Shiv Dayal, C.J.
1. The following question has been referred to this Bench for opinion:--
'Whether in compliance with the requirement of Sub-section (1) of Section 13, is it necessary for the defendant-tenant to pay to the landlord or deposit in Court the amount of arrears of rent, the recovery of which has become barred by limitation and which the landlord-plaintiff on his part cannot recover by process in the Court?'
2. The appellants' suit instituted in the court of the Fourth Civil Judge, Class II, Raipur, was for ejectment of the defendant-tenant and for recovery of Rs. 648 as arrears of rent and Rs. 90 as damages for use and occupation. It appears that the plaintiffs claimed in the suit arrears of rent for the period from July 1, 1962 to Aug. 31, 1969. The suit was instituted on February 10, 1970, which means that the claim included partly arrears which had become barred by time. A notice of demand of arrears of rent and to quit had been served on the defendant on July 19, 1969, in which arrears had been claimed from as back as July 1, 1959. The tenant had paid Rs. 649, which the landlord adjusted towards the arrears from July 1, 1959, to June 30, 1962, and then claimed in the suit arrears for the aforesaid period i.e., July 1, 1962 to Aug. 31, 1969.
3. After the institution of the suit, the, defendant-tenant deposited Rs. 828 and it is not in dispute that this deposit was within one month from the date ofservice of the summons of the suit on him and it is also not in dispute that thereafter he continued to deposit regularly monthly rent as required under the second part of Section 13 (1) of the M. P. Accommodation Control Act, 1961 (hereinafter called 'the Act').
4. The trial Court dismissed the suit by giving the defendant benefit of the statutory protection under Sub-section (3) of Section 12 of the Act. The plaintiffs appealed but their appeal was dismissed by the learned District Judge. The plaintiffs preferred second appeal to this Court. At the hearing before a learned single Judge it was urged that the defendant had not deposited the entire arrears of rent under Section 13 (1) of the Act It is again not in dispute that the defendant deposited all rent for which the suit, on the date of its institution had not become barred by time. The appellants' contention before the learned single Judge, so far as this aspect of the case is concerned was that in order to entitle the defendant to the protection under Section 12 (3) of the Act, it was necessary for him to deposit all arrears of rent irrespective of whether their remedy by way of a suit for the recovery of a part of it was barred by time.
On the other hand, it was contended for the defendant-respondent that his only obligation under Section 13 of the Act was to deposit such arrears of rent as were legally recoverable, but not those which were barred by limitation and, therefore, not recoverable. For the appellants reliance was placed on Abdul Gafoor v. Abde Ali, 1973 MPLJ 179. The learned single Judge was of the opinion that in view of the observations in New Delhi Municipal Committee v. Kalu Ram AIR 1976 SC 1637 the decision in Abdur Gafoor v. Abde Ali (1973 MPLJ 179) (supra), which was decided by & Division Bench, required reconsideration. That is haw the matter has come before us.
5. The contest between the parties before us is the same as was before the learned single Judge.
6. Learned Advocate-General appeared as amicus curiae.
7. Section 12 of the Act imposes restrictions on eviction of tenants. Sub-section (1) of Section 12 enumerates the grounds on one or more of which alone a suit can be filed against a tenant for his eviction from any accommodation. Clause (a) of Sub-section (1) affords a ground to thelandlord for eviction, if the tenant neither paid nor tendered the whole of the arrears of rent legally recoverable from him, within two months of the date on which a notice of demand for the arrears of rent had been served on him by the landlord in the prescribed manner. When a suit is instituted on that ground and the tenant makes a deposit or payment as required by Section 13 of the Act, Sub-section (3) of Section 12 steps in to protect the tenant so that no order for eviction of the tenant shall be made subject to the proviso (The proviso is not relevant for the present opinion).
Patently enough, the Legislature in providing a new statutory protection under Sub-section (3), intended to give the tenant a further and final protection, that is to say, even if he was a defaulter before the notice of demand and even if he did not pay the arrears of rent within two months of the service of notice of demand within the meaning of Sub-section (1) whereupon the right of eviction ripened. Sub-section (3) reads as follows:--
'(3) No order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13:
Provided that no tenant shall be entitled to the benefit under this sub-section if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months.'
In the implementation of Sub-section (3), the Court has no discretion. If the tenant has earned the protection, no decree for eviction can be passed. On the other hand, any non-compliance with the requirement of Section 13 (1) of the Act--even a single default--will not allow the tenant to acquire protection which is given to him under Section 12 (3). The question for enquiry, therefore, is whether under Section 13, the tenant is required to deposit the arrears of rent, including such arrears as were barred by time on the date of the suit.
8. Sub-section (1) of Section 13 of the Act enacts the obligation of the tenant to deposit arrears of rent and current rent during the pendency of the suit. It is in two parts, into which we are breaking the sub-section, while reproducing it as under:--
'13. When tenant can get benefit of protection against eviction.--(1) On a suitor proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made;
and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.' Since we will be referring to the other sub-sections in the course of discussion, it will be useful to reproduce them just now:--
'(2) If in any suit or proceeding referred to in Sub-section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of Sub-section (1) till the decision of the suit or appeal.
(3) If, in any proceeding referred to in Sub-section (1) there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2) and in such a case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.
(4) If the Court is satisfied that any dispute referred to in Sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.
(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.
(6) If a tenant fails to deposit or pay any amount as required by this section,the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit.'
9. Under the first part of Sub-section (1) of Section 13 of the Act, the period for which the tenant has to deposit the arrears of rent is 'the period for which the tenant may have made default'. It is really this phrase which has to be interpreted. The question is whether this period includes the period the remedy for the recovery of rent for which had become barred on the date of the suit. The word 'default' necessarily refers to the default described in Clause (a) of Section 12 (1). It reads thus:--
'12. Restriction on eviction of tenants.
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner.''
In this sub-section, the expression 'arrears of rent legally recoverable from him' is significant. It excludes the arrears which had become barred by time, so that if the tenant, on receipt of the notice of demand, had paid the arrears of rent, which were within limitation, this ground for eviction would not be available to the landlord. This sub-section does not require the tenant to pay or tender any arrears of rent, the remedy for the recovery of which was barred. The tenant's liability disappears, if he pays the whole of the arrears of rent legally recoverable from him, within two months of the service of notice. It is in that context that Section 13 (1) requires the tenant to pay arrears of rent for the period of the default, because this section is enacted to afford a further opportunity to the tenant to pay arrears of rent, although he committed default, when the notice of demand was served on him. Such payment or deposit, coupled with the compliance with the second part of the section, i.e., 'continues to make payment of current rent regularly, without default' would eventually earn him the protection under Sub-section (5) of Section 13, which, in its impact, is the same as Section 12 (3). See Chitrakumar Tiwari v. Gangaram, 1966 Jab LJ 1028 (para 28).
Thus the 'default' in Section 13 (1) is referable to the default described in Section 12 (1) (a). In other words, if there was no default under Section 12 (1) (a), which would afford a ground to the landlord to sue for eviction, then there is no requirement under the first part of Section 13 (1) to deposit or pay. The expression 'for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made' refers to two periods; (i) The period for which the tenant may have made default; and (ii) period subsequent thereto. Now, the word 'thereto' necessarily refers to the first period and the first period necessarily refers to the period of default within the meaning of Section 12 (1) (a). Then alone the expression 'period subsequent thereto' will have a meaning.
10. Let it be seen at once that Section 13 applies not only to a suit for eviction based on the ground contained in Clause (a) of Section 12 (1), but it equally applies to a suit which may be instituted on any other ground referred to in Section 12. The opening words of Section 13 are:
'On a suit...... being instituted by thelandlord on any of the grounds referred to in Section 12, the tenant shall.....'
Let Sub-section (6) be at once adverted to. It provides that if the tenant does not deposit or pay any rent as required by the section, the Court may order the defence against eviction to be struck out. If we accept the interpretation as suggested by the appellant, nothing will be easier than to recover time barred arrears of rent by just instituting a suit on any supposed or false ground under Section 12. For example, your tenant is in arrears of rent for 10 years. You know you cannot recover the arrears for more than 3 years. Now, you have just to institute a suit against him, say on the pretended ground of requirement for building under Clause (h), or for repairs under Clause (g), or for residence under Clause (e), or for carrying on business under Clause (f), although no such ground is in truth available, nor do you really mean eviction on that ground.
However, what you will achieve is that the tenant under the compulsion under Section 13 (1) (according to the interpretation pleaded by the appellant) willdeposit the entire arrears, including the time-barred 7 years' arrears, or will incur the liability of his defence being struck out under Sub-section (6). The latter he cannot afford, otherwise, there will be every probability of a decree for eviction being passed against him. And, as soon as all the arrears are deposited and you withdraw them, you suffer the suit to be dismissed. You may merely have to pay the costs of the suit, but your time-barred rent is recovered. This illustration would demonstrate that Section 13 (1) would then become a machinery or a handle, for recovering time-barred arrears of rent, or, in the words of their Lordships (in Delhi Municipality's case) would become a source or foundation of a right to claim arrears otherwise time-barred. It is not possible to accept such a position.
11. To the expression, 'period for which the tenant may have made default' in Section 13 (1), only one meaning can be assigned. If in a suit for eviction founded on any ground other than that in Section 12 (1) (a), it cannot be argued that the tenant will be required to deposit time-barred rent, a different meaning cannot be given to that phrase, when the suit is instituted on the ground oi default within the meaning of Section 12 (1) (a).
12. It is strenuously urged for the landlord that Section 13 (5) or Section 12 (3) of the Act affords a 'second concession' to the tenant. Therefore, the Legislature intended that if he wanted to avail himself of it, he had to pay the entire rent, including the time-barred rent. It must be remembered that Section 13 does not constitute a new source or foundation of a right to claim rent otherwise time-barred. In the present socio-economic set up, the Accommodation Control Act cannot be interpreted to be a handle to recover time-barred rent, which otherwise, the landlord could not have done. New Delhi Municipal Committee v. Kalu Ram (AIR 1976 SC 1637) (supra).
13. The view that we take is fortified when we refer to Sub-section (2) of Section 13. Under that section, when there is a dispute as to the amount of rent payable by the tenant, the Court is enjoined to fix a reasonable provisional rent to be deposited by the tenant. Now what is the 'dispute' as contemplated in Sub-section (2)? If a claim in the suit includes time-barred arrears, that claim will at once be rejected under Order 7, Rule 11, Civil P. C. What will then remain would be arrears 'legally recoverable'. Thus the dispute will be confined to the rent legally recoverable, for which the word used in Sub-section (2) is 'payable'. To put it differently, when a dispute is raised as to the amount of rent payable, it is relatable only to those arrears which are legally recoverable and are not time-barred. In New Delhi Municipal Committee v. Kalu Ram (AIR 1976 SC 1637) (supra) their Lordships had to consider the expression 'arrears of rent payable' as employed in Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, which runs thus:--
'7. Power to recover rent or damages in respect of public premises as arrears of land revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order......'
It was held:--
'The word 'payable' is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.'
In Hansraj v. Dehra Dun-Mussorie Electric Tramway Co. Ltd., 60 Ind App 13 : (AIR 1933 PC 63) to which their Lordships referred, it was observed:--
'It is the section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights.'
The Supreme Court then held:--
'We are clear that the word 'payment' in Section 7 in the context in which it occurs, means 'legally recoverable'.'
14. There can be no doubt that if there is any dispute as to the amount of rent payable by the tenant under Sub-section (2) of Section 13, the Court shall not, while fixing reasonable provisional rent to bedeposited, include the arrears of tent time-barred. It will then be anomalous that if the tenant takes recourse to Sub-section (2) of Section 13, he has not to pay time-barred rent also, and by paying arrears of rent legally recoverable, it would be compliance with Section 13 (I), but if he does not take recourse to Sub-section (2) and wants to deposit rent directly under Sub-section (1), then he must also deposit time-barred arrears of rent; otherwise, it would not be full compliance with the requirements of Sub-section (1). Such a position can never be accepted.
15. It appears to us that in Abdul Gafoor v. Abdeali, 1973 MPLJ 179 (supra), the Division Bench concentrated its attention to a case of a defaulter and was then influenced by the considerations, such as, the moral obligation of the tenant to, pay, when he was in occupation of the accommodation also during the period for which the rent became barred by time and also by Section 114 of the T. P. Act, If the illustrations for eviction on grounds other than that contained in Clause (a) of Section 12 (1) are taken into consideration, a flood of light is thrown on the expression 'period for which the tenant may have made default'. The Division Bench relied on Rullia Ram v. Fateh Singh, AIR 1962 Punj 256 (FB). It can be seen from the discussion contained in paragraphs 5 and 6 of that decision that the learned Judges of Punjab High Court were influenced by the expression 'rent due by him' when neither the words legally due' nor the word 'recoverable' were used. It was observed in that decision:--
'In order to accept the contention of the laarned counsel for the petitioner, namely, that only that rent is due or is in arrears which is legally recoverable, one has to read something extra in this legislative provision.'
These observations now do not hold good in view of their Lordships' decision in New Delhi Municipal Committee v. Kalu Ram, AIR 1976 SC 1637 (supra).
16. In Abdul Gafoor v. Abdeali, 1973 MPLJ 179 (supra) although Calcutta decisions were cited, which support the view we are taking, the Division Bench preferred to follow the Punjab case. In Nashiban Bibi v. Parul Bala Dutt, ILR (1959) 2 Cal 490 the provisions of the West Bengal Premises Tenancy Act, 1956, were under consideration. Section 17 (1) of that Act employs the same words as Section 13 (1) of the M. P. Accommodation Control Act. The words of Section 17 (1) are:
'The tenant shall within one month of the service of the writ of summons on him deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made a default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made.'
The earlier decisions of the Calcutta High Court are T.S.R. Sarma v. Nagen-dra Bala Debi, AIR 1952 Cal 879 (FB) and Krishna Chandra v. Radharani, AIR 1954 Cal 102.
17. It may be mentioned that the long phrase 'amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default' appears to have been studiously used for 'arrears' of rent in the strict sense; as they are sometimes distinguished from 'damages for use and occupation.'
18. The learned Advocate General supported the view that we have now taken.
19. As a result of this discussion, we answer the question referred to us in the negative. The tenant is not obliged to deposit time-barred rent under the first part of Section 13 (1) of the M. P. Accommodation Control Act, 1961.
20. It must be said with respect that Abdul Gafoor v. Abdeali 1973 MPLJ 179 (supra) did not lay down the correct law.
21. We desire to record our thanks to the learned Advocate General for his valuable assistance.
22. The appeal shall now be placed before a Single Bench.