Judgment ( 1. ) BEING aggrieved by the judgment and decree dated 28. 02. 2001 passed by First Additional District Judge, Indore in Civil Suit No. 4-A/2000, whereby the suit filed by the appellant for eviction under Section 12 (1) (a) (c) and (e) of the m. P. Accommodation Control Act, 1961 (which shall be referred hereinafter as "act")was dismissed, the present appeal has been filed. ( 2. ) SHORT facts of the case are that the appellant land-lady Smt. Saroja Thawani filed a suit for eviction, arrears of rent and mesne profit on 08. 06. 1992 alleging that the appellant is owner of a house No. E-25, LIG Colony, Indore (which shall be referred hereinafter as "suit Property" ). It was alleged that the suit property was let out by the appellant to the respondent vide rent note dated 07. 10. 1976 on rent @ Rs. 601/- per month. It was alleged that the purpose of tenancy was residential and the tenancy commenced w. e. f. 15. 10. 1976. Further case of the appellant was that the respondent is in arrears of rent w. e. f 15. 01. 1990 and a habitual defaulter. It was alleged that a false FIR was lodged by Shri B. T. Agrawal, director of the respondent against Jaiprakash Thawani (brother in law of the appellant) in July 1991. It was alleged that because of the false complaint Jaiprakash thawani was required to run from pillar to post to save himself from the arrest by the police. It was alleged that the respondent prepared an agreement to sell the suit property in its favour and demanded execution of the sale deed. It was alleged that appellant never entered into an agreement to sell the suit property to the respondent. Further case of the appellant was that appellant requires the suit property bonafide for her residence. It was alleged that appellant is residing in united States of America and has decided to come back and settle at Indore with her family. It was also alleged that appellant has no other reasonably suitable accommodation of her own in the city of Indore. It was alleged that vide notice dated 08. 03. 1992 respondent was asked to vacate the suit accommodation, which was duly served on the respondent on 13. 04. 1992. On the basis of these allegations, it was prayed that a decree of eviction be passed. It was alleged that vide notice dated 08. 03. 1992 respondent was asked to vacate the suit accommodation, which was duly served on the respondent on 13. 04. 1992. On the basis of these allegations, it was prayed that a decree of eviction be passed. ( 3. ) THE suit was contested by the respondent by filing the written statement wherein, it was not disputed that the appellant is the owner of the suit accommodation. It was also not disputed that the status of respondent is tenant @ of Rs. 601/- per month. However, it was denied that the tenancy of the respondent was for residential purposes. It was alleged that the respondent is also running its office in the suit accommodation. Thus the tenancy of the respondent is composite in nature i. e. residential cum nonresidential. It was denied that the respondent was in arrears of rent and the respondent is habitual defaulter. So far as lodging of FIR is concerned it was alleged that Jaiprakash Thawani (brother in law of the appellant) who happens to be an officer of the Bank came to the suit accommodation where the respondent is residing in the month of July 1991 alongwith unsocial elements to get the suit accommodation vacated. It was alleged that in the circumstances FIR was lodged by the respondent which has not caused any nuisance. ( 4. ) IT was denied that the appellant requires the suit accommodation for her residence. It was denied that the appellant wants to settle down at Indore. It was alleged that appellant entered into an agreement with the respondent to sell the suit accommodation and in that connection only the notice dated 17. 08. 1991 was issued by the respondent. It was further alleged that appellant has no intention to come back to India. It was alleged that appellant is permanent resident of usa and is carrying on her business there only. It was further alleged that since the appellant has become the citizen of USA and has seized to be the citizen of india, therefore, appellant cannot live in India. It was prayed that suit filed by the appellant be dismissed. On the basis of pleadings of the parties, learned Trial court framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed. ( 5. It was prayed that suit filed by the appellant be dismissed. On the basis of pleadings of the parties, learned Trial court framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed. ( 5. ) RESPONDENT was duly represented by Shri S. S. Garg, Advocate. On 09. 01. 2008 the case was fixed for hearing in the month of March 2008, Vide order dated 11. 03. 2008 the case was fixed for final hearing on 25. 03. 2008 in presence of Shri S. S. Garg, advocate. On 25. 03. 2008 Shri Rakesh Sharma, advocate on behalf of respondent prayed time on the ground that Shri S. S. Garg is not well and case be adjourned. This prayer of adjournment was allowed and case was adjourned for 01. 04. 2008. On that date respondent himself was present and again sought time on account of sickness of the counsel. Again the case was fixed for arguments for 23. 04. 2008. Inspite of taking repeated adjournments neither the respondent nor his counsel was present. In the circumstances, this Court was left with no option except to hear and decide the appeal in absence of respondent. After hearing the appeal, case was reserved for orders. Thereafter Miss Vandana, Kasrekar, advocate mentioned before this Court that she has been engaged by the respondent. It was also requested that the appeal shall be argued by Shri G. M. Chapekar, Senior Advocate, therefore, the case be listed for rehearing. This is how the case was again listed for hearing. ( 6. ) SHRI B. L. Pavecha, senior advocate and Shri N. K. Dave, learned counsel for the appellant argued at length and submitted that the learned Court below committed error in holding that the appellant does not require the suit accommodation for her residence. It is submitted that to prove the case appellant has examined her brother-in-law and power of attorney who has stated on oath that the appellant is interested to settle down at Indore. It is submitted that in the facts and circumstances of the case learned Court below committed error in disbelieving the evidence adduced by the appellant. Learned counsel further submits that learned court below committed error in not passing the decree against the appellant under Section 12 (1) (c) of the Act. It is submitted that in the facts and circumstances of the case learned Court below committed error in disbelieving the evidence adduced by the appellant. Learned counsel further submits that learned court below committed error in not passing the decree against the appellant under Section 12 (1) (c) of the Act. It is submitted that the respondent had set-up an agreement to sell of the suit accommodation. Ultimately it was found that no agreement to sell was never executed by the appellant. It is submitted that this itself was sufficient for granting the decree under Section 12 (1) (c) of the Act, which has wrongly been refused. Leaned counsel submits that the findings of the learned Court below in refusing the decree of eviction under Section 12 (1) (c) and (e) of the Act is contrary to law and facts on record. ( 7. ) LEARNED counsel for the appellant further submits that learned Court below also committed error in dismissing the suit filed under Section 12 (1) (a) of the act. It is submitted that the respondent was in arrears of rent w. e. f. 15. 1. 1990. Demand notice was issued on 8. 3. 1992 which was replied by the respondent on 18. 6. 1992 in which rate of rent and arrears of rent were not disputed. Prior to it, the suit for eviction was filed by the appellant on 8. 6. 92. It is submitted that in the written statement, filed, by the respondent, also the rate of rent and arrears of rent were not disputed. Learned counsel submits that leaned Court below also found that the appellant has proved the ground for eviction under Section 12 (1) (a) of the Act. It is submitted that learned Court below committed error in refusing the decree of eviction on the ground of arrears of rent, in spite of giving the finding that ground under Section 12 (1) (a) of the Act is made out. Learned counsel submits that the written statement was filed by the respondent on 11. 2. 1994. The respondent has filed the statement of amount deposited by the respondent towards arrears of rent and also towards current months. It is submitted that no arrears of rent was deposited by the respondent within one month from the date of receipt of summons by the learned Trial Court. 2. 1994. The respondent has filed the statement of amount deposited by the respondent towards arrears of rent and also towards current months. It is submitted that no arrears of rent was deposited by the respondent within one month from the date of receipt of summons by the learned Trial Court. It is also submitted that from perusal of the chart it is evident that the respondent was defaulter in payment of rent. Learned counsel placed reliance on the decision passed by the Hon ble Apex Court in the matter of Jamnalal and others Vs. Radheshyam - 2000 (2) MPLJ 385, wherein the Honble Apex Court has observed as under:-"where the rate of rent payable by the tenant for the accommodation is not in dispute and the quantum of arrears of 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 his 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 full-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 subsection (2), sub-section (1) of section 13 of the Act does not become inoperative. There can be no debate on the proposition that the tenant is relieved of the consequences of default in payment of rent on his paying/depositing the rent under sub-section (1) at the rate last paid or at the rate fixed provisionally under sub-section (2) of section 13 of the Act but if the tenant takes a false or frivolous plea in regard to the amount of rent payable by him, which does not involve fixation of provisional rent under section 13 (2), he runs the risk of suffering an order of eviction either under sub-section (6) of section 13 or after trial under section 12 (1) (a) of the Act. It was held that 1977 MPLJ 822, and 446, 1970 mplj 902 , 1972 MPLJ 785 , 1975 MPLJ 657 (F. B.), and 1977 mplj 446 does not lay down correct law insofar as answer to question No. 1. The Division Bench is also not correct in holding "the key to the problem is found in the word thereafter (i. e. after that) which necessarily refers to the tenants[ liability becoming operative under the first part of section 13 (1 ). If that liability is arrested, the liability under the second part does not commence, because the liability under the second part commences only thereafter which means when the liability of the tenant under the first part is ripe for performance. " ( 8. ) LEARNED counsel further placed reliance on decision of the Apex Court in the matter of Atma Ram Vs. Shakuntala Rani - (2005) 7 SCC 211 , wherein the honble Apex Court has observed as under:- "it will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a ( 9. ) FROM perusal of the record, it appears that to prove the case appellant has filed the registered power of attorney Ex. P/1 which has been executed by the appellant at indore on 17. 02. 1997. Ex. P/2 rent note dated 07. 10. ) FROM perusal of the record, it appears that to prove the case appellant has filed the registered power of attorney Ex. P/1 which has been executed by the appellant at indore on 17. 02. 1997. Ex. P/2 rent note dated 07. 10. 1976, whereby the suit accommodation was taken on rent by the respondent @ of 601/- per month. Ex. P/3 is the copy of letter which has been issued by Shri Jaiprakash Thawani to the police station HIG, Indore, wherein it is stated that appellant has come to know that B. T. Agrawal has lodged a complaint against him. It was alleged that the complaint is baseless. Ex. P/4 is notice dated 08. 03. 1992, whereby the appellant asked the respondent to vacate the suit accommodation as the appellant requires the same for her residence. By this notice arrears of rent were also demanded. Ex. P/5 is the reply notice dated 18. 06. 1992, which was given by the respondent. Ex. P/6 is the notice issued by the respondent dated 17. 08. 1991 wherein, it was stated that father-in-law of the appellant was a close friend of respondent, It was further alleged that father-in-law of the appellant persuaded the respondent to purchase the suit property as it is, for a sum of Rs. 51,101/ -. It was alleged that respondent has paid a sum of Rs. 11,101/- as token. It was further alleged that since appellant is a respected lady, therefore, respondent does not wish to drag her in civil or criminal litigation. However, if the suit accommodation is not transferred, respondent shall be constrained to initiate legal proceedings against the appellant. Ex. P/7 is the rent receipt whereby the rent has been paid to the appellant. Apart from these documentary evidence appellant has examined Rajkumar Thawani, Power of Attorney, of the appellant as PW/1, while respondent has examined Dillramdw/1, Bhagatram DW/2, Tuljaram DW/3, Ramesh vishvakarma DW/4 and Ramdayal Sharma DW/5. ( 10. ) SO far as decree for eviction on the ground of arrears of rent under Section 12 (1) (a) of the Act is concerned in the matter of Jamnalal Vs. ( 10. ) SO far as decree for eviction on the ground of arrears of rent under Section 12 (1) (a) of the Act is concerned in the matter of Jamnalal Vs. Raheshyam, reported in 2000 (2) MPLJ 385, Honble apex Court has held that where the rate of rent payable by the tenant for the accommodation is not in dispute and the quantum of arrears of 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 his 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 that plea taken by the tenant has to be adjudicated by a full-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 die Act does not become inoperative. ( 11. ) FROM perusal of the record it appears that as per landlord who is appellant herein, respondent was in arrears of rent w. e. f. 15. 1. 1990, the demand notice ex. P-4 was issued on behalf of the appellant on 8. 3. 1992. No compliance of the notice was made by the respondent within two months as neither the notice was replied nor the rent was tendered/paid within two months, which is evident by the reply notice Ex. P-5 dated 18. 6. 1992 i. e. after two months. Learned Court below also found that ground for eviction under Section 12 (1) (a) of the Act was made out. Before the learned Court below appearance was made by the respondent on 3. 12. 1992, while the written statement was filed on 1. 2. 1994. Statement of arrears of rent was filed by the respondent. In the written statement also there is no dispute regarding arrears of rent and the rate of rent. Before the learned Court below appearance was made by the respondent on 3. 12. 1992, while the written statement was filed on 1. 2. 1994. Statement of arrears of rent was filed by the respondent. In the written statement also there is no dispute regarding arrears of rent and the rate of rent. As per chart submitted by the respondent the rent was deposited by the respondent from time to time, of which details are:- ( 12. ) AFTER perusal of the aforesaid statement it can safely be said that the respondent was defaulter right from the beginning, as the respondent did not comply any part of Section 13 (1) of the Act. Initially responded failed to deposit the arrears of rent within one month. Subsequently, respondent failed to deposit rent in time for the month of January 1994, April 1994, June and July 1994. From 1994 to 1997 no rent was deposited by the respondent month to month. On 10. 10. 1997 also only Rs. 4,908/- was. deposited by the respondent, which is hardly a rent of eight months, while the respondent was in arrears of rent from August 1994. ( 13. ) THE impugned judgment and decree was passed by learned Court below on 28. 2. 2001, thereafter an application was filed by the respondent on 26. 3. 2001 under Section 151 of CPC, wherein full particulars of depositing the rent were given by the respondent and in the application it was prayed that the same be kept on record. This application was registered separately as Misc. Judicial Case. Vide order dated 27. 3. 2001 learned Court below in absence of appellant passed an order whereby the record was called from the record room and case was fixed on 30. 3. 2001. On the fixed date behind the appellant, application filed by the respondent was allowed and without giving any opportunity of hearing to the appellant, it was held that respondent shall not be treated as defaulter on the ground that respondent has not deposited the arrears of rent within one month which was not the prayer of respondent. ( 14. ) SINCE by the impugned judgment learned trial Court disposed of the suit and no review application was filed by the respondent, therefore, there was no justification on the part of learned Trial Court to pass further order on 30. 3. ( 14. ) SINCE by the impugned judgment learned trial Court disposed of the suit and no review application was filed by the respondent, therefore, there was no justification on the part of learned Trial Court to pass further order on 30. 3. 2001 holding that the respondent shall not be treated as defaulter. This act of the respondent in filing the application and allowing the application by the learned trial Court itself speaks in volume that the respondent was defaulter and to come out from peril of eviction an effort was made by the respondent/tenant, which was also supported by the learned trial Court by passing the order dated 30. 3. 2001 in absence of appellant. ( 15. ) IT is true that strict compliance of Section 13 (1) of the Act was not made by the respondent in depositing the arrears of rent and also the rent which was payable month to month and the respondent is not entitled to protect its eviction under Section 12 (3) and 13 (5) of the Act. But inspite of that no decree of eviction can be passed in favour of appellant because of the default on the part of appellant herself as no ground under Section 12 (1) (a) of the Act is made out because the suit was filed by the appellant within two months from the date of receipt of demand notice by the respondent. As per the plaint demand notice dated 8. 3. 92 was served on respondent on 13. 4. 92 and the suit was filed on 8. 6. 92. Since the suit was filed within two months from the date of notice, therefore, the same was premature. In view of this the learned Court below committed error in holding that a ground under Section 12 (1) (a) of the Act is made out. ( 16. ) SO far as the decree of eviction under Section 12 (1) (e) of the Act is concerned, it is true that the appellant who is landlady has not come in witness box. However, appellant has examined her Power of Attorney holder Rajkumar who is none else but the brother of the husband of the appellant. ( 17. ( 16. ) SO far as the decree of eviction under Section 12 (1) (e) of the Act is concerned, it is true that the appellant who is landlady has not come in witness box. However, appellant has examined her Power of Attorney holder Rajkumar who is none else but the brother of the husband of the appellant. ( 17. ) FROM perusal of the judgment impugned herein it is evident that learned court below has disbelieved the evidence adduced by the appellant on the ground that appellant is living at USA since last 15 to 20 years and is doctor by profession and also appellant is having two daughters in the age group of 15 to 18 years, who were born in USA and are living there, therefore, in the circumstances it cannot be said that appellant shall settle down in India. ( 18. ) FROM the evidence on record it is amply proved that appellant is well settled and is doctor by profession. Learned Court below has also found that it is always not necessary for the landlord to enter into the witness box for proving the requirement and the same can be proved by examining the Power of Attorney holder. Learned Court below has dismissed the suit on the ground that the appellant has lost citizenship of India, therefore, appellant is not entitled for a decree of eviction. The suit was also dismissed on the ground that the appellant has settled at USA and appellant is also having grownup daughters who have been born and brought up at USA. Learned Court below also dismissed the suit on the ground that the respondent has proved that the Power of Attorney holder of the appellant has made an effort to sale the suit property. ( 19. ) IN the matter of Ramkubai Vs. Hajarimal, reported in AIR 1999 SC 3089 , honble Supreme Court has held that in a suit for eviction filed on the ground of bonafide requirement, it is not essential that landlord must enter witness box to support his case. Bonafide requirement is not a fact which could be established only by landlord. In the matter of Bashir Vs. Hajarimal, reported in AIR 1999 SC 3089 , honble Supreme Court has held that in a suit for eviction filed on the ground of bonafide requirement, it is not essential that landlord must enter witness box to support his case. Bonafide requirement is not a fact which could be established only by landlord. In the matter of Bashir Vs. Smt. Hussain Bani, reported in 2005 (2) MPLJ 230 , in a case where the suit for eviction was filed by a landlady aged 80 years and examined the power of attorney holder who was the member of her family it was held that power of attorney holder can prove the requirement on her behalf. In the matter of Shiv Narain Soni Vs. Parwati Bai, reported in 1997 {1} Vidhi Bhasvar 280, it has been held that landlady herself is not required to prove bona fide. This can be deposed by her holder of power of attorney. In the matter of Vimladevi Vs. Dulichand, reported in 19+94 (1) MPJR 144, wherein owner/landlady a house wife did not enter witness box. Her husband, also a power of attorney holder appeared and deposed to all relevant facts from his personal knowledge. It was held that in a eviction suit non examination of plaintiff is not fatal. ( 20. ) UNDOUBTEDLY, appellant is a non resident Indian who born in India. There is no law which prevents NRI to keep his property in India. Similarly no law prohibits a landlord from obtaining a decree of eviction on the ground that landlord is not the citizen. Brother-in-law of the appellant is residing in India. Appellant is having the accommodation in India. Appellant is pursuing the suit since 1992. It is not expected from the appellant to pursue the suit of eviction at India, herself which has taken 18 years to reach the final adjudication that too, up to this Court. Appellant has executed the Power of Attorney Ex. P-1 which is dated 17. 2. 1997 which has been executed by the appellant in the office of sub-Registrar at Indore, which goes to show that the appellant is visiting India from time to time. ( 21. ) APPELLANT is not after money. Appellant has inducted the respondent as tenant vide rent note Ex. P-2 dated 14. 11. 1976, on payment of rent @ Rs. 601/-per month. ( 21. ) APPELLANT is not after money. Appellant has inducted the respondent as tenant vide rent note Ex. P-2 dated 14. 11. 1976, on payment of rent @ Rs. 601/-per month. No efforts were made by the appellant to enhance the rent from 1976 to 1992 when the suit was filed. From 1992 to 2008 appellant continues to be the owner of the suit property and did not sell the suit accommodation, which itself shows that the evidence adduced by the respondent that the appellant wants to sell the suit accommodation is without any basis. The long persuasion of 18 years of the appellant for getting the possession of the suit accommodation itself shows that the appellant requires suit accommodation bona fidely. The bona fide need of the appellant has been further proved by the statement of PW-1, who is not only the Power of Attorney holder, but also the brother-in-law of the appellant. India is a developing country. In the era of globalization when the government is trying to attract the foreigners and NRI to invest money in India, there is no justification to deny a decree of eviction to a landlady who was born and brought up and is having deep roots in India, and wants to settle in India in her old age. Denial of decree to such a landlady who has proved her worth as doctor in foreign country will mean to cease her relation with India for all times to come. ( 22. ) IN the facts and circumstances of the case this Court is of the opinion that appellant has proved her bonafide requirement and has also proved that appellant is having no alternative accommodation of her own to meet her requirement. In the circumstances learned Court below committed error in dismissing the suit under Section 12 (1) (e) of the Act. ( 23. ) SO far as the decree of eviction under Section 12 (1) (c) of the Act is concerned the act of nuisance is based on the complaint filed by the respondent with the police and also the notice issued by the respondent, wherein respondent alleged that appellant entered into an agreement to sell the suit property with the respondent. The complaint lodged by the Power of Attorney holder of the appellant is on record. The complaint lodged by the Power of Attorney holder of the appellant is on record. No efforts were made by the appellant to ask the respondent to produce the FIR lodged by the respondent. So far as agreement to sell is concerned, it is true that the respondent has failed to prove the said agreement. A tenant who is in occupation of suit accommodation, whose landlord is residing abroad, is claiming agreement to sell in his favour alleged to have been executed by the landlord is itself sufficient to disturb the peace of landlord. This act of the respondent itself was likely to affect adversely and substantially the interest of the appellant the act of respondent in claiming an agreement to sell in his favour and failed to-prove itself adversely affects the interest of appellant. In the opinion of this Court learned trial Court committed error in dismissing the suit for eviction under Section 12 (1) (c) of the Act. ( 24. ) IN view of this the appeal filed by the appellant is allowed. Impugned judgment and decree passed by the learned trial Court is set aside and a decree of eviction is passed in favour of appellant and against the respondent under Section 12 (1) (c) and (e) of the Act with a direction to respondent to vacate the suit accommodation forthwith and to pay arrears of rent @ Rs. 601/- per month w. e. f. 15. 1. 1990, in which the amount deposited by the respondent from time to time shall be adjusted. It is further made clear that to remove the apprehension of the respondent that the appellant wants to sale the suit accommodation, it is further directed that in case the appellant is compelled to file the execution for satisfaction of the decree of eviction, the appellant and her PO A/brother shall submit an affidavit before Executing Authority to the effect that the appellant shall not transfer suit accommodation for a period of five years from the date of getting possession. In case the suit accommodation is not vacated within a period of two months, the respondent shall be further liable for payment of mesne profits from the date of judgment @ Rs. 5,000/- per month. ( 25. ) WITH the aforesaid directions this appeal stands allowed. With costs through out. Appeal allowed.