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Madhya Pradesh High Court · body

2012 DIGILAW 321 (MP)

Mohammad Haroon v. Mohammad Rashid

2012-03-19

SUJOY PAUL

body2012
JUDGMENT : Both the aforesaid petitions are decided by this common order because the common questions are involved in both the petitions. These petitions under Article 227 of the Constitution are directed against the order dated 4.8.2011 passed by the court below, whereby the court below has struck off the defence of the present petitioner by invoking section 13(1)(6) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the 'Act') 2. Shri S.K.Shrivastava, learned counsel for the petitioner submits that the respondent filed a suit for eviction and recovery of rent (Annexure P/2) and alleged that he is the landlord and was getting Rs.200/- as rent from the petitioner. In turn, the petitioner has filed his written statement and in paragraph 4 of the said written statement specifically denied that the respondent is the landlord and, therefore, stated that the question of giving rent does not arise. The contents of para 4 of the plaint were also specifically denied. On the strength of this denial, learned counsel for the petitioner by taking assistance of section 13(2) and (3) of the Act submit that in view of this denial, the court below was first required to give following finding as under:- (i) Whether, respondent is the land lord ? (ii) In view of denial of amount of rent, the court below ought to have fixed the provisional rent and thereafter should have given an opportunity to the petitioner to deposit that rent in the court below and not payable to the respondent. 3. The bone of contention of Shri Shrivastava is that without dealing with this facet the court below has directly struck off the defence of the petitioner which is bad in law. He relied on a Full Bench decision of this Court, reported in 1975 JLJ 779 (Chhogalal v. Bhagwan Shri Satyanarain (Idol)) (Paragraph 9) and another judgment in the same volume at page 682 (Bachchoobhai v. Premanand). He also relied on 1999 (1) MPLJ 497 (Sankata Devi Verma vs. Jagdish Singh Chandel) in support of his aforesaid contention. 4. Per Contra, Shri Prashant Sharma submits that the respondents in his plaint in paragraph 1 has specifically stated that there was a rent agreement (Kirayanama) and petitioner has not specifically denied about the existence of this 'Kirayanama', to which he is a signatory. 4. Per Contra, Shri Prashant Sharma submits that the respondents in his plaint in paragraph 1 has specifically stated that there was a rent agreement (Kirayanama) and petitioner has not specifically denied about the existence of this 'Kirayanama', to which he is a signatory. The said 'Kirayanama' is also placed on record by the respondent along with his return. Learned counsel then placed reliance on a reply to the legal notice sent by the respondent to the petitioner. In para 2 of the reply to the legal notice the petitioner stated as under:- XXX XXX XXX 5. Learned counsel submits that the existence of 'Kirayanama' is not in dispute, the amount of rent is not in dispute and, therefore, it is not in dispute that the respondent is the owner of the property. Thus, both the contentions of the petitioner must fail and the court below has committed no error of law in invoking section 13(1)(6) of the Act and has rightly struck off the defence of the petitioner. He further submits that the petitioner has not preferred any application before the court below for deciding the provisional rent and for deciding the question of ownership of the property in question. He relied on (2000) 4 SCC 380 (Jamnalal and others vs. Radheshyam) 6. I have heard the parties and perused the record. 7. The court below by order dated 4.8.2011 has allowed the application preferred by the plaintiff under section 13(1)(6) of the Act. The present petitioner took a specific stand in the written statement that property belongs to Waqf Board. The plaintiff is not the owner/landlord of the property. Thus, the ownership of the property and also the amount of rent was disputed by filing a written statement. 8. Section 13(2) of the Act makes it obligatory for the court below in the event any dispute arises as to the amount of rent payable by the tenant to decide the provisional rent. Similarly, subsection (3) of section 13 of the Act prescribes that if there is a dispute as to the person or the persons to whom the rent is payable, the court is bound to direct the tenant to deposit the rent in the court. Before the court below the petitioner has raised both the objections, i.e., regarding amount of rent and regarding ownership of the property. Before the court below the petitioner has raised both the objections, i.e., regarding amount of rent and regarding ownership of the property. The court below in the impugned order has not dealt with these objections. There is no finding given by the court below as to why the defence taken by the present petitioner is not trustworthy. The court below could have invoked section 13(1)(6) of the Act only after deciding the said two points against the petitioner. 9. In Chhogalal's case (supra), a Full Bench of this Court has held as under:- “8. Sub-section (2) of section 13, in so far as material, provides that 'if there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation.” The sub-section is silent regarding the manner in which the dispute should be raised. The only requirement of this provision is that there should be a dispute as to the amount of rent payable by the tenant. The moment his requirement is fulfilled, it becomes the duty of the Court to fix a reasonable provisional rent. Having regard to the language of the provision, if the tenant has raised the dispute as to the amount of rent payable by him in the written statement, that would be sufficient for purposes of the sub-section. A dispute so raised will make it obligatory on the Court to fix the reasonable provisional rent. No further action on the part of the tenant, such as making of an application or inviting the attention of the Court to the Specific dispute or specifically asking the Court to fix the provisional rent, is needed to cast an obligation on the Court to fix the reasonable provisional rent, for the simple reason that the sub-section does not say that the tenant should file a separate application or specifically pray for fixation of provisional rent. In Jivrambhai v. Amar Singh (supra) p. 768 it has been rightly observed that “if the dispute has been raised in the written statement, the Court cannot refuse to determine provisional rent on the ground that a separate application has not been made”. In Jivrambhai v. Amar Singh (supra) p. 768 it has been rightly observed that “if the dispute has been raised in the written statement, the Court cannot refuse to determine provisional rent on the ground that a separate application has not been made”. There are certain observations in Firm Ganeshram Harivilas v. Ramchandra (supra; proposition No. 1 at p. 789) that it is not enough for the tenant to raise the dispute and in addition he must invite the attention of the Court to the dispute and the Court must be asked to fix a reasonable provisional rent. In our opinion, these observation do not lay down the law correctly as they add certain requirements in sub-section (2) which are not there. If the tenant disputes the rate and amount of rent in his written statement, as was done in the instant case, there arises a dispute within the meaning of sub-section (2) casting a duty on the Court to fix a reasonable provisional rent. The Court is expected to go through the pleadings of the parties for eliciting the matters in dispute and it is not necessary for the tenant to specially draw the attention of the Court that he has disputed the amount or rate of rent. Similarly, it is not necessary for him to specifically ask for fixation of provisional rent. Raising of a dispute in the written statement by itself amounts to an implied request, if any request is at all needed, for fixation of provisional rent.” (Emphasis Supplied) The Full Bench answered the reference accordingly and it was held that when a dispute is raised by the defendant/tenant in his written statement, it is not necessary that he should make an application separately inviting the attention of the court to the specific dispute and asking the court to fix the provisional rent. Thus, it is the statutory obligation casted on the court to undertake aforesaid exercise of examining the pleadings in the light of aforesaid parameters. Thus, the contention of Shri Prashant Sharma that the present petitioner has not filed any application before the court below in this regard is rejected. Thus, it is the statutory obligation casted on the court to undertake aforesaid exercise of examining the pleadings in the light of aforesaid parameters. Thus, the contention of Shri Prashant Sharma that the present petitioner has not filed any application before the court below in this regard is rejected. In Sankata Devi Verma's case (supra) this Court held as under:- “In view of sub-section (6) of section 13 of the M.P. Accommodation Control Act it is clear that there must be a failure on part of the tenant to deposit or pay the amount as required by the section. In a case where an application under section 13(6) is moved, it is bounden duty of the Court/RCA to see whether a dispute under section 13(2) or 13(3) has been raised either in the pleadings or by a separate application. If there is any dispute raised either under section 13(2) or section 13(3), of the Act, the Court is duty bound and obliged to decide the said dispute. If the Court decides the disputes and directs the tenant to make the payment or deposit the amount in the Court, then the tenant would be obliged to observe the spirit of the order passed by the Court. It is only on failure of the defendant to comply with the orders passed under section 13(2) or 13(3) of the Act, he can be visited with the penalty under section 13(6) of the Act. So long as the dispute raised under section 13(3) is not decided, an application filed under section 13(6) neither can be allowed nor can be rejected. (Paras 6-7)” (Emphasis Supplied) 10. In the light of the said two judgments of this Court, it can be safely concluded that once there exists a dispute regarding ownership of the property and amount of rent as per pleadings of the parties, it is obligatory for the court below to undertake the exercise of fixing provisional rent and then directing the tenant to deposit the same in the court. The court below has not decided the said two points and directly decided to strike off the defence of the petitioner. The judgment cited by Shri Prashant Sharma in Jamnalal's case (supra) has no application because in that case the rate of rent was not in dispute and there was only a disagreement with regard to amount of rent payable. The court below has not decided the said two points and directly decided to strike off the defence of the petitioner. The judgment cited by Shri Prashant Sharma in Jamnalal's case (supra) has no application because in that case the rate of rent was not in dispute and there was only a disagreement with regard to amount of rent payable. That judgment has no application in the peculiar fact situation of this case. In the written statement filed by the tenant, the dispute regarding amount of rent and ownership of the property was raised, the court below was under an obligation to address on these points. A reply to a legal notice is not a written statement. The decision of Full Bench in Chhogalal's case (supra) is clear which deals with the averments of the written statement. However, the court below while deciding the application under Section 13(1) (6) of the Act afresh will be at liberty to take into account all admissible material for the purpose of determination of the questions involved. 11. On the basis of aforesaid analysis, the order dated 4.8.2011 cannot be permitted to stand. It is, therefore, set aside. The matter is remitted back before the court below to decide the application under section 13(1)(6) of the Act afresh in the light of the legal position narrated above. The court below shall decide it in accordance with law without getting prejudiced by its earlier order dated 4.8.2011. 12. Petition is allowed to the extent indicated above. No costs.