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Madhya Pradesh High Court · body

2014 DIGILAW 568 (MP)

Kailash Chand v. Sonu

2014-05-08

SUJOY PAUL

body2014
ORDER 1. In this petition filed under Article 227 of the Constitution, this Court is concerned with the validity of order dated 27.8.2013 whereby the application of the petitioner/plaintiff under section 13(2) of M.P. Accommodation Control Act, 1961 ( for brevity “the Act”) is rejected. 2. A suit for eviction and recovery of rent was filed by the petitioner/plaintiff. During the pendency of suit, petitioner preferred the said application under section 13(2) of the Act (Annexure P-4). This application was preferred on 10.7.2013. The respondent/defendant filed his reply Annexure P-5 on 24.7.2013. The Court below rejected the said application on the ground that application is preferred at the stage of evidence. The issue No.1 is framed regarding rate of rent. The Court below treated it to be an application related with the rate of rent and therefore, opined that this aspect cannot be decided at the stage of filing application under section 13(2) of the Act and it will be decided after recording evidence of the parties. 3. Shri S.N.Seth, Advocate for the petitioner, criticize the order and submits that the Court below has erred in holding that the application only relates with rate of rent, whereas it involves amount of rent as well. Thus, Court below has erred in not exercising the power under section 13(2) of the Act. He relied on Full Bench judgment of this Court, reported in 1975 MPLJ 657 , (Chhoglal Jankilal v. Idol of Bhagwan Shri Satyanarayan Through Pujari Kamaldas Guru, Narayandas Bairagi). 4. Per Contra, Shri J.P. Mishra, Advocate for the respondents submits that there is no illegality in the order which warrants interference in Article 227 proceedings. 5. I have heard learned counsel for the parties and perused the record. 6. The application under section 13(2) of the Act shows that the plaintiff has stated that the rent is due from 1.10.2004. However since there is limitation of three years, the plaintiff is claiming amount of rent/arrears from 1.10.2009 to 30.9.2012. In addition, plaintiff stated that rate of rent is Rs.500/- per month, whereas respondent defendant in his reply (Annexure P-5) contended that there is no arrears/amount of rent due and monthly rent/rate of rent is Rs.45/- per month. However since there is limitation of three years, the plaintiff is claiming amount of rent/arrears from 1.10.2009 to 30.9.2012. In addition, plaintiff stated that rate of rent is Rs.500/- per month, whereas respondent defendant in his reply (Annexure P-5) contended that there is no arrears/amount of rent due and monthly rent/rate of rent is Rs.45/- per month. In the opinion of this Court, the averments of Annexures P-4 and P-5 make it crystal clear that the dispute between the parties was for amount of rent as well as on rate of rent. The Court below has clearly erred in treating it to be a dispute only on rate of rent. 7. The question involved in this case is no more res integra. The apex Court has drawn curtains on this aspect in (2000)4 SCC 380 (Jamnalal and others v. Radheshyam). Full Bench judgment cited by Shri Seth and other judgments of this Court were considered by the Supreme Court. These judgments are as follows : (1) 1977 JLJ 817 =1977 MPLJ 822 (Anandilal v. Shiv Dayal Pandey); (2) 1977 JLJ 248 =1977 MPLJ 446 (Dewabai case); (3) 1977 JLJ 779= 1975 MPLJ 657 (Chhoglal Jankilal v. Idol of Bhagwan Shri Satyanarayan) (4) 1972 JLJ 763 = 1972 MPLJ 785 ( Jivrambhai v. Amarsingh) (5) 1970 JLJ 782 = 1970 MPLJ 902 (Ganeshram Harvilas v. Ramchandra Rao) (6) Second Appeal No.179 of 1970, decided on 5.8.1976 at Gwalior (MP) Jamnalal case. 8. In view of Jamnalal (supra), it is clear that sub-section (2) of section 13 of the Act deals with situation when there is dispute as to the amount of rent payable by the tenant and directs fixation of a reasonable provisional rent in relation to the accommodation, which will be a summary inquiry, by the Court. The dispute may arise in any of the following circumstances : (i) rate of rent and the quantum of arrears of the rent are in dispute though not the period for which arrears of rent are due; (ii) rate of rent and the quantum of arrears of rent are in dispute and also the period for which it is due; (iii) rate of rent is admitted but the quantum of arrears of rent or/and the period for which it is due are disputed. 9. 9. In para 15 of Jamnalal (supra), the apex Court opined that where the rate of rent and the quantum of arrears of rent are disputed the whole of section 13(1) becomes inoperative till provisional fixation of monthly rent by the Court under sub-section (2) of section 13, which will govern compliance of section 13(1) of the Act. In light of Jamnalal, it is clear that Court below has erred in not exercising its power under section 13(2) of the Act. The finding in the impugned order is also perverse in as much as the Court below has treated the application under section 13(2) only for “rate of rent”, whereas it involves the amount of rent as well. In view of procedural impropriety and perversity occured in the order impugned, interference is warranted. 10. Resultantly, the order dated 27.8.2013 is set aside. The Court below is directed to rehear the parties on application under section 13(2) of the Act and do the needful. It is made clear that this Court has not expressed any opinion on the merits of the case. 11. Petition is allowed to the extent indicated above. No costs. ..............