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Madhya Pradesh High Court · body

2015 DIGILAW 749 (MP)

Mohanlal v. Shankarlal

2015-07-20

PRAKASH SHRIVASTAVA

body2015
ORDER 1. Heard finally with consent. 2. This Writ Petition under Article 227 of the Constitution of India is at the instance of defendant-tenant challenging the order of the trial Court dated 26.9.2014, whereby the petitioner's defence has been struck off on the ground of non payment of rent. 3. Learned counsel appearing for the petitioner submits that the petitioner has paid the entire rent and on account of the bona fide mistake, there was some default earlier in the payment of rent. He has placed reliance upon the judgment of this Court in the matter of Shashi Prabha Jain v. Achal Pradhan, reported in 1993 MPACJ 205 and in the matter of Jaibhai v. Mainabai, reported in 1992 MPACJ 458. 4. As against this, learned counsel for the respondents has supported the impugned order. 5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the trial Court has struck off the defence on the ground that the petitioner had not deposited the rent prior to 14.8.2014 in terms of section 13(1) of the M.P. Accommodation Control Act. The trial Court while striking off the defence, has not mentioned about the date of service of summons in the suit which is the relevant date for the purpose of ascertaining the default. Counsel for the petitioner has placed reliance upon the judgment of this Court in the matter of Shashi Prabha Jain (supra), wherein it has been held that extreme steps of striking out defence against the eviction should not be taken unless it is a case of contumacy or incurable persistence in default by the tenant. This Court in the matter of Jaibhai (supra), has also held that when full amount of rent due is paid, defence should not be struck off merely because there was some irregularity in paying the rent on the due date. 6. Since the impugned order has been passed by the trial Court without considering the relevant requirement of law, therefore, it is set aside with a direction to the trial Court to reconsider the application under section 13(6) of the Act afresh, in accordance with law. 7. Writ Petition is accordingly disposed of.