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Bachchoobhai Vs. Premanand Bhiogadhe - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 993 of 1974
Judge
Reported inAIR1976MP8
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(3), 13(1), 13(5) and 13(6)
AppellantBachchoobhai
RespondentPremanand Bhiogadhe
Appellant AdvocateRavindra Kumar Verma, Adv.
Respondent AdvocateP.G. Pathak, Adv.
DispositionRevision allowed
Cases ReferredB. C. Kame v. Nemichand
Excerpt:
- .....defendant did not comply with the second part of section 13 (1), as he did not regularly deposit, month by month, the rent due for the preceding month. accordingly, the first contention of shri verma is rejected,8. but the learned trial judge has been in error in striking out the defence merely on the ground that the provisions of section 13(1) were not complied with by the defendant. striking out the defence is not a necessary consequence of non-compliance with the provisions of section 13 (1), either part. the learned trial judge has confused between the consequence of non-compliance, with section 13(1), so far us it rerates to the benefit which has been provided by the statute under section 12 (3) and section 13 (5), and the penalty with which the defendant may be visited as a.....
Judgment:
ORDER

Shiv Dayal, J.

1. Premanand (respondent) has instituted a suit against Bachchoobhai (revision-petitioner) for eviction under Section 12 of the M. P. Accommodation Control Act, 1961, (hereinafter called 'the Act'). Under Section 13 (1) of the Act, the tenant was required to deposit rent on the dates specified therein. He did not deposit rent within one month of the service of the writ of summons on him as required by the first part of Section 13 (1), Further, he did not regularly comply with the second part of Section 13 (J), He did not apply for extension of time. He did not raise any dispute within the meaning of Section 13 (2) within that one month. He was served with the writ of summons on July, 1, 1973. 11 was only in the written statement, which he filed on January 7, 1974, that he raised a dispute about the amount, of arrears of rent due by him.

2. According to the plaintiff, the following sums were due by the defendant:--

Rs. 1626/- as rent from 12-9-67 to11-3-72 at Rs. 37 per month.

Rs. 550/ as damages from 12-3-72 to the date of the suit at Rs. 50/- per month.

In the written statement, the following payments were alleged: --

28-7-1971 Rent from June to November1970. Rs. 222A; .10-1.0-1971 Rent for December 1970 and January 71 Rs. 74/- by M. O.

18-11-1971 Rent for February and March1971. Rs. 74/- by M. O.

17-1-72 Rent for April and May 1971 Rs. 74 by M. O.

It is further alleged in the written statement that on February 16, 1972, the defendantremitted Rs. 74/- by money order as rent for June and July 1971, but the plaintiff refused to accept it.

3. Then, during the pendency of the suit, it was on March 2, 1974. that the tenant deposited Rs. 898/- calculated as follows;--

Rs. 1184/- as rent from June 1971 to February 1974, less Rs. 286/- incurred or, repairs.

4. The plaintiff made an application under Section 13 (6) of the Act for striking out the defence contending that the defendant did not comply with the provisions of Section 13 (1) of the Act. The trial court found that the deposit of Rs. 898/- abovesaid was not in full, nor was it made within the time prescribed in the section. It also observed that no application was made for extension of time. In the result, the trial Court ordered the defence to be struck out.

5. Shri Verma, learned counsel for the defendant-petitioner, contends in this revision that, firstly, as there was a dispute raised about the amount of arrears of rent due by the tenant, the Court was bound to fix a provisional rent within the meaning of Section 13 (2). Learned counsel relies on Firm Ganeshram Harvilas v. Ramchandra 1970 MPLJ 902 = (AIR 1971 Madh Pra 104) and Jivrambhai v. Amarsingh 1972 MPLJ 785 = (AIR 1973 Madh Pra 165). The second contention is that as there was no positive mala fide or contumacy on the part of the defendant, the defence could not be struck out and the trial Court has not at all exercised its discretion.

6. Shri Pathak, learned counsel for the plaintiff, in opposing this revision, argues that the dispute about me amount of arrears of rent was not raised within one month of the service of the writ of summons on the defendant so that the application of the provisions of the first part of Section 13 (1) was not arrested. Secondly, the defendant did not pay rent even at Rupees 37/- per month which was not in dispute, during the pendency of the suit, as required by the second part of Section IS (1).

7. In my opinion, Shri Pathak is right; the first contention of Shri Verma cannot be accepted, It is true that the defendant raised a dispute about the amount of arrears of rent due by him, but this dispute he did not raise within one month of the service of the writ of summons on him. He raised the dispute as late as on January 7, 1974 while the writ of summons had been served on him on July 1, 1973. He did not comply with the first part of Section 13 (1) upto the date of raising the, dispute. He did not apply for extension of time. Shri Pathak is also right that the defendant did not comply with the second part of Section 13 (1), as he did not regularly deposit, month by month, the rent due for the preceding month. Accordingly, the first contention of Shri Verma is rejected,

8. But the learned trial Judge has been in error in striking out the defence merely on the ground that the provisions of Section 13(1) were not complied with by the defendant. Striking out the defence is not a necessary consequence of non-compliance with the provisions of Section 13 (1), either part. The learned trial Judge has confused between the consequence of non-compliance, with Section 13(1), so far us it rerates to the benefit which has been provided by the statute under Section 12 (3) and Section 13 (5), and the penalty with which the defendant may be visited as a consequence of such default. The two are separate and distinct. The first is a necessary consequence, the second is not.

9. The legal position may be recapitulated and summed up as follows :---

(1) There are two parts in Section 13(1) each of which is mandatory and each of which is to be complied with by the tenant nn the dates specified in it.

(2) The following will be compliance with the first part of Section 13 (1) : --

(a) The tenant deposits all arrears of rent within one month of the service of the writ of summons on him; or

(b) The tenant deposits all arrears of rent within such time as the Court may extend. This can be done only on an application by the tenant, but not suo motu. Such an application can be made at any time but to allow or not to allow it will be in the discretion of the Court to which it is made. However, it cannot be rejected merely on the ground that if was not made within one month of the service of the writ of summons on the defendant; or

(e) The tenant raises a dispute within the meaning of Section 13 (2) of the Act within one month of the service of the writ of summons on him and then deposits the provisional rent, as fixed by the Court, without any delay.

(3) It will be compliance with the second part of Section 13 (1) in the: following cases.--The Court has no power to extend time for compliance with this part of Section 13 ( the obvious reason being that unlike the first part of Section 13 (1), the tenant, under the second part, has not to deposit any accumulated arrears of rent. That is the reason for the distinction.

(a) The tenant goes on depositing month by month by the 15th day of every calendar month, until the disposal of the suit, rent for the preceding month, or

(b) The tenant raises a dispute within the meaning of Section 13 (2) of the Act, after the expiry of one month of the service of the writ of summons on him, but complies with both the parts of Section 13 (1) up-to the date of raising such dispute and pays rent thereafter according to the provisional rent fixed by the Court under Section 13 (2).

(4) The effect of compliance with both the parts of Section 13 (1), as above, will be that the defendant will earn a special protection afforded to him under Section 12 (3) and Section 18 (5) of the. Act.

(5) The consequences of non-compliance with either the first part or the second part of Section 13 (1) are two:--

(a) The defendant automatically forfeits the protection under Section 12 (3) and Section 13 (5), even when there is a single default. The Court has no power to condone any delay or default for the purposes of Section 12 (3) or Section 13 (5),

(b) His defence is liable to be struck out under Section 13 (6). But it is not automatic. The provisions are not mandatory. The Court has been given a wide discretion to strike out the defence or not to strike it out, in case where here is one default or more than one default, or any amount of delay in depositing the amounts due under the first part and the second part of Section 13 (1). If at the time that the Court is disposing of the application under Section 13 (6), rent has been deposited, or the tenant seeks a reasonable time to deposit all amount of rent due under both the parts of Section 13 (1), the Court shall not strike out the defence, except when there is:--

(i) contumacy, or

(ii) positive mala fide.

(6) The Court must always bear in mind the above distinction between the consequences of delay or default in complying with the provisions of Section 13(1) for the purposes of Section 12 (3), or Section 13 (5), on the one hand, and Section 13 (6) on the other hand. The reason for the stringency and rigidity of the consequences of non-compliance with Section 13 (1) for the purposes of Section 12 (3) and the reason for the leniency and latitude for bestowing wide discretion on the Court in case of delay or default in compliance with the provisions of Section 13 (1) for the purposes of Section 13 (6), are very clear.

(i) Section 12 (3) and Section 13 (5) afford a special protection to the tenant against eviction even when the landlord has earned the right of eviction under Section 12 (1) (a). The landlord is deprived of that valuable right, if the tenant strictly complies with both the parts of Section 13 (1) throughout the trial and punctually; otherwise, the tenant loses that protection.

(ii) The other object of Section 13 (1) is that the amount of rent is deposited for the benefit of the landlord and the tenant is prevented from litigating without depositing rent. This significant purpcse of Section 13 (1) is served when the tenant deposits all arrears of rent whether on the date specified in Section 13 (1) or later on. This provision is in terrorem. It is not as if any special or additional right is conferred on the landlord by the default: committed by the tenant. It is a penalty incurred by the tenant. To strike out the defence is an extreme penalty with which the defendant can be Visited, so that it has been held by the Court that that extreme step must not be taken by the Court. However, that extreme step may be taken in the case of contumacy or positive mala fide.

7. As soon as a dispute is raised under Section 13 (2) the operation of Section 13 (1) gets arrested; however, the lost right is not revived. As soon as the provisional rent is determined under Section 13 (2), the operation of Section 13 (1) is resumed. The provisions of Section 13 (2) are mandatory and the Court has to deal with the dispute whenever it is raised. If it is raised after one month of the service of the writ of summons on the defendant and without complying with the provisions of both the parts of Section 13 (1) upto the date of raising the dispute then also the Court has to determine a provisional rent, although the protection under Section 12 (3) and Section 13 (5) may have been lost by the tenant.

8. The same is the effect and consequence where a dispute is raised under Section .13 (3) mutatis mutandis.

9. The above propositions are deducible from Chitrakumar Tiwari v. Gangaram 1966 JLJ 1028; Jagdish Kapoor v. New Education Society, 1967 Jab LJ 859 = (AIR 1968 Madh Pra (1) (FB); 1970 MPLJ 902 = (AIR 1971 MP 104) and 1972 MPLJ 785 = (AIR 1973 Madh Pra 165).

10. In the decision of the Supreme Court in B. C. Kame v. Nemichand ATR 1970 SC 981 their Lordships considered the effect of Section 13 (5), when rent is not deposited as required by Section 1.3 (1) and there is no application for extension of time. In that case, their Lordships have not stated that the default under Section 13 (1) will necessarily entail striking out the defence under Section 13 (6). In fact, in paragraph 7 of the Supreme Court decision, there is an indication of the distinction between striking out the defence and the effect of non-compliance with Section 13 (1) for the purposes of Section 13 (5) of the Act.

11. In the present case, the learned trial judge did not bear in mind the said distinction and thought that the default under Section 1.3 (1.) necessarily entails the penalty provided in Section 13 (6). He, therefore, did not apply his mind at all to the facts and circumstances of the case in order to apply the tests when the defence should be struck out.

12. In the result, this revision is allowed. The order of the trial Court dated July 5, 1974, is set aside. The trial Court is directed to consider afresh the plaintiff's application under Section 13 (6) of the Act in the light of this order and in view of the facts and circumstances of the case. Parties shall bear their own costs.


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