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2018 DIGILAW 650 (MP)

Unnati @ Archna Bhave v. Bhagchandra Jain

2018-07-24

VIVEK AGARWAL

body2018
ORDER 1. This petition under Article 227 of the Constitution of India has been filed by the plaintiff/landlord being aggrieved by the order date10.10.2013 passed in MJC No. 25A/2013 by the Court of III Civil Judge Class 2 Gwalior dismissing an application filed by the plaintiff under section 13 (6) of the M.P.Accommodation Control Act, 1961 (hereinafter shall be referred to as the Act of 1961, refusing to strike out the defence of the respondent/defendant andrefusing to pass any order for depositing of arrears of rent. 2. It is the case of the petitioner that the petitioner had filed a suit for eviction and recovery of arrears of rent, which was registered as Civil Suit No. 148A/2012. Defendnat had not appeared in the said suit and as a result ex parte judgment and decree was passed on 31.8.2012. 3. It is an admitted position that on 6.1.2013 decree holder/petitioner had obtained possession of the suit property and thereafter an application under Order 9 rule 13 of CPC was filed by the defendant/tenant for setting aside the ex parte judgment date 31.8.2012. This application was filed on 2.5.2013. 4. When such an application under Order 9 rule 13 of CPC was filed, plaintiff had filed an application under the provisions of section 13 (6) of the Act of 1961, failing which requesting the trial Court to dismiss the application under Order 9 rule 13 of CPC as not maintainable by closing the defence of the defendant/applicant. 5. In support of this contention, learned counsel for the petitioner has placed reliance on the judgment of this High Court rendered in the case of Jagdish v. Omprakash as reported in 2001 (1) MPLJ 568 wherein the ratio of the judgment is that requirement of section 13 (6) applies to appeal and also to appeal against the order rejecting application to set aside ex parte decree. It has been held that the tenant is required to deposit a monthly rent during the pendency of the appeal. Failure to comply with the requirement envisaged under section 13 (1) of the M.P.Accommodation Control Act in the event of a pending appeal filed under section 96, Civil Procedure Code entails serious consequences vesting the Court of appeal with ample jurisdiction to strike out the defence put in by the tenant against his eviction and proceed with the hearing of the appeal. It has been held that the provisions contained in section 13 (6) of the Act vests appellate Court with a discretionary jurisdiction. In case, sufficient ground has been made out for condoning any default in making the deposits as envisaged under section 13 (1) of the Act, the appellate Court could refuse to strike out the defence against eviction and proceed to hear the appeal on merits of the defence put in against eviction. 6. In view of such facts, it is argued that since provisions of section 13 (1) of the Act of 1961 are applicable to proceedings drawn under Order 9 rule 13 of CPC., therefore, any default of deposit of monthly rent during the pendency of such an application, will attract provisions of section 13 (6) of the Act of 1961 and the defence should have been struck off and the application under Order 9 rule 13 of CPC should have been dismissed. 7. Shri H.K.Shukla, learned counsel for the respondent disputes this proposition and submits that possession of the suit property has been taken away from the tenant then tenant has no liability to pay rent. It is also submitted that learned trial Court has rightly observed that as far as recovery of arrears of rent up to date of eviction is concerned, it is subject matter of execution proceedings and is not required to be decided in an application under Order 9 rule 13 of CPC. 8. Language of section 13 of the Act of 1961 is "When tenant can get benefit of protection against eviction". Thus, provisions of sub rule (1) and the subsequent provisions up to sub rule (6) will be applicable only when tenant is to take benefit of protection against eviction. 8. Language of section 13 of the Act of 1961 is "When tenant can get benefit of protection against eviction". Thus, provisions of sub rule (1) and the subsequent provisions up to sub rule (6) will be applicable only when tenant is to take benefit of protection against eviction. It is true that as per the law laid down in the case of Jagdish (supra) provisions of sections 13 (1) and 13 (6) of the Act of 1961 will be applicable to proceedings under Order 9 rule 13 of CPC but if the suit property is not in possession of the tenant and he is not seeking benefit of protection against eviction, then in the opinion of this Court, provisions of section 13 (1) of the Act of 1961 will not be attracted and consequently provisions of section 13 (6) of the Act of 1961 will not come into play and thus trial Court has rightly dismissed the application under section 13 (6) of the Act of 1961. It has been rightly observed that as far as arrears of rent till date of eviction are concerned, they are the subject matter of the execution proceeding, inasmuch as decree which has been passed in favour of the landlord/petitioner clearly provides for her entitlement to recover rent @ Rs.350/- p.m. up to the date of eviction. There is no illegality or arbitrariness in the impugned order calling for interference in the supervisory jurisdiction of this Court. Thus, petition fails and is dismissed.