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Firm Ganeshram Harvilas and anr. Vs. Ramchandra Rao - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 235 of 1968
Judge
Reported inAIR1971MP104; 1970MPLJ902
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 12(3), 13, 13(1) and 13(2)
AppellantFirm Ganeshram Harvilas and anr.
RespondentRamchandra Rao
Appellant AdvocateA.R. Noaker, Adv.
Respondent AdvocateSwami Saran, Adv.
DispositionAppeal dismissed
Cases ReferredChitra Kumar Tiwari v. Gangaram
Excerpt:
- - 16. the word 'thereafter' in the second part of sub-section (1) clearly means: this saves the provisions of sub-section (1) from being defeated either by the tenant or by the landlord......rent to be deposited under the first part of sub-section (1), a duty is cast on the court to fix rent provisionally and the tenant is then under an obligation to deposit or pay all arrears of rent in accordance with the provisional rent as fixed by the court. 9. the expression 'amount calculated at the rate of rent at which it was paid.... previous to that in which the deposit or payment is made' in sub-section (1) means that the basis of calculation of rent to be deposited will be that rate at which the last admitted payment before the institution of the suit was made. but this provision is controlled by sub-section (2), so that where provisional rent fixed under that sub-section, such provisional rent becomes the basis for deposits or payments under sub-section (1). 10. the words.....
Judgment:

Shiv Dayal, J.

1. This Second Appeal has been referred to this Bench in the following circumstances. The respondent brought a suit against the appellants for their ejectment from a non-residential accommodation and for recovery of arrears of rent. It was alleged that the monthly rent was Rs. 45/- as agreed between the parties. The defendant paid rent upto March 30, 1965, but did not pay any rent thereafter. The plaintiff served a notice dated December 29, 1965, on the defendants determining the tenancy on January 31, 1966, and to pay arrears of rent, Rs. 540/- from April 1, 1965, to March 31, 1966. This notice was served on defendant No. 2 on December 31, 1965. Since the defendants did not pay arrears of rent within two months of the notice, it was a ground for ejectment. Another ground for ejectment was that the plaintiff needed the suit premises for starting his own business.

2. On June 19, 1966, a writ of summons was served on the defendants. On July 16, 1966, that is, within one month of the service of the writ of summons, the defendants deposited Rs. 720/- as arrears of rent. On July 18, 1966, they filed their written statement resisting both the grounds taken in the suit. They alleged that they were no doubt in arrears of rent as alleged by the plaintiff but the reason was that on July 10, 1960, the plaintiff had borrowed from the defendants a sum of Rs. 8252/-. The defendants asked the plaintiff to repay the loan and to adjust the amount towards rent. The plaintiff went on assuring the defendants that this would be done.

3. The trial Court passed a decree only under Section 12 (1) (a) of the M. P. Accommodation Control Act, 1961, (hereinafter called the Act). The issue relating to genuine requirement was decided against the plaintiff. The defendants appealed but their appeal was dismissed.

4. The defendants then preferred this second appeal. One of the contentions was that the defendants had raised a dispute relating to the amount of rent due. It wasthe duty of the trial Court to fix provisional rent under Section 13 (2) of the Act, which it did not do. The defendants had deposited the arrears of rent within one month of the service of the writ of summons. They were, therefore, entitled to the benefit of Section 12 (3) of the Act and it could not be said that they did not comply with the provisions of Section 13 (1) of the Act.

5. This second appeal was heard by Mr. Justice Golvalkar. He was of the opinion that since the question with regard to the interpretation of the expression 'dispute as to the amount of rent' in Section 13 (2) of the Act frequently arises, it should be decided by a Division Bench.

6. The questions we have to decide are these:--

(1) Whether 'dispute' within the meaning of Sub-section (2) of Section 13 of the M. P. Accommodation Control Act, 1961, is confined to a dispute relating to rate of rent?

(2) Whether any enquiry will be made for the purposes of fixing provisional rent under Sub-section (2), and, if so, what will be its nature

(3) Whether Sub-section (2) applies to the first part of Section 13 (1) or to the second, or to both

(4) If the tenant disputed the amount of rent claimed by the landlord, but no provisional rent was fixed by the Court, could the tenant, at the conclusion of the trial of the suit, claim benefit of Section 12 (3) of the Act on the ground that if provisional rent had been fixed, he would have complied with the requirements of Sub-section (1)?

7. As we read Section 13 of the Act, it is in two parts, which would indicate while reproducing it as follows:--

'(1) On a suit or 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 to 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 upto 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.'

The first part requires the tenant to deposit in Court or pay to the landlord, within one month of the service of the writ of summons on him, all arrears of rent uptodate, that is, upto the end of the month previous to that in which the deposit or payment is made. The time of one month prescribed by the section may be extended by the Court in its discretion. The second part requires the tenant to go on depositing or paying by the 15th of every calendar month the rent which became due in the previous month.

8. If any dispute is raised regarding the amount of rent payable by the tenant, the law enjoins the Court to fix a reasonable provisional rent. Sub-section (2) of that section enacts as follows:--

'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.'

The language of Sub-section (2) and particularly the words 'to be deposited or paid in accordance with the provisions of Sub-section (1) till the decision of the suit or appeal' leave no manner of doubt that it will be the reasonable provisional rent fixed by the Court which will have to be deposited by the tenant on every occasion throughout the period commencing with the institution of the suit until the final decision in the appellate Court. It is not a correct reading of the section that the provisional rent is fixed only for the second part of Sub-section (1). No words of Sub-section (2) give that restricted meaning to it. Thus, if there is a dispute before the Court as to the amount of rent to be deposited under the first part of Sub-section (1), a duty is cast on the Court to fix rent provisionally and the tenant is then under an obligation to deposit or pay all arrears of rent in accordance with the provisional rent as fixed by the Court.

9. The expression 'amount calculated at the rate of rent at which it was paid.... previous to that in which the deposit or payment is made' in Sub-section (1) means that the basis of calculation of rent to be deposited will be that rate at which the last admitted payment before the institution of the suit was made. But this provision is controlled by Sub-section (2), so that where provisional rent fixed under that sub-section, such provisional rent becomes the basis for deposits or payments under Sub-section (1).

10. The words 'any dispute' in Sub-section (2) are comprehensive enough in their import to cover every kind of dispute as to the amount of rent payable by the tenant. The dispute may relate to the rate of rent or period for which the tenant is in arrears, or the landlord not adjusting any dues despite an agreement, or the landlord denying a payment alleged by the tenant. To put it differently, every dispute as to the amount of rent which is payable by the tenant will be a dispute within the meaning, of Sub-section (2).

11. This is the force of the words 'any dispute' which is fortified by the words 'amount of rent' and again the words 'provisional rent'. If the provisions of sub-section (2) had been intended to confine its application only to a dispute relating to rate ofrent, the wording of the sub-section would have been altogether different.

12. The dispute as to the amount of rent payable by the tenant may be initiated either by the landlord or by the tenant. The sub-section does not limit its application to a case where a dispute is raised by the tenant. As an illustration, if in his notice prior to the suit the landlord demanded arrears of rent at the rate of Rs. 100/- per month, but the tenant in his reply contended that the rent payable by him was Rs. 50/-per month only and may have even remitted all rent due at that latter rate, the landlord may raise a dispute as to the amount of rent payable by the tenant. The Court shall then fix a provisional rent and the tenant will be under an obligation to deposit or pay on that basis both under the first and the second part of Sub-section (1).

13. Since the fixation of provisional rent under Sub-section (2) is meant solely for the purposes of Sub-section (1) and for no other purpose, nor has it any bearing on the merits of the dispute, which is ultimately to be decided in the final judgment of the Court, the defendant may raise a dispute even before he has filed his written statement.

14. A party who raises a dispute must do so at the earliest opportunity and must seek early fixation of provisional rent so that there may not be unnecessary delay in complying with the provisions of Sub-section (1). No doubt, there must be present before the Court necessary material for its satisfaction to fix provisional rent which will be reasonable.

15. As soon as such a dispute under Sub-section (2) is raised before the Court, it is its duty to fix provisional rent as soon as possible. The urgency lies in the fact that it will be the provisional rent fixed by the Court which will be the basis for deposits to be made both under the first and the second parts of Sub-section (1). The Court cannot defer the fixation of provisional rent to any time longer than what is absolutely necessary. It hardly requires to be said that the Court will extend the time within the first part of Sub-section (1), if necessary, so that the tenant may be able to deposit rent within one month or the extended time, as the case may be. That alone will be a judicial exercise of the discretion; otherwise, it may lead to complications and hardship.

16. The word 'thereafter' in the second part of Sub-section (1) clearly means: (i) 'after one month of the service of the writ of summons of the tenant', or (ii) 'after the time extended' under the first part, for instance, if the Court has extended time of one month to four months under the first part, the tenant will be required to deposit rent under the second part after the expiry of the period of four months. The word 'thereafter' does not necessarily mean the period commencing from the 31st day of the service of the writ of summons.

17. A reading of Sub-section (2) as above, answers the argument that if in fixing the provisional rent the Court takes, for instance, three months, then the tenant will be committing default under the first part of Sub-section (1) for no fault of his and thereby incurring the penal consequences under Sub-section (6) and also the argument that there is bound to be default under the second part of Sub-section (1) because the Court has no power to extend time for payment.

18. The words of Sub-sections (1) and (2) are clear and unambiguous. That being so, according to the elementary rule of interpretation of statutes, the grammatical and natural meaning must be given to the words. Moreover, the view we take also accords with the scheme and intention of Section 13. The object and purpose of Section 13 (1) is to prevent the tenant from adopting dilatory tactics in a suit for his ejectment without paying arrears of rent and the rent falling due during the pendency of the suit.

The intent and object of the second Sub-section is also abundantly clear. Merely by raising a dispute as to the amount of rent, the tenant should not be allowed to circumvent the requirements of Sub-section (1). Every such dispute no doubt will be determined in the final decision of the suit, but the scheme and the intention of the law is that the tenant must go on depositing or paying rent as it goes on accruing due and since the final determination will necessarily take time, a provision has been made for fixing a provisional rent. The tenant is not allowed to choose arbitrarily a rate or amount of rent by alleging that that was the agreed rent and to pay only that much. Nor could the landlord be allowed to fix arbitrarily exorbitant rate or amount of rent and to claim that the tenant must pay it. Power is, therefore, given to the Court to fix a provisional amount of rent. This saves the provisions of Sub-section (1) from being defeated either by the tenant or by the landlord.

19. As the provisional rent to be fixed by the Court under Sub-section (2) must be 'reasonable' it is implicit that the Court must hold an enquiry and on the basis of the enquiry, it must fix a reasonable provisional rent. This enquiry cannot be the same as the trial and the determination of the issue which will arise in the suit pertaining to the dispute as to the amount of rent payable by the tenant. In the suit there will be an issue and after recording evidence of the parties, the issue will be decided finally in the judgment of the suit. Subsection (2) of Sec. 13 cannot envisage an elaborate and parallel trial of the same issue as a preliminary trial. Moreover, the final decision of the issue will not fix 'a provisional rent'. Two things, therefore follow as a natural and necessary consequence:-- (1) That the enquiry must be preliminary and immediate and its disposal mustbe as expeditious as possible; and (2) the enquiry will be a summary one. The scope and size of the enquiry will depend upon the nature of the dispute and the material before the Court on the date on which it is called upon to make an order under Sub-section (2). For instance, there may be documents from which a reasonable provisional rent, e.g., rent note; receipts of rent paid; in case where the tenant claims an agreement or adjustment of the amount due to him in payment of rent due by him, the document containing that agreement or adjustment; or an agreement for adjusting the amount due by the tenant towards the expenses incurred by him on repairs of the accommodation, will be useful material which the Court will take into consideration while determining the provisional rent. These instances do not formulate any hard and fast rules. The Court may require the parties to file affidavits. The Court may even on persual of documents filed by the parties forthwith fix a reasonable provisional rent. The Court has merely to satisfy itself prima facie what provisional rent will be reasonable. The discretion is wide but has to be exercised judicially and objectively. Even documentary material present at that stage before the Court may be found to be enough to guide it in making the discretionary order. One thing, however, is certain that the stage of fixing a provisional rent is not one when the Court should enter into a full-dressed trial or any elaborate enquiry.

20. Parties have referred to us the decisions in Chapsibai v. Mahendrakumar, 1963 Jab LJ (SN) 240 = 1963 MPLJ (Note) 256; Kulbhushan v. Baji Rao, 1964 Jab LJ (Note) 169; Surajprasad v. Ganpatrai, 1967 MPLJ (Note) 65 and Mishrilal v. Gulaba, 1970 MPLJ (Note) 8.

21. The view we take is in consonance with the Full Bench decision in Ram-piyari v. Ramautar, 1968 Jab LJ 146 or 1968 MPLJ 1 = (AIR 1968 Madh Pra 87) (FB), which upheld the view taken in Chitra Kumar Tiwari v. Gangaram, 1966 Tab LJ 1028.

22. The conclusions we have reached may now be summed up thus:--

(1) Every kind of dispute as to the amount of rent payable by the tenant is within Sub-section (2) of Section 13. The dispute may be raised either by the landlord or by the tenant. The dispute must be specific and the attention of the Court must be invited to it and the Court must be asked to fix a reasonable provisional rent.

(2) As soon as such a dispute under Sub-section (2) is raised before the Court, the Court must fix a reasonable provisional rent as expeditiously as practicable. The fixing of provisional rent cannot be deferred. Since the provisional rent has to be 'reasonable', the Court has to apply its mind and satisfy itself prima facie what provisional rent will be reasonable. The enquiry is preliminaryand summary in nature; for instance, the Court may fix provisional rent even on the documentary material present at that stage before the Court, or may require the parties to file affidavits. No hard and fast rules can be formulated.

(3) If a dispute is raised under Sub-section (2) and a provisional rent is not fixed expeditiously so as to unable the tenant to deposit or pay the arrears of rent within one month of the service of the writ of summons on him, the Court will only be exercising its discretion judicially, if it extends time suitably under the first part of Sub-section (1).

(4) The word 'thereafter' in the second part of Sub-section (1) means 'after one month of the service or the writ of summons on the tenant', or, where time is extended, 'after the time so extended' under the first part of Sub-section (1).

(5) When provisional rent is fixed under Sub-section (2) that becomes the basis for all deposits and payments under the first part and the second part of Sub-section (1) and this basis supersedes the basis indicated in the first part of Sub-section (1), which is, at the rate at which the last admitted payment before the institution of the suit was made. Sub-section (2) controls both the parts of Sub-section (1) of Section 13.

(6) Where no provisional rent is fixed, because the party raising the dispute did not press for it, and the Court also overlooked the dispute, the tenant must deposit rent as indicated in Sub-section (1), or, at his own risk, deposit or pay such rent as he thinks is due. In the latter case, the tenant will have to bear the consequences if the Court, when the question is raised either under Section 13 (6) or Section 12 (3) of the Act, decide that the amount of rent payable by the tenant was a larger sum.

(7) If the tenant does not raise a specific dispute and pray for fixation of provisional rent and the Court also omits to fix a provisional rent, the tenant cannot, at the conclusion of the trial, claim protection of Section 12 (3) of the Act on the ground that if provisional rent had been fixed, he would have complied with the provisions of Section 13 (1).

23. As the learned Single Judge has referred the appeal itself for being decided by the Division Bench we shall proceed to deal with this case on merits.

24. In the present case, the appellants contention is that since they deposited all rent due by them in compliance with the first part of Section 13 (1) of the Act and since the trial Court did not fix provisional rent as required by Sub-section (2), it cannot be said that they did not comply with the provisions of Section 13. The appellants claim benefit of Section 12 (3) of the Act. In our opinion there contention cannot be accepted.

25. It is not in dispute that the defendants did not pay arrears of rent within the time prescribed in Section 12 (1) (a) ofthe Act. Decree for ejectment was, therefore, inevitable unless the defendants earned the protection of Section 12 (3) of the Act by complying with the provisions of Section 13.

26. The suit was instituted on 1-4-1966 claiming arrears of rent from 1-4-1965 to 31-3-1966 at Rs. 45/- per month. The writ of summons was served on the defendants on 19-6-1966. They deposited Rs. 720/- on 16-7-1966 that is, rent from 1-4-1965 to 31-7-1966. This deposit was made before the written statement was filed. In his memorandum of deposit, the defendants did not raise any dispute as to the amount of rent. It reads thus: --

'NIWEDAN HAI KI WADI DWARA NOTICE EWAM WADPATRA FAD 3/4 MEN WARNIT SHESH BHADA 1-4-65 LAGAYAT 31-7-66 KA 16 MAH KA 720 UPTAYE NYALAYA SHRIMAN KE SUMMONS KE NIRWAH KE EK MAS Kl AWADHI KE BHITAR JAMA KIYA JATA HAI.

ATEWA WADI BHADA SHESH RA-HANE KE ADHAR PAR NISKASAN KI DECREE PRAPTA KARNE KA ADHIKARI NAHIN HAI. RAQAM MAZKUR JAMA KARNE KA ADESH PRADAN KARNE KI KRIPA KI JAWE.'

There is no indication in the memorandum of deposit about the plea of adjustment which was subsequently raised in the written statement. There is nothing to show that the defendants either on July 16, 1966, when they made the deposit or on July 18, 1966, when they filed the written statement, or at any time thereafter, asked the Court to fix provisional rent. On July 30, 1966, issues were framed. Thereafter the parties produced their evidence. Arguments were heard on February 14, 1967, and judgment was delivered on February 23, 1967. Even in the memorandum of the first appeal, the defendants did not raise the objection that the trial Court did not fix provisional rent under Sub-section (2) of Section 13. Thus, the defendants were responsible for not raising a dispute and the Court not fixing provisional rent under Section 13 (2). The defendants were bound to go on depositing every month, rent for the preceding month at Rs. 45/- per month under the second part of Sub-section (1). This they did not do. Therefore, Section 12 (3) cannot extend its protection to the defendants.

27. No other point was pressed by the appellant.

28. The appeal is dismissed with costs.


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