Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 580 (MP)

Rasheed Khan v. Shateesh Chandra Bandel

2018-07-03

VIVEK AGARWAL

body2018
ORDER 1. Petitioner/tenant has filed this writ petition under Article 227 of the Constitution of India being aggrieved by order dated 29.10.2014 passed by the IVth Additional Judge to the Ist Civil Judge, Class II, Morena, whereby the learned Civil Judge has reviewed its own order dated 4.9.2014 whereby learned Civil Judge had decided an application under section 13(6) of the M.P. Accommodation Control Act (for brevity the Act) as was filed by the plaintiff. 2. It was submitted on behalf of the plaintiff that since the defendant has appeared through counsel on 3.4.2013, but has only deposited a sum of Rs. 6,750/- in the CCD of the Court and is not paying the monthly rent, therefore, there is violation of the provisions contained in section 13(1) of the M.P. Accommodation Control Act. Thus, right of defence of the defendant should be struck off. 3. Defendant had filed a reply and submitted that he had deposited a sum of Rs. 5,000/- in CCD on 26.8.2014 and he being a very poor person cannot arrange the remaining amount, therefore, application under section 13(6) be dismissed as the defendant is committed to deposit the remaining rent as expeditiously as possible. 4. Learned trial Court has held that since defendant had deposited a sum of Rs. 5000/- in CCD on 26.8.2014, therefore, he is making compliance of the provisions contained in section 13(1) of the Act and since compliance of section 13(1) is being made, therefore, application under section 13(6) is not maintainable. In view of such discussion, application under section 13(6) was dismissed. 5. Being aggrieved by such order, plaintiff had filed an application for review in which it was mentioned that since provisions of section 13(1) are mandatory and tenant is duty bound to deposit the amount for the period for which he is in default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and thereafter shall 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. May used in sub-section (6) of section 13 is to be read as shall and, therefore, for the default of the tenant application under section 13(6) could not have been dismissed. May used in sub-section (6) of section 13 is to be read as shall and, therefore, for the default of the tenant application under section 13(6) could not have been dismissed. Thus, it is submitted that trial Court had erred in dismissing the application under section 13(6) without appreciating the mandatory provisions. Reliance has been placed on the judgment of Supreme Court in Case of Ashok Kumar Mishra and anr. v. Govardhan Bhai (D) through LRs. and anr. as reported in AIR 2017 SC 1819 to show that Hon'ble Supreme Court has held that section 13(5) of the Accommodation Control Act provides as under : “13(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.” Sub-section 13(5) of the Act reiterates the protection by staying that if the tenant makes payment post suit in accordance with the provisions of Sub-section (1) and sub-section (2) of section 13 of the Act, he shall not be liable for eviction. This section does not confer the power on the Court to condone the defaults in payment of rent after the suit is filed and accordingly had set aside the judgment of the High Court in condoning such lapse and directed eviction of the tenant from the scheduled premises. 6. The issue, which arises in this case for consideration is that whether the trial Court while passing order dated 4.9.2014 exercised its discretion of not striking out the defence correctly and whether it was entitled to say that tenant had made compliance of section 13 when he had actually not done so. In fact a plain reading of the judgment of Supreme Court in the case of Ashok Kumar Mishra (supra) reveals that Court has no discretion to refuse passing of a decree of eviction against a tenant irrespective of the fact whether it strikes out the defence against eviction or not. In fact a plain reading of the judgment of Supreme Court in the case of Ashok Kumar Mishra (supra) reveals that Court has no discretion to refuse passing of a decree of eviction against a tenant irrespective of the fact whether it strikes out the defence against eviction or not. In fact, in the case of Basant Singh v. Roman Catholic Mission as reported in 2001(1) MPLJ 57 , this Court has held that discretion conferred under section 13(6) is to be exercised not in arbitrary manner but on sound judicial principles. Section 13(1) specifically provides that tenant has to not only deposit arrears of rent within 30 days of his appearance before the trial Court but has to undertake to pay the rent upto 15th of every month during pendency of the trial. Any default in compliance of this provision will lead to striking out of the defence. Thus, now it is settled that the Court erred in condoning the delay overlooking the principles of law laid down in section 13(1) and, therefore, it cannot be said that it has arbitrarily exercised its power of review while passing order dated 29.10.2014 and directed for striking out of the defence of the defendant under section 13(6) of the Act. There is no illegality or arbitrariness in the impugned order calling for any interference, therefore, petition fails and is dismissed.