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Madhya Pradesh High Court · body

2013 DIGILAW 682 (MP)

Gurupal Singh v. Govardhan Das Agrawal

2013-06-19

Sheel Nagu

body2013
JUDGMENT 1. Arguments of the rival parties are heard on the question of admission. 2. The present second appeal assails the judgment and decree passed by the first appellate Court by which the judgment and decree of the trial Court dated 26.7.2010 passed in Civil Suit No.1A/2010 has been upturned to the extent it declined grant of decree for eviction and the first appellate Court has directed the tenants/appellants to handover vacant possession of the suit property to the landlord within a period of two months. 3. Trial Court while pronouncing the judgment dated 26.7.2010 allowed the suit of the respondent/landlord to the extent it pertained to arrears of rent and declined grant of decree of eviction by holding that since the tenants have deposited the arrears of rent in the Court, no decree for eviction can be passed. 4. On the other hand, the first appellate Court while allowing the appeal of the respondent/landlord held that since the appellants/tenants had failed to deposit the rent within the prescribed time and also failed to file any application for condonation of delay caused in depositing the balance arrears of rent, the tenants cannot seek protection against the decree of eviction otherwise available under the provisions of section 13(1) of the M.P. Accommodation Control Act, 1961 (“Act of 1961” for brevity). 5. The first appellate Court observed that suit in question was filed on 23.11.2005 and the appellants/tenants was required to deposit the arrears of rent of last 36 months after being served with the notice issued by the respondent/landlord, but the appellants/tenants failed to do so. The first appellate Court further observed that on appearing before the Court for the first time, the appellants/tenants deposited the rent due till 29.7.2007; whereas the arrears of rent due till 23.9.2007 were of 58 months as against which only 37 months of arrears of rent were deposited by the appellants/tenants in the Court. Thereafter the first appellate Court finds that the appellants/tenants once again deposited rent for the period till 15.1.2008 pertaining to 24 months. The first appeal was filed on 6.9.2010 and till then the appellants/tenants had deposited rent of two months on 18.11.2010; whereas the arrears of rent due till 18.11.2010 pertained to the period of 6 months. Further, on 9.12.2012, the arrears of rent pertaining to another period of three months was deposited. The first appeal was filed on 6.9.2010 and till then the appellants/tenants had deposited rent of two months on 18.11.2010; whereas the arrears of rent due till 18.11.2010 pertained to the period of 6 months. Further, on 9.12.2012, the arrears of rent pertaining to another period of three months was deposited. In view of this factual matrix, the first appellate Court came to the factual finding that the arrears of rent were not deposited timely and on a regular basis and also that the appellants/tenants failed to file any application for condonation of delay in tendering the arrears of rent. 6. The question of validity of the notice for eviction (Ex.P/9) not having been effectively served upon the appellants/tenants has also been rightly dealt with by the first appellate Court in para 16 of its impugned judgment. 7. Counsel for appellants/tenants has urged that once the entire arrears of rent were deposited, though late, no cause was available to the respondent/landlord and, therefore the decree of eviction passed by the first appellate Court was untenable in law. Learned counsel for appellants/tenants further contends that an advance of Rs.21,000/- was paid by the appellants/tenants to the respondent/landlord which could very well have been utilized to adjust the arrears of rent. 8. Per contra, learned counsel for respondent/landlord contends that the advance amount of Rs.21,000/- was, in fact, security qua tenancy as averred in para 15 of the written statement of Smt. Savitri Devi. 9. Learned counsel for respondent/tenant has placed reliance on the decision of the Single Bench of this Court rendered in the case of Bhupendra Singh v. Shyam Babu Agarwal : 2013 (2) MPHT 230 (Paras 6 and 13). 10. The judgment and decree passed by the first appellate Court is based on proper appreciation of facts that the arrears of rent were not deposited within the prescribed period of time thereby giving cause of action to the respondent/landlord to seek eviction in terms of section 12(1)(a) of the Act of 1961. The said finding has rightly been arrived at by the first appellate Court. 11. The said finding has rightly been arrived at by the first appellate Court. 11. It is further pertinent to point out that failure on the part of the appellants/tenants to deposit arrears of rent in terms of section 13(1) of the Act of 1961 has rightly motivated the first appellate Court to reject the plea of protection otherwise available to the appellants/tenants under the provisions of section 13 (5) of the Act of 1961. 12. A bare reading of section 13(1) of the Act of 1961 elicits that depositing of entire arrears of rent within a month of the service of writ of summons or notice of appeal or within one month of institution of appeal, is a condition precedent for the appellants/tenants to invoke the statutory protection available under section 13 (5) of the Act of 1961 to avoid passing of decree of eviction on the ground of non-payment of arrears of rent. 13. In the instant case, the first appellate Court has rightly held that the arrears of rent has not been deposited in terms of mandatory provisions of section 13 (1) of the Act of 1961 and, therefore it has rightly upturned the findings of the trial Court by passing the decree for eviction. 14. The Learned counsel for the appellants has placed reliance on the decision of the apex Court in the case of G. Reghunathan v. K.V. Varghese : (2005) 7 SSC 317 to contend that the apex Court has held that once it is found that the quantum of arrears of rent is not more than the security amount deposited by the tenant in favour of the landlord then it cannot be held that the tenant is defaulter in payment of rent for the purpose of grant of decree of eviction on the ground of arrears of rent. 15. In the above said decision in the case of G. Reghunathan (Supra), especially in para 15 apex Court has rendered a finding that the apex Court for the purpose of deciding the factual matrix before it in the said case took the view that grant of eviction for non-payment of arrears of rent cannot be successfully raised if the quantum of arrears of rent, which are not in excess of the advance amount deposited by the tenant. The apex Court did not lay down any law in that regard as is evident from reading of para 15, extract of which is reproduced below : “For the purpose of this case, especially when the tenant had pleaded that he had deposited the rent even while filing his objection in the Rent Control Court, we do not think that it is necessary to pronounce finally on this question. We feel that is only necessary to clarify that the tenant will have two months from today to deposit the rent in arrears till date and the other sums in terms of Section 11(2)(c) of the Act so as to avert the execution of the order for eviction on the ground of arrears of rent granted under Section 11(2) of the Act. 16. From the above, it is evident that no law was laid down in regard to the above said proposition as the apex Court did not deem it necessary to pronounce final verdict on the points. Thus the said decision of G. Reghunathan (Supra) cannot be cited in support of the contention that the security amount deposited with the landlord herein had to have adjusted against the arrears of rent. 17. From the above, it is evident that the judgment and decree passed by the first appellate Court is in line with law and judicial precedents on the subject. 18. Neither any case for framing of the proposed substantial question of law nor any new one arises in this case and, therefore the present second appeal deserves to be and is, therefore rejected at the threshold. 19. Consequently, the present second appeal is dismissed without any orders as to costs.