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Madhya Pradesh High Court · body

2004 DIGILAW 553 (MP)

Narbada Prasad Agrawal v. Shyamu Bahwsar

2004-07-20

A.K.MISHRA

body2004
ORDER 1. In these writ petitions, petitioner has assailed an order (P-5) dated 1.3.2004 passed by learned 1st Additional District Judge, Raisen. 2. Defendant-petitioner Narbada Prasad is common tenant in all the writ petitions, suit has been filed seeking ejectment of tenant by the plaintiff-respondent in each of the petitions, with respect to portions of the tenanted premises. 3. Facts are being taken from WP No.145412004. Plaintiff-respondent has filed a suit for ejectment of the defendant-petitioner and for recovery of arrears of rent along with interest. Suit has been filed on the basis of the grounds contained under section 12 (1) (a), 12 (1) (c), 12 (1) (h) and 12 (1) (i) of M.P. Accommodation Control Act. 4. In written statement filed by Narbada Prasad in civil suit out of which W.P.1454/2004 arises, it has been denied that there is any relationship of landlord and tenant between plaintiff and defendant. Defendent-petitioner has set up an agreement which has been executed by late Shri Jhalkan Singh, husband of Smt. Ramkali bai. Agreement was executed on 24.12.1993. It has been denied specifically that defendant-petitioner is tenant of plaintiff's grandfather late Shri Rupnarain since 2.12.1994 at the rate of Rs.600/- per month. He has set up an agreement and ownership on the basis of said agreement. In written statement, para 11, it has been specifically contended by defendant petitioner that there exists no relationship of landlord and tenant, there is no question of payment of rent and the defendant-petitioner being in arrears of rent. 5. Learned trial Court, as per Order (P-5) dated 1.3.2004 passed in each of the cases has ordered that as the defendant has not deposited any rent after service of the summons as required, hence, defence under section 12 of M.P. Accommodation Control Act has been struck off. It has been specifically observed by the learned trial Court that other defences of the defendant-petitioner shall remain intact and he can adduce evidence in that regard. Similar orders have been passed in each of the cases which have been assailed in these writ petitions. . 6. It has been specifically observed by the learned trial Court that other defences of the defendant-petitioner shall remain intact and he can adduce evidence in that regard. Similar orders have been passed in each of the cases which have been assailed in these writ petitions. . 6. Shri M.K. Sharma, learned counsel appearing for petitioner has submitted that trial Court has, without conducting any enquiry, ordered striking out of the defence under M.P. Accommodation Control Act, hence, the order is bad in law, enquiry ought to have been held into dispute raised by petitioner, thereafter order of striking out of the defence could have been passed. 7. Shri Ashok Lalwani, learned counsel appearing for respondent-plaintiff landlord has submitted that no dispute under section 13 (2) has been raised, it was incumbent upon the defendant-petitioner to have deposited the rent within one month of the service of writ or summons. Having failed to do so and having failed to raise any dispute as to amount of rent payable by the tenant or as to the rate of rent, operation of provision of section 13 (1) is not inserted. 8. In Manaram v. Omprakash and others [ 1990 JLJ 197 ], a Division Bench of this Court has held that when defendant has denied the relationship of landlord and tenant and is not admitting himself to be a tenant, it cannot be said that dispute has been raised under section 13 (2) of M.P. Accommodation Control Act. In the instant case, it is clear that defendant has set up ownership in himself, he has' specifically stated that he is not at all a tenant, as such there is no question of his being in arrears of rent, he has set up ownership in himself on the strength of agreement dated 24.12.1993 executed by late Shri Jhalkan Singh husband of Ms. Ramkali bai, hence, in my opinion, petitioner has not raised any dispute which is contemplated under section 13 (2) or 13 (3) of M.P. Accommodation Control Act. Defence is clear and categorical that he is not at all a tenant, he is owner on the strength of agreement, there is no question of his being in arrears of rent, thus, there was no occasion for the trial Court to conduct an inquiry. Defence is clear and categorical that he is not at all a tenant, he is owner on the strength of agreement, there is no question of his being in arrears of rent, thus, there was no occasion for the trial Court to conduct an inquiry. Defendant has not admitted that he is a tenant, consequently there is no dispute as to the arrears of rent or rate, the very liability to pay the rent has been denied, thus, no enquiry was called for. Division Bench of this Court in Manaram v. Omprakash and others (supra) has held that even if the defendant denies that plaintiff is his landlord, provision of section 13 (1) is required to be complied with in order to protect defence under M.P. Accommodation Control Act. He is bound to deposit the rent which has not been deposited in the case and no dispute as to arrears has been raised. Division Bench of this Court in Manaram v. Omprakash and others (supra) has held thus: "7. A look to the pleadings about the dispute raised in the written statement filed by the petitioner, clearly shows that the dispute raised is that the respondent-plaintiff is not his landlord and there is no privity of contract between him and the plaintiff. When there exists such a dispute in a proceeding under section 13 (1) of the Act, the Court under section 13 (3) may direct the tenant to deposit with the Court the amount payable by him under sub-section (1) and in such a case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same, and that is what has been done in the present case by the two Courts below. Therefore, the petitioner cannot escape from the mandate of section 13 (1) of the Act. Therefore, the petitioner cannot escape from the mandate of section 13 (1) of the Act. The Division Bench of this Court in case of lnderlal [ 1967 JLJ 31 ], after placing reliance on two decisions of the Supreme Court in Messrs I and M Ltd. v. Pherose Framroze [AIR 1953 SC'73] and Babulal v. Nandram [ AIR 1958 SC 677 ] held: "Once a suit for ejectment on any of the grounds referred to in S. 12, is instituted, the provisions of sub-section (1) of section 13 operate against the defendant, and the Court acquires jurisdiction to deal with any claim or question arising under any of the provisions of section 13, no matter whether the relationship of landlord and tenant is admitted or denied by the defendant. Section 13 (1) does not say, or intend to say, that the plea of the defendant will determine whether he is or is not liable to make any deposit under that provision. It proceeds on the basis that a suit by a person claiming to be a landlord has been filed against the person alleged to be his tenant on any of the grounds mentioned in section 12. It is plain from section 12 that in a suit for eviction founded on any of the grounds mentioned therein, the plaintiff must allege that he is the landlord and that the defendant is his tenant. Therefore, the word 'tenant' used in section 13 (1) of the Act is merely connotative of the description which the plaintiff has given of the defendant and means nothing more than 'defendant'. It does not imply a defendant who has been found to be a tenant by the Court. 8. The next contention of Shri Mishra that as the dispute was raised under section 13 (2) also therefore the Court ought to have fixed the reasonable provisional rent under section 13 (2) and till then section 13 (1) remained controlled, has no merit. The las is settled by a Full Bench decision of this Court in Chhogalal v. Bhagwan Shri Satyanarain [ 1975 JLJ 779 ] that when a dispute is raised as to the amount of rent payable by the tenant or as to the person to whom it is payable, sub-section (1) gets controlled by sub-section (2) and (3). The las is settled by a Full Bench decision of this Court in Chhogalal v. Bhagwan Shri Satyanarain [ 1975 JLJ 779 ] that when a dispute is raised as to the amount of rent payable by the tenant or as to the person to whom it is payable, sub-section (1) gets controlled by sub-section (2) and (3). But we have to see whether in this case any such dispute was raised under section 13 (3) of the Act. Looking to the dispute raised in the written statement, it is abundantly clear that the petitioner-defendant came with a case that he is not the plaintiff's tenant and is tenant of Khachhuram Kuswah at the rate of Rs.10/- per month. The petitioner did not raise the dispute under section 13 (2) of the Act, in the alternative; neither this plea was raised before the trial Court nor before the revisional Court, now the plea cannot be entertained for the first time in a petition under Art. 227 of the Constitution, because it is the Court trying the suit, which has the jurisdiction to entertain, after recording reasons in writing, the plea under section 13 (2) of the Act at any subsequent stage of the suit. Therefore, the petitioner cannot be allowed to say that unless the dispute with respect to relationship of landlord and tenant is decided, he is not bound to comply with the provisions of section 13 (3) of the Act. In our opinion, on such a plea the Courts have rightly passed the orders under section 13 (3) of the Act. The petitioner cannot invoke the provisions of section 13 (2) of the Act in the facts of the case, as he has only denied the relationship of landlord and tenant between the plaintiff and him and has not deposited the rent under section 13 (1), his defence was rightly ordered to be struck off by the trial Court under section 13 (6). Such a striking out of the defence does not prejudice the case of the petitioner, as he can still establish that there is no relationship of landlord and tenant, and if it is so established, then certainly the suit of the plaintiff-respondent is bound to fai1." 9. Such a striking out of the defence does not prejudice the case of the petitioner, as he can still establish that there is no relationship of landlord and tenant, and if it is so established, then certainly the suit of the plaintiff-respondent is bound to fai1." 9. The Apex Court in lamnalal and others v. Radheshyam [ 2000 (2) JLJ 1 = 2000 (2) MPLJ 385] has also considered what is the dispute under section 13 (2) and enquiry is contemplated when a dispute as to rate of rent has been raised, not otherwise. The Apex Court has held thus: "15. A careful reading of the sub-section shows that the Court is enjoined to fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provision of sub-section (1) if there is a dispute as to the amount of rent payable by the tenant. The clause 'the Court shall' fix a reasonable provisional rent in relation to the accommodation clearly indicates that 'any dispute as to the amount or rent' is confined to a dispute which depends on the rate of rent of the accommodation either because no rate of rent is fixed between the parties or because each of them pleads a different sum. Where the dispute as to the amount of rent payable by the tenant has no nexus with the rate of rent, the determination of such dispute in a summary inquiry is not contemplated under sub-section (2) of section 13. Such a dispute has to be resolved after trial of the case. Consequently, it is only when the obligations imposed in section 13 (1) cannot be complied with without resolving the dispute under sub-section (2) of that section, that section 13 (1) will become inoperative till such time the dispute is resolved by the Court by fixing a reasonable provisional rent in relation to the accommodation. It follows that where the rate of rent and the quantum of arrears of rent are disputed, the whole of section 13 (1) becomes inoperative till provisional fixation of monthly rent by the Court under sub-section (2) of section 13, which will govern compliance of section 13 (1) of the Act. It follows that where the rate of rent and the quantum of arrears of rent are disputed, the whole of section 13 (1) becomes inoperative till provisional fixation of monthly rent by the Court under sub-section (2) of section 13, which will govern compliance of section 13 (1) of the Act. But 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 as determination of such a dispute is not postulated thereunder. Therefore, the obligation to pay/deposit the rent for the second and the third period aforementioned, referred to in section 13 (1), namely, to deposit rent for the period subsequent to the notice of demand and for the period in which the suit/proceedings will be pending (that is, future rent) does not become inoperative for the simple reason that section 13 (2) does not contemplate provisional determination of amount of rent payable by the tenant. As resolution of that category of dispute does not fall under section 13 (2), the tenant has to take the consequence of non-payment deposit of rents for the said periods. If he fails in his plea that no arrears are due and the Court finds that the arrears of rent for the period in question were I paid, it has to pass an order of eviction against the tenant as no provision section 13 of the Act protects him. 16. Sub-section (3) of section 13 of the Act deals with a case where the dispute is as to the person or persons to whom the rent is payable. 16. Sub-section (3) of section 13 of the Act deals with a case where the dispute is as to the person or persons to whom the rent is payable. If the Court satisfied that the dispute raised by t tenant in regard to the person or persons to whom the rent is payable is false frivolous, sub-section (4) says, the Court in its discretion may order striking c the defence against the eviction instead and proceed with the hearing of the case So also sub-section (6), in the case non-compliance in depositing payment of rent or any amount required by section 13 (1) of the Act enables the Court to order striking out the defence against the tenant instead and proceed with the hearing of the suit Sub-section (5) directs that if the tenant makes deposit or payment as required under sub-section (1) or sub-section (2) of section 13 of the Act, the Court barred from making a decree or order for the recovery of the possession of the accommodation on the ground of default in payment of rent by the tenant but the Court may allow such cost as it me deem fit to the landlord. 17. Where the rate of rent payable by the tenant for the accommodation is not in dispute and the quantum of arrears c rent is not paid/deposited either because the tenant pleads that he has paid the arrears of rent or adjusted the same towards the amounts payable by the landlord or in the discharge of hi liability, the tenant succeeds or fails on his plea being accepted or rejected in that behalf by the Court, in such a case sub-section (2) is not attracted because the plea taken by the tenant has to be adjudicated by a fill-fledged trial and not in a summary inquiry postulated for fixing a reasonable provisional rent in relation to the accommodation in question. This being the position, a tenant takes the risk of suffering an order of eviction by raising a dispute in regard to the amount of rent payable by him while admitting the rate of rent and not making payment or deposit under sub-section (1) because where the dispute raised by the tenant is outside the ambit of sub-section (2), sub-section (1) of section 13 of the Act does not become inoperative. " 10. " 10. In the instant case, there is no dispute as to the rate and as to person to whom the rent is payable as the defendant has not admitted plaintiff to be landlord. He has set up ownership in himself, categorical stand is that there is no question of any arrears as he is not a tenant, a dispute as contemplated under section 13 (2) or 13 (3) has not been raised, thus, there was no occasion to conduct an enquiry before passing of impugned order. 11. Defendant is free even after passing of the impugned order to raise the defences which are admissible except under M.P. Accommodation Control Act. Once the defendant is not admitting himself to be a tenant, he has no protection under M.P. Accommodation Control Act. It is only a tenant who is having protection under M.P. Accommodation Control Act and having failed to deposit the rent, no prejudice is going to be caused to the defendant in adducing the evidence with respect to the defence of ownership which he has taken. 12. Thus, I find no ground to make an interference in the order. Writ petitions are dismissed.