case of Nasiruddin and others (supra)while interpreting the provisions of Section 13 (1) of the M. P. Accommodation control Act. ( 8. ) APART from the aforesaid in the following case also a Division bench of this Court has held that the delay in deposit of rent can be condoned. [see, Manohar Singh Marwaha Vs. State of M. P. and others, 2003 (I) MPJR 12 ]. ( 9. ) CONSIDERING the legal position that emerges from the decisions in the aforesaid cases the argument of Shri Sanjeev Jain, learned Counsel for petitioner to the effect that delay in deposit of rent due can not be condoned is clearly misconceived and can not be sustained. ( 10. ) AS far as the merits of the case is concerned learned Court after considering the facts and circumstances of the case has exercised its discretion and has condoned the delay for the reasons recorded in the impugned order. Exercise of this discretion on just and fair consideration and the reasons can not be substituted by this Court on a different reason in writ jurisdiction under article 227 of the Constitution. ( 11. ) ACCORDINGLY, I find no substance in this writ petition and, there-fore, the writ petition as well as MWP No. 839/2003 both are dismissed. Writ Petition dismissed.