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Madhya Pradesh High Court · body

2017 DIGILAW 679 (MP)

PARMANAND v. DAMINI

2017-05-16

ANAND PATHAK

body2017
ORDER : ANAND PATHAK, J. 1. With consent, heard finally. 2. The writ petition under Article 227 of the Constitution of India has been preferred by the petitioner challenging the order dated 21/02/2017 (Annexure P/2) passed by VI Civil Class-I, Gwalior whereby application preferred by respondents No. 1 to 4/plaintiffs under Section 13(6) of the M.P. Accommodation Control Act, 1961 (for short "Act of 1961") has been allowed and defence of the petitioner as defendant No. 5 has been struck off. 3. Precisely stated facts of the case are that respondents No. 1 to 4 have filed a suit for eviction and arrears of rent against present petitioner as well as respondents No. 5 to 8 on the ground under Section 12(1)(a)(b) and (f) of the Act of 1961. As per the plaint allegations, father-in-law (Late Govind Roa Mahadik) of plaintiff No. 1 has given the suit premises to father of defendant No. 1-Shirumal (who died, now represented through his Lrs./defendants No. 1 to 4) on rent. 4. On 27/10/1958, late Govind Rao Mahadik and his son late Vitthal Rao and Data Ji Rao have mortgaged the shop in question to Shirumal (father of defendant No. 1) for consideration of Rs. 600/- through a registered document. As per the terms of the document, the mortgagor; late Govind Rao Mahadik and his family members were not obliged to pay the interest and in return; Shirumal and his family members (present defendants No. 1 to 4) were not obliged to pay the rent thus, the interest amount and rent amount were equal. 5. After death of late Govind Rao Mahadik, his sons Vitthal Rao and Dutta Ji Rao tried to get back the mortgaged property and when request did not yield any result, then they preferred proceeding under section 83 of the Transfer of Property Act, 1882 before the competent Court and deposited Rs. 600/- per month on dated 03/05/1979 (the amount which was for redemption of mortgage). 6. Other side (mortgagor) did not collect the said amount, therefore, Vidhal Rao and Data Ji Rao have preferred a suit for redemption of mortgage and restoration of possession and damages etc., against son of Shirumal (Ramesh and Keshavdas). 7. 600/- per month on dated 03/05/1979 (the amount which was for redemption of mortgage). 6. Other side (mortgagor) did not collect the said amount, therefore, Vidhal Rao and Data Ji Rao have preferred a suit for redemption of mortgage and restoration of possession and damages etc., against son of Shirumal (Ramesh and Keshavdas). 7. According to plaintiffs; on 19/07/2000, a decree has been passed by III Civil Judge Class-II, Gwalior in a case vide Case No. 42-A/1992, wherein defendants No. 1 to 4 did not prefer any appeal, therefore, the said order attained finality. On limited point of payment of Rs. 600/- to the defendants, an appeal has been preferred by the plaintiffs, which got dismissed vide order dated 22/11/2003 by IV Additional District Judge, Gwalior and decree dated 19/07/2000 attained finality. 8. Further submission of the plaintiffs in the plaint was that defendants No. 1 to 4 have sub-let the premises in 1975 (on rent @ Rs. 125/- per month) to defendant No. 5 (present petitioner) without written consent of the plaintiffs and therefore, after the judgment and decree dated 19/07/2000 passed in favour of the plaintiffs, the status of defendant No. 5 is of sub-tenant, therefore, according to plaintiff, defendant No. 5 is sub-tenant. 9. The shop in question is required by the plaintiffs for bona fide requirement of plaintiff No. 4 for starting the business of cyber cafe (computer training canter). Despite demand being raised by the plaintiffs from the defendants, no rent has been paid by them yet and therefore, a suit has been filed for arrears of rent and for eviction under Section 12(1)(a)(b)(f) of the Act of 1961 against the defendants. 10. Interestingly, defendants No. 1 to 4 did not prefer to appear in the suit proceeding and therefore, proceeded ex-parte. Defendant No. 5 (present petitioner) contested suit and filed written statement in the matter and denied the plaint allegation. In sum and substance defendant No. 5 denied ownership of the shop in question of plaintiffs and submitted that redemption of mortgage has not taken place yet therefore, plaintiffs are not the owner of suit property and therefore defendant No. 5 is not sub tenant of plaintiffs. 11. In sum and substance defendant No. 5 denied ownership of the shop in question of plaintiffs and submitted that redemption of mortgage has not taken place yet therefore, plaintiffs are not the owner of suit property and therefore defendant No. 5 is not sub tenant of plaintiffs. 11. During the pendency of case, plaintiffs filed an application under Section 13(6) of the Act of 1961 to get the defence of defendant No. 5 struck off on the ground of non-payment of arrears of rent as contemplated under Section 13(1) of the Act of 1961. According to plaintiffs, defendants No. 1 to 4 have proceeded ex-parte and defendant No. 5 considered himself as tenant of defendants No. 1 to 4 therefore, he is duty bound to pay arrears of rent and if he did not prefer to pay the arrears of rent then wrath of Section 13(6) of the Act of 1961 comes into play and defence of defendant No. 5 deserves to be struck off. 12. Defendant No. 5 contested the application by filing reply and opposed the prayer made by the plaintiffs. 13. Trial Court by the impugned order dated 21/02/2017 has struck off the defence of defendant No. 5 therefore, defendant No. 5 is before this Court by filing writ petition under Article 227 of the Constitution of India. 14. According to counsel for the petitioner application under Section 13(6) of the Act of 1961 is not maintainable against sub-tenant. According to him, sub-tenant is not liable to pay the arrears of rent as contemplated under Section 13 of the Act of 1961 and therefore, the trial Court has erred in passing the impugned order whereby due to non-payment of rent to the plaintiffs, defence of petitioner as defendant No. 5 has been struck off. According to him, no privity of contract exists between the plaintiff and defendant No. 5. He relied upon the judgment passed by this Court in the matter of Saqib Khan v. Ravindra Suri, 2014 (4) MPLJ 607. 15. On the other hand, learned counsel for respondents No. 1 to 4 (plaintiffs) opposed the prayer made by the petitioner and submits that definition of the tenant under Section 2(i) of the Act of 1961 includes sub-tenant also while defining the tenant therefore, tenant includes sub-tenant also. 15. On the other hand, learned counsel for respondents No. 1 to 4 (plaintiffs) opposed the prayer made by the petitioner and submits that definition of the tenant under Section 2(i) of the Act of 1961 includes sub-tenant also while defining the tenant therefore, tenant includes sub-tenant also. Accordingly, petitioner was duty bound to pay the arrears of rent and in omission to same, trial Court rightly struck of the defence of the petitioner as defendant No. 5. He relied upon the judgments passed by this Court in the matter of Gajra Bevel Gears Ltd. (M/s.) v. Manohar and Others, 1997 (2) JLJ 127 as well as Mohammad Nasir s/o Abdul Aziz v. Smt. Rabiyabai w/o Mohammad Hanif and Another, 1998 (1) MPLJ 249 . He prayed for dismissal of the petition. 16. Heard the learned counsel for the parties at length and perused the documents appended thereto. 17. From perusal of the facts and circumstances of the case, the question involved in the case is whether in the fact situation of the case wherein tenant (defendants No. 1 to 4) as alleged by plaintiffs have been proceeded ex-parte and defendant No. 5 remained in the battle to contest the case as sub-tenant, then whether defendant No. 5 is liable to pay arrears of rent as per provisions of Section 13 of the Act of 1961 so as to avoid wrath of provisions of Section 13(6) of the Act of 1961 or not ? 18. In the present case, defendants No. 1 to 4 (who alleged to be the tenants of plaintiffs) have been proceeded ex-parte. From perusal of written statement of defendant No. 5 it appears that defendant No. 5 has taken the onus to contest the case wherein he is making an attempt to defend the case while interpreting the factual aspects which were otherwise to be incorporated by defendants No. 1 to 4 in their written statement and reply to instant application given by present petitioner (as defendant No. 5) gives inkling that petitioner is holding the suit premises as tenant of defendants No. 1 to 4. His status as tenant (of defendants No. 1 to 4) and as sub-tenant (of plaintiffs) is yet to be decided by the trial Court. 19. Section 13(1) and 13(6) of the Act of 1961 used the expression "tenant" and pass liability on the tenant. His status as tenant (of defendants No. 1 to 4) and as sub-tenant (of plaintiffs) is yet to be decided by the trial Court. 19. Section 13(1) and 13(6) of the Act of 1961 used the expression "tenant" and pass liability on the tenant. Section 2(i) of the Act of 1961 defines the word "tenant". The word tenant is defined as a person by whom rent would be payable and is stated to include "any person occupying the accommodation as subtenant". For ready reference definition of tenant is reproduced as under:- 2.(i) "tenant" means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made." 20. The Hon'ble Apex Court in the matter of Smt. Pushpa Devi and Others v. Milkhi Ram (dead) by his Lrs., AIR 1990 SC 808 while considering definition of "tenant" under East Punjab Urban Rent Restriction Act, 1949 has held that for the purpose of avoiding a decree on the ground of arrears of rent, the person claiming to be a tenant is also under obligation to deposit the rent in the Court to avoid a decree for eviction on the aforesaid ground and for this purpose, the Apex Court has held that definition of tenant should be construed liberally so as to include a person claiming to be a tenant. In the aforesaid case, the Apex Court has held as under:- "It is time for us to be explicit. Taking into account of the intention of the legislature and the purposes for which the proviso was enacted, we are of the opinion that the obligation to tender the rent under the proviso on the first hearing date does not depend upon existence of admitted jural relationship of landlord and tenant. When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. When an action for eviction is brought by the landlord on the ground of default, the proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also by those who claim to be the tenant. The view to the contrary expressed by the High Court of Punjab and Haryana in Ram Gopal and Onkar Mal cases (1963 (65) Pun LR 1112 and 1977 (1) Rent LR 195) is likely to be of greater mischief to the tenants than a protection for them and is therefore overruled" 21. The legislative protection given to the tenant cannot be narrowly construed. Once the Apex Court has stressed on the legal position that obligation to tender the rent on the first hearing of date does not depend upon existence of "Admitted Jural Relationship of landlord and tenant" then it means that even if existence of jural relationship of landlord and tenant is not admitted, even then tendering the rent by subtenant is an obligation which he has to discharge in the present fact situation of the case. As the benefit is available to the person who claims to be the tenant, liability as imposed by the Act is also unavoidable. 22. The opening sentence in the definition of Section 2 of the Act states, "in this act unless the context otherwise requires". In view of this clarification, the Court has not only to look at words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provisions was made by the legislature. The apparent purpose of Section 13 of the Act of 1961 is to give the benefit of protection to the tenant against eviction. If the benefit of protection against eviction has been given to the tenant, then impliedly it is the protection given to sub-tenant also therefore, once the benefit is enjoyed by the sub-tenant against the eviction then it is his liability to pay the rent during interregnum period, therefore, legislative protection cannot be narrowly tailored. Here, the context does not requires otherwise. It requires that tenant includes sub-tenant also with all privileges and liabilities as enjoyed and burdened by tenant. Thus for the purpose of Section 13 of the Act of 1882, tenant includes sub-tenant. Here, the context does not requires otherwise. It requires that tenant includes sub-tenant also with all privileges and liabilities as enjoyed and burdened by tenant. Thus for the purpose of Section 13 of the Act of 1882, tenant includes sub-tenant. This aspect assumes importance in the present set of facts, wherein alleged tenant (defendants No. 1 to 4) proceeded ex-parte. Plaintiffs/landlord cannot be denuded from the benefits of Section 13 of the Act of 1882, on the ground of sub tenancy. Plaintiffs/landlord deserves receipt of arrears of rent from defendant No. 5, who is allegedly sub-tenant in the present case. 23. The same spirit has been echoed by this Court in the matter of Gajra Bevel Gears (supra) and Mohammad Nasir (supra) and in both the cases, this Court while relying upon the judgment rendered by Hon'ble Apex Court in the matter of Smt. Puspa (supra) has reiterated that tenant includes sub tenant also. 24. This Court in the matter of Shaqib Khan (supra) has relied upon the judgment rendered by this Court in the case of Daryanumal v. Sohanlal, 1961 JLJ 1417 (C.N.373) and opined that for the purpose of Section 13(1) of the Act of 1961, tenant does not include sub-tenant. The judgment rendered in the matter of Daryanumal (supra) was in respect of Madhya Bharat Sthan Niyantraran Vidhan, 1955, whereas the judgments of this Court in the matter of Gajra Bevel Gears (supra) and Mohammad Nasir (supra) have been delivered while interpreting provisions of Section 13(6) of the Act of 1961. It is the governing statue for the present controversy also. The aims and objects of Madhya Bharat Sthan Niyantraran Vidhan, 1955 and M.P. Accommodation Control Act, 1961 are slightly different and said statue operated in different social and contextual milieu. 25. In view of the decision rendered by the Hon'ble Apex court in the matter of Puspa Devi (supra) case, the case of Saqib Khan (supra), as cited by the petitioner is manifestly un-helpful as a precedent. Petitioner, was, thus, liable to make deposit of arrears of rent. 26. As to the consequence of striking out the defence, the section itself envisages the loss of "defence against eviction". It is unconcerned with any other plea or defence of the defendant, unrelated to ground of eviction, and permissible in law. 27. Legal position is not in tenebrosity. Petitioner, was, thus, liable to make deposit of arrears of rent. 26. As to the consequence of striking out the defence, the section itself envisages the loss of "defence against eviction". It is unconcerned with any other plea or defence of the defendant, unrelated to ground of eviction, and permissible in law. 27. Legal position is not in tenebrosity. In AIR 1989 SC 162 , Modula India v. Kamakshya Singh Deo, it is ruled that:- "For the above reasons, we agree with the view of Ramendra Mohan Datta, ACJ, that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case would generally be entitled: (a) to cross-examine the plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. We would like to make it clear that the defendant would not 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 plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses." 28. The applicant shall, thus, remain entitled to this extent. 29. In view of the matter, the trial Court has rightly allowed the application preferred by the plaintiffs and rightly struck off the defence of the present petitioner as defendant No. 5. No procedural irregularity, impropriety and jurisdictional error has been caused by the trial Court. Resultantly, impugned dated 21/02/2017 passed by Sixth Civil Judge Class-I, Gwalior is sustained and writ petition preferred by the petitioner is hereby dismissed. As the suit is of 2013 therefore, it is expected from the trial Court that the same shall be decided in accordance with law as expeditiously as possible particularly when later part of Section 13(6) of the Act, 1961 continues the mandate that the Court shall proceed with the hearing of the suit once the defence against eviction is struck off. 30. Petition dismissed. No costs.