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Smt. Rampiyari Vs. Shri Ramautar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 223 of 1966
Judge
Reported inAIR1968MP87
ActsMadhya Pradesh Accomodation Control Act, 1961 - Sections 12(1), 12(3), 13, 13(1), 13(2) and 13(5); Code of Civil Procedure (CPC) , 1908
AppellantSmt. Rampiyari
RespondentShri Ramautar
Appellant AdvocateB.P. Pandey, Adv.
Respondent AdvocateA.H. Saifi, Adv.
DispositionAppeal dismissed
Cases ReferredRam Prasad v. Sunderlal
Excerpt:
.....as a fact by the learned additional district judge that the appellant, after making the initial deposit required of her under section 13 (1) within the extended time, failed to deposit rent for each month during the pendency of the suit which she was required to deposit within the prescribed date as laid down in the latter part of section 13 (1) of the act. on account of the appellant's failure to deposit rent each month before the due date, during the pendency of the suit, it cannot be held that she fully complied with section 13 (1) so as to avoid a decree of ejectment on the ground of default in the payment on rent. ' 10. here, as has been stated earlier, the appellant-tenant failed to comply with section 13 (1) of the act by her failure to deposit or pay rent before the due date..........(1) of the act. she made an application on 28th august 1964 for extension of time for making the deposit required of her under section 13 (1) of the act. this application was allowed and she made the deposit within the extended time, that is on 22nd september 1964. thereafter, according to the date of the commencement of the tenancy and the provisions of section 13 (1), the appellant was required to deposit, during the pendency of the suit, the rent for each month by the 27th day of the succeeding month. she did not do so. it was found by the learned additional district judge that the appellant deposited rs. 10 on 1st december 1964, rs. 5 on 1st february 1965, rs. 15 on 7th april 1965, rs. 10 on 23rd april 1965, and rs. 10 on 15th june 1965; and that in view of this default on the part.....
Judgment:

Dixit, C.J.

1. This appeal has come up before us for disposal on a reference made by one of us. It arises out of a suit filed by the respondent Ramautar for the eviction of the appellant from a house situated in Katni.

2. The eviction of the appellant was sought on the ground that the accommodation was required bona fide by the respondent-landlord for carrying out repairs which could not be carried out without the accommodation being vacated, and also on the ground that the appellant had neither paid nor tendered the whole of the arrears of rent due from her within two months of the date of service of a notice in that behalf. The learned Civil Judge, Second Class, Murwara, who tried the suit, found that the plaintiff had failed to make out the ground of bona fide requirement for repairs. He also found that the appellant had not paid or tendered the arrears of rent due from her in spite of a notice asking her to pay the amount within two months of the date of service of the notice.

He, however, held that the plaintiff-respondent was not entitled to a decree for ejectment inasmuch as the appellant-tenant had deposited the rent amount due from her as required by Section 13 (1) of the Madhya Pradesh Accommodation Control Act. 1961 (hereinafter called the Act). The trial Judge was of the view that as the tenant had not defaulted in the payment of rent for three consecutive months, therefore, in view of the proviso to Sub-section (3) of Section 12, read with Section 13(5) of the Act, no decree of eviction on the ground of default in payment of rent could be passed. Accordingly the plaintiff's suit was dismissed.

3. In the appeal which the plaintiff then filed, the First Additional District Judge Jabalpur, decreed the plaintiff's claim. He found that the appellant did not deposit the arrears of rent within one month of service of notice on her as required by Section 13 (1) of the Act. She made an application on 28th August 1964 for extension of time for making the deposit required of her under Section 13 (1) of the Act. This application was allowed and she made the deposit within the extended time, that is on 22nd September 1964. Thereafter, according to the date of the commencement of the tenancy and the provisions of Section 13 (1), the appellant was required to deposit, during the pendency of the suit, the rent for each month by the 27th day of the succeeding month. She did not do so. It was found by the learned Additional District Judge that the appellant deposited Rs. 10 on 1st December 1964, Rs. 5 on 1st February 1965, Rs. 15 on 7th April 1965, Rs. 10 on 23rd April 1965, and Rs. 10 on 15th June 1965; and that in view of this default on the part of the appellant spread over 'a period much larger than a period of three consecutive months' the benefit of Sub-section (5) of Section 13 and of Sub-section (3) of Section 12 could not be given to the appellant.

4. In the second appeal preferred by the tenant, it was contended on her behalf before the learned Single Judge that she had not made a default in the payment of rent during the pendency of the suit for three consecutive months and, therefore, she was entitled to the benefit of Sub-section (3) of Section 12. The learned Single Judge thought it necessary to refer the case to a larger Bench because of the conflicting views expressed by this Court in some decisions on the question of the applicability of Section 12 (3) of the Act. In Chitra Kumar Tiwari v. Gangaram, 1966 MPLJ (NC) No. 178: S.A. No. 864 of 1965 D/- 17-1-1966, Shiv Dayal J. has held that the proviso to Section 12 (3) 'does not come into play in a pending suit' On the other hand, in Ram Prasad v. Sunderlal, S.A. No. 302 of 1964 D/- 7-12-1964 (MP), Bhargava J. was inclined to hold that the 'question of default under Section 12(3) could be agitated in the same suit'. In that case, he observed that the proviso to Section 12 (3) --

'denies the benefit to the tenant if he having obtained such benefit once in respect of any accommodation, again makes a default in the payment of rent of that accommodation for three consecutive months. In the instant case, the very fact that after the first deposit of Rs. 604-2-0, the 2nd deposit which was made by the defendant-appellant was of Rs. 268.50nP., indicates that the default in payment of rent for the accommodation was for a period which was much larger than a period of three consecutive months'.

5. The material provisions to consider in this case are Sections 12 (3) and 13 (5) of the Act, which are as follows--

'12 (3) No order for the eviction of a tenant shall he 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 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 costs as it may deem fit to the landlord.'

In the present case, it has been found as a fact by the learned Additional District Judge that the appellant, after making the initial deposit required of her under Section 13 (1) within the extended time, failed to deposit rent for each month during the pendency of the suit which she was required to deposit within the prescribed date as laid down in the latter part of Section 13 (1) of the Act. On account of the appellant's failure to deposit rent each month before the due date, during the pendency of the suit, it cannot be held that she fully complied with Section 13 (1) so as to avoid a decree of ejectment on the ground of default in the payment on rent. Sub-section (5) of Section 13 is plain enough and it says that a decree for recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant shall not be made if the tenant makes a deposit or payment of rent as required by Sub-section (1) or Sub-section (2) of Section 13.

6. The appellant, however, places reliance on the proviso to Section 12 (3) of the Act and contends that as there was no default on her part in the payment of rent before the due date for three consecutive months during the pendency of the suit, no decree for the eviction could be passed.

7. We are unable to accede to this contention. The main part of Sub-section (3) of Section 12 lays down that if a tenant makes payment or deposit of rent as required by Section 13, then no order for his eviction shall be made on the ground of default in the payment of rent, that is, on the ground specified in Section 12 (1) (a) of the Act. In order to avoid a decree for eviction on the aforesaid ground, the tenant has to make not only the initial deposit as required by Sub-section (1) or Sub-section (2), but has also to continue to deposit rent during the pendency of the suit as enjoined by Sub-section (1) or Sub-section (2) of Section 13 of the Act. The same provision has been repeated in Sub-section (5) of Section 13, albeit with the addition 'but the Court may allow such costs as it may deem fit to the landlord'. Neither the main Dart of Sub-section (3) of Section 12, nor Section 13 (5) admit of any qualification on account of a default in the making of any payment or deposit as required by Section 13, Indeed, it is the compliance of Section 13 that gives to the tenant the benefit of avoiding a decree on the ground stated in Section 12 (1) (a) of the Act.

8. Now, the proviso to Sub-section (3) of Section 12 only carves out an exception to the main provision of Sub-section (3). It does not exclude anything by Implication what the main part of Sub-section (3) of Section 12 provides. It cannot be construed as taking away what the main part of Sub-section (3) of Section 12 of the Act gives. What it says is that the benefit of the main part of Sub-section (3) of Section 12 shall not be given to a tenant even if he makes payment or deposit as required by Section 13 if, after having obtained 'such benefit once in respect of any accommodation, he again makes & default in the payment of rent of that accommodation for three consecutive months'. It is easy to see that the default spoken of in the proviso is not a default occurring in the suit itself. It refers to default before the institution of the suit. The benefit of the main part of Sub-section (3) of Section 12 being available only when there is full compliance by the tenant of Section 13 in the matter of payment or deposit of rent, if the tenant makes a default in the payment or deposit of rent in the suit itself, the question of giving him the benefit of the main part of Sub-section (3) of Section 12 or of Section 13 (5) cannot obviously arise. This makes it plain that the default referred to in the proviso to Sub-section (3) of Section 12 is not a default occurring in the suit itself.

9. Again, the expression 'if, having obtained such benefit once in respect of any accommodation he again makes a default .....' occurring in the proviso also points to the conclusion that the default in the payment of rent for three consecutive months disentitling the tenant to claim the benefit of the main part of Section 12 (3) is the one anterior to the institution of the suit. A tenant obtains the benefit of the main part of Sub-section (3) of Section 12 or Section 13 (5) not during the pendency of the suit, but when the landlord's suit founded on the ground mentioned in Section 12 (1) (a) is dismissed as a result of the tenant earning the benefit of the main part of Section 12 (3) or Section 13 (5) by complying with Section 13 of the Act.

A suit for eviction may be based on various grounds, including default in the payment of rent If a decree for eviction is passed on a ground other than default in the payment of rent, then the question of the tenant avoiding a decree for eviction by complying with Section 13 cannot arise in the same suit or in any subsequent suit. A decree for eviction having been passed, the landlord will not be required to file another suit for the tenant's eviction. It is only when the landlord's suit for eviction is dismissed because of the tenant earning the benefit under Section 13 (5) or Section 12 (3) and subsequently the landlord is required to file again a suit for the tenant's eviction on the ground stated in Section 12 (1) (a), that the question of giving to the tenant the benefit of Section 12 (3) or Section 13 (5) can arise if during the pendency of that suit he makes the payment or deposit as required by Section 13.

It is in such a suit that a tenant is denied the aforesaid benefit if in the period intervening between the dismissal of the landlord's suit for eviction because of the tenant's compliance of Section 13 and the filing of a fresh suit on the ground specified in Section 12 (1) (a) the tenant makes a default in the payment of rent of the accommodation for three consecutive months. It is in this way that the proviso carves out an exception to the main part of Section 12 (3) of the Act, It has, therefore, been rightly held in 1966 MPLJ (NO No. 178: S.A. No. 864 of 1965 D/- 17-1-1966 (Supra) that the proviso to Section 12 (3) 'does not come into play in a pending suit'. With all due respect to Bhargava J. we do not find ourselves in agreement with the view taken by him in S.A. No. 302 of 1964 D/- 7-12-1964 (MP) (Supra) that 'the question of default under Section 12 (3) could be agitated in the same suit.'

10. Here, as has been stated earlier, the appellant-tenant failed to comply with Section 13 (1) of the Act by her failure to deposit or pay rent before the due date in some months during the pendency of the suit It makes no difference whether the failure to deposit rent during the pendency of the suit was for three consecutive months or not That being so, the appellant is not at all entitled to the benefit of the main part of Section 12 (3) or Section 13 (5) of the Act. The plaintiff-respondent's suit was, therefore, rightly decreed by the learned Additional District Judge, Jabalpur.

11. The result is that this appeal fails and is dismissed with costs.


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