JUDGMENT 1. Being aggrieved by the judgment and decree dated 15.4.2005 passed by Additional District Judge, Khachrod, in Civil Regular Appeal No. 17-A/2005 whereby the judgment and decree dated 31.3.2004 passed by Civil Judge, Class I, Khachrod in Civil Suit No.109-A/2001 was confirmed, the present appeal has been filed, which has been admitted for final hearing vide order dated 4.5.2006, on the following substantial question of law : "(i) Whether in the circumstances of the case the refusal on the part of Courts below to condone delay in payment of arrears of rent and consequent striking out of defence against eviction of the defendant/appellant have been justified?" 2. Short facts giving rise to this appeal are that a suit for eviction was filed by the respondents against appellant on 23.1.1998 under section 12(1)(a) and (d) of the M.P. Accommodation Control Act (which shall be referred hereinafter as "Act") alleging that the appellant is tenant in the suit accommodation @ Rs.300/- per month and has paid rent upto 31.12.1993 and is in arrears of rent with effect from 1.1.1994 which has not been paid in spite of notice of demand dated 11.8.1997 which was duly served on the appellant. Further case of the respondent was that the suit shop was let out to the appellant for carrying-on business of utensils in the name and style of M/s. Hori Patra Bhandar but the appellant has locked the shop since last 4 years and is not using the suit shop for the purpose for which it was let out. It was further alleged that son of the appellant has opened another shop in the front line of suit shop in the same name and style and appellant has shifted from Khachrod to Ujjain. On the basis of aforesaid facts a decree of eviction was prayed. 3. After the service, appellant made appearance through his counsel on 24.6.1999 and submitted the written statement on 18.11.1999 wherein it was not disputed that the appellant is tenant in the suit accommodation @ specified in the plaint. However, so far as arrears of rent is concerned, it was denied that the appellant is in arrears of rent with effect from 1.1.1994. It was alleged that appellant has paid the rent upto 31.7.1997 and has never refused to pay the rent. It was also denied that the appellant is not using the suit accommodation for carrying-on the business. However, so far as arrears of rent is concerned, it was denied that the appellant is in arrears of rent with effect from 1.1.1994. It was alleged that appellant has paid the rent upto 31.7.1997 and has never refused to pay the rent. It was also denied that the appellant is not using the suit accommodation for carrying-on the business. However, it as alleged that Mohanlal, son the appellant is having the separate shop in the front line of suit shop in the name and style of M/s. Hori Patra Bhandar. It was also alleged in the written statement that appellant has lent a sum of Rs.50,000/- to the respondents on payment of interest @ 1% per month, out of which only Rs.1,000/- has been re-paid by the respondents and the balance amount has not been paid. It was alleged that upon demand vide notice dated 7.8.1997 by the appellant, the suit has been filed. 4. On the basis of pleadings of the parties, learned trial Court framed the issues, recorded the evidence and decreed the suit under section 12(1)(a) and (d) of the Act against which an appeal was filed by the appellant, which was also dismissed, hence this appeal. 5. Shri T.N. Singh, learned senior counsel for the appellant submits that learned Courts below committed error of law in passing the decree under section 12(1)(a) and (d) of the Act against the appellant. It is submitted that there was dispute regarding arrears of rent and on 31.1.2001 appellant deposited the rent from 1.8.1997 to 31.5.2001 and also moved an application for condonation of delay. It is submitted that vide order dated 31.1.2001, the learned trial Court held that the dispute raised by the appellant regarding the arrears of rent cannot be decided without recording of evidence. By the said order it was further directed that appellant should deposit the rent for which according to him appellant is in arrears, failing which appellant may be held defaulter. It was also observed that so far as the prayer of condonation of delay is concerned that aspect shall be considered at the time of final judgment. It is submitted that after passing of the order, the appellant also deposited arrears of rent from 1.1.1994 to 31.7.1997 on 20.4.2001. It was also observed that so far as the prayer of condonation of delay is concerned that aspect shall be considered at the time of final judgment. It is submitted that after passing of the order, the appellant also deposited arrears of rent from 1.1.1994 to 31.7.1997 on 20.4.2001. Learned counsel for the appellant submits that inspite of depositing the entire arrears of rent upon application of the respondents, the defence was struck-off vide order dated 24.4.2001 without passing any order on the application for condonation of delay. It is submitted that the order passed by learned Courts below whereby the defence was struck off is illegal and deserves to be quashed. It is submitted that there was no justification in dismissing the application for condonation of delay. It is submitted that firstly the appellant deposited the entire rent and secondly no order was passed on the application for condonation of delay, therefore, there was no occasion for striking-out the defence of the appellant. 6. Learned counsel for the appellant submits that since the appellant has deposited the entire arrears of rent and has also continued to deposit the rent regularly during pendency of the suit, therefore, no decree of eviction could have been passed against the appellant, as appellant was entitled for the benefit under section 12(3) and 13(5) of the Act. So far as the decree under section 12(1)(d) of the Act is concerned, learned counsel for the appellant submits that appellant was deprived to lead evidence on the ground that the defence of appellant was struck-off. It is submitted that if an opportunity would have been given to the appellant to adduce the evidence, then appellant would have proved that appellant has not locked the shop since last 4 years and is using the same for the purpose for which it has been let out to the appellant. It is submitted that the appeal deserves to be allowed and after setting-aside the judgment and decree passed by learned Courts below the case deserves to be remanded back to the learned trial Court for deciding the suit afresh after giving an opportunity to adduce evidence to the appellant. 7. Shri M.K. Jain, learned counsel for the respondents supports the decree passed by learned Courts below and submits that the conduct of the appellant was not fair through out the trial. 7. Shri M.K. Jain, learned counsel for the respondents supports the decree passed by learned Courts below and submits that the conduct of the appellant was not fair through out the trial. It is submitted that appellant did not comply with the provision of section 13(1) of the Act till the dispute was raised. It is also submitted that so far as the plea raised by appellant regarding payment of rent from 1.1.1994 to 31.7.1997 is concerned, the appellant filed the photo copies of the cash-books and ledgers to demonstrate that the rent was duly paid to the respondents from time to time. It is submitted that since the documents submitted were filed without getting the same compared from the original, therefore, the respondents moved an application to direct the appellant to deposit the original documents which should be kept in the safe custody. It is submitted that the said application was opposed by the appellant and vide order dated 31.1.2001, it was directed by learned trial Court to deposit the original documents which shall be returned to the appellant after the evidence. It is submitted that after the direction of learned trial Court, an application was filed by appellant on 20.4.2001 under Order VI rule 17 of CPC wherein the prayer of appellant was to withdraw the dispute raised by him in the written statement regarding arrears of rent. It is submitted that the said application was dismissed by learned trial Court vide order dated 24.4.2001 against which a revision petition was filed by appellant before this Court which was numbered as CR 535/2001 and vide order dated 11.5.2001 further proceedings of the suit were stayed, by this Court. It is submitted that the said revision petition was got dismissed by appellant vide order dated 11.7.2002 with liberty to move an appropriate application for review before learned trial Court. It is submitted that in compliance of this, review petition was filed by the appellant for reviewing the order dated 24.4.2001 on 9.8.2002 which was dismissed vide order dated 7.10.2002. 8. It is submitted that in compliance of this, review petition was filed by the appellant for reviewing the order dated 24.4.2001 on 9.8.2002 which was dismissed vide order dated 7.10.2002. 8. Learned counsel for the respondents further submit that after dismissal of the application filed under Order VI rule 17 of CPC whereby the permission was sought to withdraw the dispute, another application for amendment was filed by appellant on 11.11.2002 wherein appellant proposed to amend the written statement to the effect that it was agreed between the parties that the amount of rent shall be adjusted from the loan amount which was given by the appellant to the respondents. It is submitted that this application was also dismissed vide order dated 2.12.2002. It is submitted that in the circumstances, no illegality has been committed by learned trial Court in dismissing the application for condonation of delay and also striking-out the defence of appellant. It is submitted that appellant prepared the forged documents, i.e., cash-books and ledgers to demonstrate that the rent was paid and when the appellant was directed to produce the original documents, then the appellant prayed for amendment of written statement and withdrawal of the dispute and further prayed for raising a fresh dispute. It is submitted that in the circumstances, the appeal deserves to be dismissed. Learned counsel for the appellant submits that the learned Courts below committed error of law in presuming that the appellant prepared the forged cash-books and ledgers. It is submitted that the same were deposited by the appellant alongwith application dated 12.5.2000. This position was disputed by the counsel for the respondents alleging that all the documents were not filed. 9. After going through the record, it appears that the dispute was raised by the appellant for the first time regarding arrears of rent in the written statement filed on 18.11.1999 wherein it was alleged that the rent has been paid from 1.1.1994 to 31.7.1997. However, from 1.8.1997 also which was not in dispute, the rent was not deposited, when the application was filed by the respondents to deposit the original documents, then the appellant moved the application for amendment in written statement and, to withdraw the dispute regarding the arrears of rent. However, from 1.8.1997 also which was not in dispute, the rent was not deposited, when the application was filed by the respondents to deposit the original documents, then the appellant moved the application for amendment in written statement and, to withdraw the dispute regarding the arrears of rent. However, by that time, the rent was deposited by appellant from 1.8.1997 to 31.5.2001 and also thereafter, on 20.4.2001 the arrears of rent were deposited by the appellant from 1.1.1994 to 31.7.1997. Since the appellant deposited arrears of rent and continued to deposit monthly rent regularly, therefore, there was no justification on the part of learned trial Court to struck-off the defence of the appellant. Since the documents were filed by the appellant, therefore, learned Courts below committed error of law in presuming that appellant has prepared forged documents. In view of this, the learned trial Court committed error in passing the impugned order dated 24.4.2001 whereby the defence of the appellant was struck-off. 10. In the matter of Jamnalal v. Radheshyam [ 2000(2) JLJ 1 ], wherein the Hon'ble apex Court has examined the position of law relating to section 12(1)(a) of the Act at length and has held that where the rate or rent is not in dispute and only the dispute relating to arrears of rent then it does not fall under section 13(2) of the Act and if the tenant fails to comply with the provisions of section 13(1) of the Act, then the landlord is entitled for decree of eviction. 11. From perusal of the record, it appears that the appearance was made by the appellant on 24.6.1999 and written statement was filed on 18.11.1999, after obtaining adjournment on 24.6.1999, 16.8.1999 and 5.10.1999. As per section 13(1) of the Act, it was the duty of appellant to deposit the arrears of rent from the date of service of summon within 30 days and continue to deposit the monthly rent regularly. From 24.6.1999 to 18.11.1999 neither any dispute was raised by the appellant under section 13(2) of the Act nor the compliance of section 13(1) of the Act was made. So far as depositing the monthly rent is concerned, appellant failed to deposit the monthly rent till 31.1.2001, as on 31.1.2001 appellant deposited the monthly rent from 1.8.1997 to 31.5.2001 keeping his dispute alive regarding payment of rent to the respondents from 1.1.1994 to 31.7.1997. So far as depositing the monthly rent is concerned, appellant failed to deposit the monthly rent till 31.1.2001, as on 31.1.2001 appellant deposited the monthly rent from 1.8.1997 to 31.5.2001 keeping his dispute alive regarding payment of rent to the respondents from 1.1.1994 to 31.7.1997. Since the contention of the appellant was that the appellant has paid the rent upto 31.7.1997, the appellant was bound to deposit the rent regularly from 1.8.1997 to 31.5.2001. Undisputedly, after the receipt of demand notice dated 11.8.1997 neither the rent was tendered by the appellant nor the same was paid to the respondents within a period of two months, therefore, the ground under section 12(1)(a) of the Act was made out. Since the compliance of section 13(1) of the Act by depositing the arrears of rent and the monthly rent was not made by the appellant from 24.6.1999, when the appellant made appearance till 18.11.1999, when the appellant raised dispute in the written statement. Appellant also failed to deposit admitted arrears of rent and monthly rent upto 31.1.2001. So far as application for condonation of delay is concerned, appellant moved the application on 31.1.2001 while the appellant deposited the rent on 31.1.2001 from 1.8.1997 to 31.5.2001. By that time no arrears were deposited from 1.1.1994 to 31.7.1997. Even after depositing the arrears on 20.4.2001 from 1.1.1994 to 31.7.1997, no application for condonation was filed for this delay. 12. Even if, it is assumed that for the sake of argument that the learned trial Court committed error in dismissing the application for condonation of delay in depositing the rent, the condonation was sought for default on payment of rent from 1.8.1997 to 31.5.2001. Even if, it would have been allowed then too there was no application for condoning the delay for depositing the rent from the period 1.1.1994 to 31.7.1997. In the facts and circumstances of the case, this Court is of the view that the learned Courts below committed error in striking-out the defence of the appellant but rightly dismissed the application for condonation of delay in depositing the rent from 1.8.1997 to 31.5.2001, as no application was filed for the delay in depositing the rent from 1.1.1994 to 31.7.1997 which was deposited on 20.4.2001. However, since the appellant has not tendered the arrears of rent after receipt of demand notice within a period of two months and has failed to move any application for condonation of delay in depositing the arrears of rent for the period from 1.1.1994 to 31.7.1997 which was deposited on 20.4.2001, therefore, the appellant is not entitled for any protection under section 12(3) and 13(5) of the Act. 13. In view of this, the appeal stands dismissed and the judgment and decree passed by learned Courts below are confirmed. No order as to costs.