JUDGMENT : Challenging the judgment and decree dated 23-1-1995 passed in Civil Appeal No. 2-A/94 by the II Additional Judge to the Court of District Judge, Jabalpur confirming the judgment and decree dated 9-7-1993 passed In Civil Suit No. 237-A/92 by VI Civil Judge Class-I, Jabalpur, this appeal under section 100 of the Code of Civil Procedure, 1908 has been preferred by the defendant/appellant. 2. The plaintiff seeking eviction from House No. 25 situated in Sadar Bazar, Jabalpur known as Wine Shop 'Umar Khaiyam' filed the suit on the ground allegedly available under section 12(1)(a) and (c) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). It is averred that the suit land was taken on lease for 51 years from Krishna Datt Sharma. Plaintiff had constructed the house and shop, however he is the owner of the said house indicated in the map delineated to the suit property marked as 'A', 'B', 'C', 'D', 'E' and 'F'. The defendant is the tenant in the said shop on a monthly rent of Rs. 750/- as per agreement executed on 16-6-1975. It is said that a civil suit bearing No. 4-A/78 seeking ejectment and arrears of rent was filed earlier by the plaintiff against the defendant in the Court of II Additional District Judge, Jabalpur which was decided on 30-11-1978 and a decree for arrears of rent only was granted. The eviction part was disallowed because the notice as required under section 106 of the Transfer of Property Act was not served on the defendant. Against the said judgment, First Appeal No. 40/79 was filed by the defendant that too was dismissed on 24-8-1982. Even on passing the decree against the defendant, arrears of rent has not been paid, however after sending a fresh notice dated 1-5-1982 this suit seeking eviction under section 12(1)(a) of the Act has been filed. It is further averred that the defendant is estopped to deny the title and contract of tenancy in view of the decree passed against him earlier and affirmed up to this Court. It is also said that K. D. Sharma, the original owner leased out the land to the plaintiff on payment of lease rent whereupon a house bearing No. 25 has been constructed, executing agreement on 20-3-1969. In the said agreement permission for sub-lease the said house has also been granted to the plaintiff. It is also said that K. D. Sharma, the original owner leased out the land to the plaintiff on payment of lease rent whereupon a house bearing No. 25 has been constructed, executing agreement on 20-3-1969. In the said agreement permission for sub-lease the said house has also been granted to the plaintiff. The defendant is now denying the title of the plaintiff and setting up title in 'Chhakkilal', however the decree under section 12(1)(c) of the Act for disclaimer of title may also be granted. It is pleaded that the denial of tenancy of the defendant showing Prakash Jaiswal (brother of defendant) as tenant is also unsustainable in view of the findings recorded in the earlier round of litigation. 3. The defendant by filing written statement admitted that the suit earlier filed by the plaintiff was decreed against him for arrears of rent, even up to the High Court in appeal. The other allegations were denied stating that the property was belong to Chhakkilal whose name was recorded in the record of Cantonment Board. The plaintiff himself is a tenant of one K. D. Sharma, thus having no right to file this suit showing the defendant as tenant. It is also submitted that the rent agreement executed with defendant in favour of plaintiff is void in view of the foregoing facts, however prayer is made to dismiss the suit. 4. The trial Court vide order dated 10-3-1989 struck off the defence of the defendant and the right to adduce the evidence was also closed and the suit was decreed on the ground of section 12(1)(a) and (c) of the Act and also for mesne profit. On filing the appeal before the first Appellate Court, the finding so recorded by the trial Court has been affirmed. During the pendency of the appeal, the appellant has filed application under Order 41, Rule 27 of Civil Procedure Code for taking document indicating delivery of possession by Prakash Jaiswal to the original owner K. D. Sharma and also filed an application seeking amendment to that effect in the written statement which were disallowed by the impugned judgment affirming the finding of trial Court in toto. 5. On filing the appeal, it was admitted on 30-8-1996 on the following three substantial questions of law which are reproduced as under :- "1. 5. On filing the appeal, it was admitted on 30-8-1996 on the following three substantial questions of law which are reproduced as under :- "1. Whether the first Appellate Court was justified in holding that as the order dated 10-3-1989 passed under section 13(6) of the M.P. Accommodation Control Act was not challenged either by way of an appeal or revision has attained finality ? 2. Whether the first Appellate Court was justified in holding that as the order passed under Order 17, Rule 3 of the Civil Procedure Code was not challenged by way of revision or an appeal, the same could not be challenged by the appellant ? 3. Whether the first Appellate Court was justified in rejecting the appellant's application filed under Order 41, Rule 27, Civil Procedure Code and application filed under Order 6, Rule 17 of the Code?" 6. The defendant/appellant has also filed I.A. No. 8957/2012 under section 100(5) of Civil Procedure Code to hear the appeal on some other substantial questions of law. On 14-8-2012 by passing a separate order the parties have been permitted to argue on the following substantial question of law : "Whether under the facts and circumstances of the case where tenant has denied the ownership of the landlord, decree under section 12(1)(c) of the M.P. Accommodation Control Act has rightly granted by two Courts below ?" In view of the aforesaid, in this appeal the aforesaid four substantial questions of law are required to be adjudicated. 7. On perusal of the record, it is not in dispute that present plaintiff had filed the Suit No. 4-A/78 against the defendant claiming arrears of rent and eviction of the same premises on 16-6-1975, which was decreed by the II Additional District Judge, Jabalpur on 30th November, 1978 granting decree of arrears of rent accepting landlord tenant relationship between the same parties. The eviction part was denied because the notice under section 106 of the Transfer of Property Act was not served as per law. On filing First Appeal No. 40/79, it was dismissed by the Division Bench of this Court vide judgment dated 28-4-1982. "7...............In these circumstances, the plaintiff had fully explained the reasons for granting the receipts in the name of Prakash Jaiswal, the brother of the defendant. On filing First Appeal No. 40/79, it was dismissed by the Division Bench of this Court vide judgment dated 28-4-1982. "7...............In these circumstances, the plaintiff had fully explained the reasons for granting the receipts in the name of Prakash Jaiswal, the brother of the defendant. Even the defendant, who was examined as D.W.I, admitted the execution of the rent note (Ex.P-1) but contended that after the execution of the rent-note, there was another oral agreement by which the plaintiff had agreed that the defendant's brother Prakash Jaiswal, would be the tenant of the suit premises which fact has been denied by the plaintiff. There is no other evidence in support of this contention except the said statement of the defendant himself. In these circumstances, no other conclusion was possible except the one reached by the learned trial Court that the plaintiff had successfully established that the defendant was the tenant and not his brother. No evidence has been led by the defendant that he paid any amount of rent for the period from August, 1975 onwards. The findings, therefore, that the defendant was in arrears of rent to the tune of Rs. 21,000/- also does not call for any interference." This Court found that the rent note (Ex.P/1) executed by the defendant in favour of plaintiff has been proved, however the landlord-tenant relationship between plaintiff and defendant is there. The plea taken by the defendant that his brother Prakash Jaiswal was the plaintiffs tenant was found devoid of any substance. In this regard, the document Ex.D/1 and D/2 i.e. the receipt of rent in favour of Prakash Jaiswal was also disbelieved, however observing that such finding is against the Judgment of Dhanapal Chettiar vs. Yesodai Ammal, AIR 1979 SC 1745 , thus the decree passed by the trial Court of arrears of rent was upheld. 8. The present suit has been filed by the same plaintiff against the defendant after serving a fresh notice demanding arrears of rent which was not deposited even after granting decree in earlier suit, however sought eviction under section 12(1)(a) of the M.P. Accommodation Control Act, where the defence has been taken that plaintiff itself is a tenant, therefore he cannot let the premises in favour of the defendant and the decree seeking eviction under section 12(1)(a) and (c) of the Act cannot be granted. 9. 9. The two Courts below held that the landlord-tenant relationship has been found established in view of the finding recorded in earlier round of litigation, however such finding would operate as res judicata. It has further been observed that in the subsequent suit the defendant cannot take the defence which was not found proved in between the same party. It is held that such defence would be amounting to denial of title, therefore granted decree for arrears of rent and disclaimer. In the said context now the question of law framed is required to be considered. 10. In Reference to Question No. I : On perusal of the record, it reveals that by the order dated 10-3-1989 the trial Court has struck off the defence of the defendant. On perusal of the record it reveals that the plaintiff has filed an application under section 13(6) of the M.P. Accommodation Control Act. The said application was decided on 2-2-1989 by the trial Court referring the judgment and decree passed in First Appeal No. 40/79 in earlier round of litigation. It is held that even after service of notice the rent was not paid within two months and within one month on filing this suit. By the same order with a view to afford one more opportunity, time to deposit the arrears of rent from 8-9-1990 till 2-3-1989 and to pay regular rent by 15th day of every month was allowed and the case was fixed on 9-2-1989 for settling date. Thereafter on 10-3-1989 upon hearing the application under section 13(6) of the Act, and on stating by the defendant, that he is unable to deposit the rent the defence was struck off. It is to be noted, the earlier suit was filed seeking recovery of rent from August, 1975 till the date of filing of the said suit and regular rent for future months. After granting decree for arrears and to pay rent prior to 15th day of every month, it was not paid or deposited. It is to be noted, the earlier suit was filed seeking recovery of rent from August, 1975 till the date of filing of the said suit and regular rent for future months. After granting decree for arrears and to pay rent prior to 15th day of every month, it was not paid or deposited. Section 13 of the Act confers protection to a tenant against eviction on fulfilling the twin conditions (i) that the arrears of rent should be deposited within one month from the date of service of summons in case it was not deposited after service of demand notice or within such further time as the Court may on an application granted; (ii) the tenant is bound to pay or deposit the month to month rent on or before 15th day of each succeeding months. As per sub-section (2) of section 13, if there is any dispute as to the amount of rent, on taking objection by the landlord or tenant, at the earliest opportunity the Court shall fix the provisional rent in relation to the accommodation, and it be deposited as per sub-section (1) of section 13. As per sub-section (3) of section 13, if there is a dispute by whom the rent is payable, this Court may direct the tenant to deposit the rent with the Court as per sub-section (1) or (2). It has further been specified in sub-section (4) that if a frivolous plea has been taken with respect to sub-section (3) by the tenant, the Court may strike out the defence and proceed with the hearing of the suit. As per sub-section (5) if the tenant has deposited the rent as specified under sub-section (1) or sub-section (2) of section 13, the decree of arrears of rent shall not be passed in favour of the landlord. But, in any case failure to deposit or pay amount of rent as required by section 13, the Court may strike out defence of tenant against eviction and shall proceed with the hearing of the suit. Sub-section (2) of section 12 is also relevant because it specifies on fulfilling the conditions so specified under section 13 delay in depositing rent may be condoned. Sub-section (2) of section 12 is also relevant because it specifies on fulfilling the conditions so specified under section 13 delay in depositing rent may be condoned. The proviso to sub-section (3) makes it clear that if the tenant is at fault and want to take the benefit of sub-section (3) of section 12 once in respect of any accommodation, but again makes a default in payment of rent for three consecutive months would not be entitled to such protection. In the case in hand the decree of arrears of rent; was passed by the trial Court on 30-11-1978 which was affirmed by the High Court on 24-8-1982 with respect to the same premises in between the same parties. Even after service of demand notice the rent was not paid within two months and after service of the summons of the suit it was not deposited or paid within a month. On filing an application under section 13(6) of the Act by the plaintiff, an opportunity was afforded to the defendant to pay the arrears as well as regular rent which was not availed by the defendant and on 10-3-1989 it was stated before the trial Court that He is unable to pay the rent, in such circumstances the order to strike out the defence has rightly been passed. The learned lower Appellate Court while dealing with the said issue has observed that against the said order no appeal or revision has been preferred, however it has become absolute. In the considered opinion of this Court in view of the foregoing discussions, it is clear that the order passed by the trial Court to strike out the defence of the defendant on 10-3-1989 is based upon the sound reasonings and due to non-compliance of section 13(1)(3)(4) and (5) of the Act. 11. In the considered opinion of this Court in view of the foregoing discussions, it is clear that the order passed by the trial Court to strike out the defence of the defendant on 10-3-1989 is based upon the sound reasonings and due to non-compliance of section 13(1)(3)(4) and (5) of the Act. 11. On the issue of striking dut of defence against eviction as envisaged under section 13(6) of the Act, this Court in the case of Manorama Devi wd/o Parmanand and others vs. Suresh s/o Kailash Narain and others, 1999 (1) MPLJ 436 has held as under :- "The obvious effect of the order,striking out the defence against eviction as contemplated under section 13(6) of the M.P. Accommodation Control Act, is that the defendant stands restricted from raising any plea which could affect the pleadings of the plaintiff as set out in the plaint in regard to the matter relating to the default, which is a ground envisaged under section 12(1) of the Act, for the grant of the decree. The defendant cannot be held to be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiffs case. The defence against eviction under section 12(1) of the M. P. Accommodation Control Act set up in the written statement by the defendants had been struck out by Order dated 6-3-1995. The obvious result of such striking out of the defence against eviction was that under a statutory fiction made available as envisaged under section 13(6) of the Act, the material facts which formed the edifice of the defence against eviction has to be taken to be totally absent and could not be deemed to have been pleaded. The assertion of facts constituting the pleadings in regard to the rate of rent clearly amounted to defence against eviction and since by statutory fiction these material facts could not be deemed to be there in the written statement and were liable to be ignored altogether, there could be no occasion to permit the defendants to lead evidence in support of a plea which was not there at all." If the ratio of the said judgment is made applicable in the present case then the finding so recorded by the two Courts below do not warrant any interference. 12. 12. In addition to it striking out of the defence of defendant-tenant under section 13(6) it is of twin nature (i) the defence recognizes by common law and; (ii) defences available to a tenant under the M.P. Accommodation Control Act. Under the common law defence the defendant may take a defence regarding nonavailability of landlord-tenant relationship and the plaintiff is not the owner of the property. On establishing the aforesaid his right cannot be taken away. While in a later case the tenant may take a defence to disprove the case of the landlord by adducing the cogent evidence and to establish the grounds under section 12(1)(a) are not available. On raising the defence regarding dispute under section 13(3) the Court is required to decide it at an earlier stage and thereafter the tenant is bound to deposit the rent as specified under section 13(1) of the Act. In the said context the judgment of Sabiha Masood vs. Tahahbur Ali Khan, 1998(2) MPLJ 610 is relevant which is reproduced as thus :- "3. In the suit for eviction based on a ground under section 12(1), the defendant has two types of defences (1) which are known as common law defence and (2) which are available to ,the tenant under the Accommodation Control Act itself. The Common Law defence are like the liability to pay the rent, the arrears of rent, the relationship of landlord and tenant and the ownership of the property. But under the Accommodation Control Act, the defences which are available to the tenant are to disprove the case of the landlord and show to the Court by leading cogent evidence that availability of a ground under section 12(1) is not made out. When a tenant challenges the ownership or the relationship of landlord and tenant, this may probably be a dispute under section 13(3) of the Act. A Court before striking out the defence is required to decide the said dispute. If despite direction the tenant does not deposit the rent then his defence available to him under the Accommodation Control Act can certainly be struck out by this striking out the defence available to a tenant under the Accommodation Control Act would not have the effect of striking out the defences of the tenant which are available to him under the Common/General Law. If a tenant wants to take advantage of the defences which are available to him under the Accommodation Control Act, then he should deposit the rent but if he does not deposit, then such defence would not be available to him. If such a tenant proves his common law defence by leading cogent evidence that there does not exist relationship of landlord and tenant or the plaintiff is not the owner or even by cross-examining the plaintiffs defences that a ground is not available to the landlord to evict the defendant, then this right is not hampered by striking out the defence. The effect is only that the defendant would not be permitted to lead evidence to disprove the availability of the ground under section 12(1) of M.P. Accommodation Control Act. 5. The Court below had given the time to the defendant to deposit the rent by 12-9-1997. The period had already expired. Considering the totality of the circumstances, it is however directed that if the tenant deposits the rent as claimed by the landlord or which has accrued in favour of the landlord latest by 3-11-1997, the deposit shall be treated to be a proper one. Not only this, the tenant is required to comply with them provisions of section 13(1) to have his defences available to him under the Rent Control Act. If the tenant does not deposit the rent then his defences against eviction available to him under M.P. Accommodation Control Act shall stand struck out." 13. In the context of the aforesaid, in the facts of the present case it can safely be observed that on account of not depositing the arrears of rent as directed under the earlier round of litigation even after service of summons and the orders of this Court, the order of striking out of the defence has rightly been passed. In the present case after the order dated 10-3-1989 of trial Court the common law defence is also not available in view of the finding recorded on the point of landlord-tenant relationship in the earlier round of litigation by this Court. In view of the foregoing discussions, the trial Court has not committed any error while passing the order dated 10-3-1989 and even if these findings may not have attained finality to challenge in appeal. Thus it would materially affect the well considered findings of two Courts. In view of the foregoing discussions, the trial Court has not committed any error while passing the order dated 10-3-1989 and even if these findings may not have attained finality to challenge in appeal. Thus it would materially affect the well considered findings of two Courts. Thus the Issue No. 1 is answered accordingly. 14. In Reference to Question No. 2 : On perusal of the order-sheets of the trial Court, it reveals that on 4-4-1990, the application filed by the defendant seeking adjournment to produce the evidence was rejected closing his right to adduce evidence. As per Order 17, Rule 3 of Civil Procedure Code if a party to a suit to whom the time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time was allowed, the Court may proceed under sub-rule (2) of Rule 17 of Civil Procedure Code. As per sub-rule (2) it is clear that on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit on one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. As per Order 9, Rule 6(a) of Civil Procedure Code, if plaintiff appears and defendant does not appear, and the suit is called upon hearing the Court may make an order that the suit be heard ex parte. In the context of the question of law so framed, it is required to be seen whether the action taken by the trial Court closing right to adduce the evidence exercising the power under Order 17, Rule 3 of Civil Procedure Code in the facts of the case is justifiable or not. On perusal of the record, it is clear that on 24-10-1989 the plaintiff has closed his evidence and thereafter the case was fixed for defence witness on 20-11-1989, 13-12-1989, 4-1-1990 and 30-1-1990. On the said dates the case was taken up at 12.00 P.M., 2.00 P.M. and 3.30 P.M. but on request the time was granted for 12-3-1990. On 13-3-1990, 19-3-1990 again the time was granted and fixed the case on 4-4-1990. On the said dates the case was taken up at 12.00 P.M., 2.00 P.M. and 3.30 P.M. but on request the time was granted for 12-3-1990. On 13-3-1990, 19-3-1990 again the time was granted and fixed the case on 4-4-1990. On the said date the time was sought for producing the certificate of lady doctor (gynaecologist) showing ailment to the defendant which was not found justifiable, however the right was closed, against which a revision was preferred before the District Court and thereafter a week's time as prayed by defendant was allowed to adduce evidence but the said opportunity was not availed by the defendant Thus closing the right proceeding ex parte after giving various dates the judgment was delivered by the trial Court. From the record, it is further apparent that against the said order passed by the trial Court, a revision was preferred wherein an opportunity to lead the evidence for a week was granted which has not been availed again by the defendant. In view of the foregoing discussion the finding of the lower Appellate Court is just and in conformity to law which do not warrant any interference. Accordingly the question No. 2 is answered against appellant. 15. In Reference to Question No. 3 : It is seen that the defendant has filed two applications, first is under Order 41, Rule 27 of Civil Procedure Code along with a document of delivery of possession by the brother of the defendant to K. D. Sharma. In the said application, it is merely said that the aforesaid document was not in the power, possession and custody of the appellant prior to 6-12-1994, however prayed to take the document on record. Under Order 41, Rule 27 of Civil Procedure Code parties to an appeal may produce the additional evidence before the Appellate Court if it establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed. Learned counsel is unable to show that why this document could not be filed earlier. Learned counsel is unable to show that why this document could not be filed earlier. While in the earlier round of litigation showing tenancy of Prakash Jaiswal with D. K. Sharma some documents were produced before the trial Court which were not taken on record because the landlord tenant relationship of the plaintiff and defendant No. 1 was fully established. This Court on the said issue has observed that the receipt of the furniture etc. and of tenancy with Prakash Jaiswal was not relevant. In the said context if the document filed by the appellant for delivery of possession by Prakash Jaiswal to the owner is not relevant to take on record and the plea taken in the written statement by way of amendment cannot be permitted to be incorporated. Thus in view of the findings recorded in the earlier round of litigation by the Division Bench of this Court the amendment in the written statement has rightly been rejected and the document so filed has rightly been declined to take on record. Accordingly question No. 3 is answered against the appellant. 16. In Reference to Question No. '.4.' On perusal of the record, it reveals that the trial Court as well as the lower Appellate Court believing the statement of plaintiff showing his ownership as. per lease deed (Ex.D/1) in favour of plaintiff by which the suit shop has been constructed by him. The Appellate Court on denying the ownership in the written statement and also as per findings recorded in earlier round of litigation by. this Court in F.A. No. 40/79, held that the plaintiff is the owner of the land and ,the said ownership has been denied by the defendant which is amounting to denial of title. In the said context it is suffice to observe that in the earlier round litigation this Court has not recorded a finding that the plaintiff is the owner of the land, he appears to be a landlord as defined under section 2(b) of the Act. As per document (Ex.D/1) it is clear that the original owner executed a lease deed-,of land whereupon the shop has been constructed by the plaintiff and let out to the defendant as permitted in the clause of the said lease deed, in such circumstances, title of the plaintiff has been denied by the defendant in the written statement. As per document (Ex.D/1) it is clear that the original owner executed a lease deed-,of land whereupon the shop has been constructed by the plaintiff and let out to the defendant as permitted in the clause of the said lease deed, in such circumstances, title of the plaintiff has been denied by the defendant in the written statement. The finding recorded on the ground of section 12(1)(c) of the Act by two Courts' is based upon the earlier Judgment of this Court in F.A. No. 40/79, however on having landlord-tenant relationship if the derivative title of the landlord has been denied by the tenant it would not be sufficient to grant the decree under section 12(1)(c) of the Act. It is made clear here that in a case of a disclaimer merely denial of title by the defendant is not sufficient, but the defendant ought to have set up title in other also. The guidance may be taken in this regard from the judgment of Apex Court in the case of Sheela and others vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 . Thus as per the finding recorded by the two Courts and the evidence brought on record, it is clear that the plaintiff and defendant are having landlord-tenant relationship. Thus the finding recorded by the two Courts below granting decree under section 12(1)(c) of the Act in favour of plaintiff is hereby set aside, but the decree under section 12(1)(a) of the Act is hereby maintained. 17. In view of the foregoing discussions, the suit filed by the plaintiff for granting the decree of eviction on the ground of section 12(1)(a) of the Act is hereby decreed setting aside the decree under section 12(1)(c) of the Act. Accordingly the appeal filed by the appellant is allowed in part maintaining the decree under section 12(1 )(a) of the Act, In the facts and circumstances of the case, plaintiff is also entitled to cost against the defendant-appellant throughout. Appeal partly allowed.