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2013 DIGILAW 1121 (MP)

Saroj Lalwani v. Kishanlal

2013-09-16

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J.:- This appeal is by the plaintiff which was admitted by a Bench of this Court on the following substantial question of law: - “Whether the lower Appellate Court committed an error of law in dismissing the plaintiffs suit without reversing the finding of the trial Court on issues No. 2 and 2B” 2. Facts giving rise to filing of the appeal, briefly stated, are that the plaintiff filed a suit, inter alia, on the ground that he is the owner of the building situate in Sarafa Bazar, Bhopal. The suit shop situate on the ground floor which was let out to the defendant on a monthly rent of 31.87P. It was further pleaded that plaintiff required the same bona fide for the purpose of re-construction and the defendant is in arrears of rent for the months of April-May, 1980. Accordingly, the decree for eviction under section 12(1)(a) and (h) of the M.P. Accommodation Control Act, 1961 was sought. 3. The defendant filed written statement in which, inter alia, the need of the plaintiff for re-construction was denied. It was further denied that the defendant is in arrears of rent. It was also pointed out that defendant had sent the rent by money order, however, the plaintiff refused to accept the same. 4. The trial Court by judgment and decree dated 30-11-1993, inter alia, found that the plaintiff has failed to prove the ground under section 12(1)(h) of the Act. However, the Court held that despite notice (Exhibit-P-16) to the defendant, he failed to tender the rent for the months of April-May, 1980. Accordingly, the decree for eviction under section 12(1)(a) of the Act was granted. The lower Appellate Court, inter alia, held that summons of the suit were served on the defendant on 3-4-1985 and on 22-4-1985 the defendant had deposited a sum of 1848.50P. Thus, the defendant had deposited the entire arrears of rent within a month from the date of service of summons. On the basis of list furnished by the defendant, the lower Appellate Court further recorded a finding that the defendant has complied with the provisions of section 13(1) of the Act. Accordingly, the decree passed by the trial Court was reversed. 5. Learned counsel for the appellant submitted that the lower Appellate Court grossly erred in reversing the judgment and decree passed by the trial Court. Accordingly, the decree passed by the trial Court was reversed. 5. Learned counsel for the appellant submitted that the lower Appellate Court grossly erred in reversing the judgment and decree passed by the trial Court. It is further submitted that the lower Appellate Court ought to have appreciated that the defendant during the pendency of the suit committed default in making payment of rent for the months of May and June, 1994, May, 1995 and February, 1996 in accordance with the provisions of section 13(1) of the Act and, therefore, the decree under section 12(1)(a) ought to have been granted. It is also urged that there is no evidence on record to show that entire arrears of rent were deposited by the appellant within a period of two months from the date of service of notice and section 13(1) of the Act casts a statutory duty on the tenant to deposit the rent, therefore, mere withdrawal of rent does not amount, to waiver. While referring to decision of Supreme Court in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co., AIR 1959 SC 689 , it was submitted that when a statute prescribes a mode of doing particular thing in particular manner, that thing has to be done in that manner alone. In support of his submissions learned counsel for the appellant has placed reliance on the decisions in the cases of Waman Shriniwas Kini (supra), Mangilal v. Sugan Chand Rathi (deceased after him his heirs and legal representatives and another, 1964 MPLJ (S.C.) 124 = AIR 1965 SC 101 , Sarup Singh Gupta v. Jagdish Singh and others, AIR 2006 SC 1734 , Voltas Ltd. v. State of A.P., (2004) 11 SC 569, Mohd. Ishak and others v. Hafiz Ibrahim and others, 1980 JLJ 423 . 6. On the other hand, learned counsel for the respondent submitted that on receipt of summons within a period of one month the entire arrears of rent was deposited, therefore, the lower Appellate Court has rightly reversed the finding with regard to ground under section 12(l)(a) of the Act. It is also submitted that by withdrawing the amount of rent the appellant waived the right to contend that respondent is not entitled to benefit of section 12(3) of the Act. It is submitted that a right can be waived even by conduct. It is also submitted that by withdrawing the amount of rent the appellant waived the right to contend that respondent is not entitled to benefit of section 12(3) of the Act. It is submitted that a right can be waived even by conduct. It is also submitted that the instant case is not a case of wilful default. In support of his submissions learned counsel has placed reliance on the decisions in the cases of Pyarelal v. New Delhi Municipal Committee and another, AIR 1968 SC 133 , D.C. Oswal v. V.K. Subbiah and others, AIR 1992 SC 184 and RF (Rasat and Farhat) Charitable Trust, Hyderabad v. Special Deputy Collector (General) Land Acquisition, Hyderabad and others, AIR 1992 A.P. 130 and Mrs. Henriqueta Maria Julieta v. State of Goa and others, AIR 2008 NOC1832. 7. I have considered the submissions made by learned counsel for the parties and have perused the record. Section 12(1)(a) of the Act requires the tenant to make payment of arrears legally recovered from him within two months from the date of notice of demand of arrears of rent served on the him in the prescribed manner. Section 13(1) of the Act provides that on a suit or any other proceeding being instituted by a landlord on any of the grounds referred to in section 12 or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall within one month of the service of writ of summons or notice of appeal or of any other proceeding or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be. 8. 8. From close scrutiny of section 13(1) of the Act it is evident that said provision casts a statutory obligation on tenant to deposit the rent per month by 15th of each succeeding month, in case he wants to avail the benefit of section 12(3) of the Act which, inter alia, provides that no order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required under section 13 of the Act. It is no doubt true that a statutory provision enacted for the benefit of an individual can be waived. In Jamnalal and others v. Radheshyam, 2000(2) MPLJ (S.C.) 385 = (2000) 4 SCC 380 , the Supreme Court has held that scheme of section 13 of the Act suggests that the provisions thereof are intended for the benefit of both the tenant as well as the landlord. While section 13 affords protection to a defaulting tenant, willing to abide by the obligation to pay the rent regularly, against eviction on the ground of default in payment of rent, it also ensures payment of rent to the landlord, which he is entitled to receive for both the pre-litigation period as well as during the pendency of the litigation. Section 13(1) of the Act which casts a statutory obligation on the tenant to deposit the rent, cannot be waived in the absence of an express opinion. See: Voltas Ltd. (supra). 9. For yet another reason plea of waiver taken by the respondent cannot be accepted. The waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. [See: Para 1471 of Halsbury's Laws of England, Fourth Edition]. The waiver is voluntary relinquishment or abandonment, express or implied, of a legal right or advantage. The party alleged to have waived a right must have had both knowledge of the existing right and the intention of foregoing it. [See: Black's Law Dictionary 8th Edition]. The waiver is a question of conduct and must necessarily be determined on the facts of each case. The party alleged to have waived a right must have had both knowledge of the existing right and the intention of foregoing it. [See: Black's Law Dictionary 8th Edition]. The waiver is a question of conduct and must necessarily be determined on the facts of each case. In Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31 the Supreme Court has held that waiver is a question of fact which must be expressly pleaded and clearly proved. The waiver is an intentional relinquishment of a known right. There could be no waiver unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. 10. In the instant case, no plea of waiver has been taken in the written statement. In order to succeed on the strength of plea of waiver by mere withdrawal of amount deposited as rent by the plaintiff, the defendant was required to prove that plaintiff is withdrawing the amount which includes the amount of rent not deposited within time. In any case, in the absence of such plea in the written statement, the same cannot be gone into, at this stage. Therefore, it cannot be said that the plaintiff has waived the right by his conduct. 11. In the instant case, admittedly the plaintiff had filed the suit on the ground that defendant is in arrears of rent for the period from April-May, 1980. Notice Exhibit-P-16 was served on the defendant on 14-8-1980. Thereafter, the plaintiff filed the suit for eviction on 4-3-1985. The summons were served on the defendant on 3-4-1985. The defendant was required to pay a sum of 1912 i.e. the rent for the period April, 1980 to 3-4-1985. However, a sum of 1848.50 P only was paid. Thereafter, the plaintiff has made default in making payment of rent for the months of May and June, 1994; May, 1995 and February, 1996 in accordance with section 13(1) of the Act, as is evident from the Chart. However, the lower Appellate Court without assigning any reason has recorded a finding that defendant is making payment of rent in accordance with section 13(1) of the Act. The aforesaid finding is factually incorrect. However, the lower Appellate Court without assigning any reason has recorded a finding that defendant is making payment of rent in accordance with section 13(1) of the Act. The aforesaid finding is factually incorrect. There is no material on record to show that the defendant within two months from the date of receipt of summons has deposited the arrears of rent. He has also not complied with provisions of section 13(1) of the Act, therefore, he is not entitled to the benefit of section 12(3) of the Act. 12. For the aforementioned reasons, the substantial question of law framed by this Court is answered in the affirmative and in favour of the appellant. Accordingly, the judgment passed by the lower Appellate Court is set aside and that of the trial Court is restored. In the result the appeal is allowed with costs. Appeal allowed.