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Sharadchand and ors. Vs. Vishnupant - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 687 of 1977
Judge
Reported inAIR1978MP143; 1978MPLJ362
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 13, 13(1) and 13(2); Code of Civil Procedure (CPC) - Order 6, Rule 7
AppellantSharadchand and ors.
RespondentVishnupant
Appellant AdvocateA.P. Tare, Adv.
Respondent AdvocateY.S. Dharmadhikari, ;D.R. Dharmadhikari and ;Kanti Roy, Advs.
Cases ReferredRatanchand v. Rajendra Kumar
Excerpt:
.....first is that the full bench in that case, in strong language, rejected the contention that the word 'suit' in section 13 (1) is to be read as including an appeal being a continuation of the suit. on a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 12..nowhere in the whole of the act is contemplated any other proceeding for eviction of tenant 'on any of the grounds referred to in section 12' than a 'suit'.therefore, all that remains to be considered is whether 'proceeding' means 'appeal'.patently enough, if that was so, then, as pointed out in harishchandra (air 1977 madh pra 199) (fb) there being hardly any other word in legal parlance so well known and common as appeal, it is unthinkable that the framers of the act would use the word..........days or such longer period as the court may deem fit. (3) if the landlord intends to obtain the rent deposited by or on behalf of the tenant in accordance with the above provision, the amount shall be paid by the court to the landlord after deducting the proper court fee therefrom.' there is similarity between the bihar act and the madhya bharat act. 11. in our opinion, it is unnecessary to retravel the other grounds on which harishchandra v. indersingh (air 1977 madh pra 199) (fb) (supra) is based. suffice to remember two things. firstly, the provisions contained in section 13 were never intended to serve as a machinery for recovering rent from the tenant, as an alternative to a suit. the object of that section is to put a check on the unscrupulous tenant who would protract.....
Judgment:

Shiv Dayal, C.J.

1. When this second appeal was placed before a learned single Judge for admission, he passed the following order:--

'The appeal is admitted for hearing on the following questions:--

(1) (a) There being non-compliance with Section 13 (1) of the M. P. Accommodation Control Act, 1961, in the trial Court as well as in the first appellate Court, that first appeal also being by the plaintiff-landlord, was Section 13 (6) of the Act attracted in both the Courts below?

(b) For the same reason, was the plaintiff entitled to a decree on the ground contained in Clause (a) of Sub-section (1) of Section 12 of the Act?

2. Is the Full Bench decision in S. S. Harishchandra Jain v. Indersingh Bedi, 1977 MP LJ 417 : (AIR 1977 Madh Pra 199) no longer good law in view of the Supreme Court decision in Radha Kishan Sao v. Gopal Modi, AIR 1977 SC 1217.

Issue notice to the other side for a date to be fixed in the office. B. P. F. within a week.

The aforesaid question No. 2, arising for decision in the appeal, has naturally to be decided by a larger Bench in view of the fact that the correctness of the Full Bench decision in S. S. Harishchandra Jain v. Indarsingh Bedi, (AIR 1977 Madh B 199) has been challenged. The papers be, therefore, laid before the Hon'ble the Chief Justice for constituting a larger Bench for decision of the said question No. 2 after the respondents are duly served.'

As Harishachandra's case (supra) was decided by Full Bench of five Judges, this Bench was constituted to reconsider the correctness of that decision. In Harishchandra's case it was held that Section 13 of the M. P. Accommodation Control Act, 1961 (the Act, for short) does not apply and no part of that section applies, to an appeal, whether the appeal be by the tenant or by the landlord. It was further held that the Full Bench decision reported in Ratandhand Firm v. Rajendra Kumar, 1969 MP LJ 672: (AIR 1970 Madh Pra 1) did not lay down correct law. Section 13 of the Act enacts as follows:--

'When tenant can get benefit of protection against eviction-

(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.

(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-sec. (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), mo 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.

2. If the corresponding provisions contained in Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947), which were for consideration before the Supreme Court, are perused with a little care, it can at once be seen that they are quite different from those contained in Section 13 (1) of the M. P. Act, and, therefore, the Supreme Court decision is patently distinguishable. Section 11-A of the Bihar Act is reproduced in para 11 of the Supreme Court decision. It reads thus:--

'Deposit of rent by tenants in suits for ejectment:--

If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.'

(Underlined by us)

3. Now, the two apparently corresponding provisions may be compared:--

BIHAR ACT

M. P. ACT

(1)

There is no statutory liability of the tenantto deposit rent unless a specific orderis made by the Court.

(1)

No orderof the Court is necessary. The liability is statutory, It accrues as soon as thewrit of summons of the suit, is served on the tenant.

(2)

The landlord has to make an application toobtain such order of the Court.

(2)

No such application is contemplated.

(3)

The landlord may make such application'at any stage of the suit' for order.

(3)

These or any such words are not there.

(4)

Parties have to be given an opportunity tobe heard on such application of the landlord.

(4)

No such provision.

(5)

It is discretionary with the Court :(a) It mayreject the landlord's application or (b) it may make an order for deposit of rent.

(5)

No such discretion is vested in the Court.

(6)

If the court makes such order, the rate at which rent is to be deposited is determinedby the Court.

(6)

The question does not arise. However, underSection 13 (2). theCourt has to fix reasonable provisional rent, in case there is a dispute.

(7)

If the tenant does not deposit rent in spiteof the order of the Court, 'theCourt shall order the defence against ejectment to be struck out.'

(7)

Under sub-sec.(6) of S, 13. the Court may orderthe defence to be struck out and it has been interpreted to be an extreme stepwhich is to be taken in case of contumacy or positive mala fide.

4. The words 'at any stage of the suit' are undoubtedly comprehensive enough to apply to all stages of the litigation whether in the trial Court or in the first appellate Court or in the second appellate Court or in revisions, or even in appeal to the Supreme Court. In the Madhya Pradesh Act, the words 'at any stage of the suit' are not there. It can be seem from the observations in para 12 of their Lordships' decision that it rests on the expression 'at any stage of the suit'. Thus, the provisions in the Bihar Act being different from those in the M. P. Act, Radha Kishan's case (AIR 1977 SC 1217) (supra) is not apposite Shri Tare argued that in the M. P. Act also appeal is included in the suit, since appeal is a continuation of the suit. It is not correct to think that for all purposes an appeal is to be considered as continuation of the suit. It has to be seen in the context of the statute, in each case, whether an appeal would be a continuation of the suit for the particular purpose under consideration. Having regard to the provisions contained in Sub-section (1) of Section 13 their rigour and impact it is not possible to construe the word 'suit' as including appeal on the basis that an appeal is continuation of the suit. That interpretation would lead to such unreasonable and unjust conclusions which the framers of law could not have contemplated. The landlord's appeal would be from the dismissal of his suit either (i) because he was unable to prove one of the grounds contained in Clauses (a) to (p) of Section 12 (1) of the Act, or (ii) the suit for eviction was dismissed because the tenant earned special protection contained in Section 12 (3). In the latter case, the tenant, by virtue of the deterrent in Section 12 (3), will have to go on paying rent directly to the landlord regularly and, at the most, he can commit two consecutive defaults, but he cannot afford to commit the third default; otherwise, he would be evicted and the protection under Section 12 (3) will not be then available to him. It is made available anly once in life and it is subject to the conditions that he will go on depositing rent, regularly but would not commit three consecutive defaults thereafter. Thus the landlord is reassured of payment of rent to him. Therefore, there is no equity against, the tenant for which he should be required to deposit rent and remain constantly under the risk of his valuable and vested right being destroyed, if he commits even a single default in depositing rent in the appellate Court. Such, an intention could not be attributed to the Legislature. In the former case, obviously there is no equity in favour of 1be landlord inasmuch as the suit is dismissed because no ground under Section 12 (1) was available to him.

5. Furthermore, when a suit is dismissed by the trial Court and if the word 'suit' includes an appeal, the tenant will have to presume and anticipate that the landlord will prefer an appeal against him so that he must go on depositing rent from the very next month of the date of the decree to maintain continuity and not commit any break. If he commits a single default, he loses the protection under Section 12 (3). (Jagdish Kapoor v. New Education Society, 1967 Jab LJ 859 : (AIR 1968 Madh Pra 1) (FB)). The Legislature would not contemplate that the tenant would lose the valuable right which vested in him, on the suit being dismissed, simply because he commits a single default in the appellate Court. There is no provision in any law that a successful party must presume that an appeal would be filed against him and should be subjected to an obligation, the non-fulfilment of which would lead to disastrous results.

6. There is no comparison or analogy between the provisions of the Bihar Act, which were before their Lordships in Radha Kishan Sao v. Gopal Modi (AIR 1977 SC 1217) (supra) and the provisions contained in the Madhya Pradesh Act. When is the tenant required to deposit rent in the appellate Court under the Bihar Act? In the first place, there must be an application by the landlord in the appellate Court for an order requiring the tenant to deposit rent. In the second place, the tenant will be given an opportunity of being heard against the order prayed for. In the third place, the Court will apply its mind and exercise its discretion whether, having regard to the facts and circumstances of the case, such an order should be passed. The Court may then pass an order, or it may refuse to pass an order requiring the tenant to deposit rent. All this is just and equitable. The very fact that there must be an order of the Court in obedience of which the tenant will be required to deposit rent, makes it a case of equity. There is no automatic compulsion. Now, in the above setting of the provisions, it can be said that under the Bihar Act, when the real content of the word 'suit' is to be found out, the landlord can make an application under Section 11-A not only in the trial Court but also in the appellate Court because of the words 'at any stage of the suit'. And, then it must be said that the appeal is a stage of the suit. Their Lordships held so because of the context and not divorced from it.

7. On the other hand, if in the Madhya Pradesh Act, the word 'suit' in Section 13 (1) is read as to include an appeal, most inequitable and unjust consequences will follow, as we have pointed out above. It bears repetition that when a suit is dismissed, the tenant acquires a valuable right. Specific language will be required to take away that right otherwise than on merits of the case. What Shri Tare wants us to hold is that even if the tenant commits a single default in depositing rent in the appellate Court, the right vested in him by the dismissal of the suit will be destroyed and his defence would be struck out. We are unable to give that construction to the word 'suit' in the setting of the provisions of the Madhya Pradesh Act. We must hold that here the word 'suit' does not include an appeal as continuation of the suit.

8. We must now mention two things from the decision in Ratanchand Firm v. Rajendra Kumar (AIR 1970 Madh Pra 1) (FB) (supra) on which Shri Tare strongly relied. The first is that the Full Bench in that case, in strong language, rejected the contention that the word 'suit' in Section 13 (1) is to be read as including an appeal being a continuation of the suit. There also it was observed as follows:-- (At p. 3 of AIR Madh Pra).

'If an appeal, being a continuation of the suit, is included within the word 'suit' in Sub-section (1) then even after a landlord's suit is dismissed and before he actually files an appeal the tenant must continue to go on depositing rent on the 15th of each month. That is to say a tenant must, in all cases, assume that an appeal would be filed against him although, in fact, the landlord may not afterwards file any appeal. Unless the tenant proceeds on this assumption he cannot comply with the requirement of Sub-section (1) of continuing to deposit month by month on the 15th of each succeeding month a sum equivalent to the rent. Such a result is so unreasonable that by itself it goes to show that the Legislature could not have intended to include appeal within the word 'suit'.'

In that case also, the Full Bench observed that the dicta in Garikapati v. Subbiah Choudhry, AIR 1957 SC 540 at p. 553 and Dayawati v. Inderjit, AIR 1966 SC 1423 at p. 1427 are not of universal application. That Full Bench observed:-(at pp. 2-3 of AIR Madh Pra)

'It does not, however, follow that in every statute whenever the word 'suit' is used, appeals arising from suit must be included within it. To find out the real content of the word 'suit' and for that matter any word when used in a statute the setting and the context in which the word is used must be taken into account.'

The second thing is that in Ratanchand's case it was held that the provisions of Section 13 (1) would not apply to a tenant's appeal. In other words, if a decree has been passed against the tenant and he prefers an appeal, then he need not deposit rent. If that is so, it is most unreasonable and unjust to construe the provisions as to require the tenant to deposit rent when he has succeeded in the trial Court and the suit has been dismissed. It would be patently anomalous to hold that if the suit has been dismissed, the tenant must deposit rent, but if the suit is decreed against him, he need not deposit rent.

9. We may, in passing, point out that there are numerous provisions in the law where the word 'suit' cannot be read as to include appeal. For instance, in Orders 6 and 7 of the Civil P. C. It is not necessary to multiply examples.

10. Then it was urged for the landlord that the word 'proceeding' must be read as including 'appeal'. Now, the opening words, of Section 13 (1) of the Act are: On a __suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12......... 'Nowhere in the whole of the Act is contemplated any other proceeding for eviction of tenant 'on any of the grounds referred to in Section 12' than a 'suit'. Therefore, all that remains to be considered is whether 'proceeding' means 'appeal'. Patently enough, if that was so, then, as pointed out in Harishchandra (AIR 1977 Madh Pra 199) (FB) there being hardly any other word in legal parlance so well known and common as appeal, it is unthinkable that the framers of the Act would use the word 'proceeding' for 'appeal', when they have distinctively used the word 'suit' in the Act; also in Sub-sections (1) and (2) of Section 13 itself. If the Legislature had intended to apply Section 13 (1) to 'appeal', it would have employed that word in it. But the word 'appeal' is not seen in Sub-section (1) at all. As exposed in Harishchandra, clues are available which reveal that the word 'proceeding' appears to have, by inadvertence of the draftsman, entered into Sub-sections (1) and (2) from other enactments For instance, in the West Bengal Act, the word 'proceeding' occurs in Sections 13 and 17, where that word has a meaning. But here it has none. Likewise, the words 'or appeal' at the end of Sub-section (2) evidently crept in by the negligence of the draftsman, when he borrowed the language from Section 5 of the Madhya Bharat Accommodation Control Act, the draftsman little realising that the word 'appeal' in that section had a meaning. Under the specific provisions of that Act, the landlord could make an application in the appellate Court as well as in the trial Court for an order requiring the tenant to deposit rent. That section may be reproduced here:--

'5. Rent pending suit or appeal for eviction:--

(1) On a suit being filed for eviction on any one of the grounds mentioned in Section 4 or in case of appeal being preferred, the Court shall, on request of the landlord:--

(a) If the rent is already agreed upon, order the tenant to deposit in the Court the rent payable according to the terms of the agreement from the date of filing of the suit or appeal till the decision of the suit or appeal;

(b) If the rent is not already agreed upon, fix a reasonable provisional rent and order the tenant to deposit such rent every month in the Court till the decision of the suit or appeal. The rent so fixed shall be payable from the date of filing of the suit or appeal.

(2) In the case of default on the part of the tenant in depositing the rent even after the order of the Court, the right of the tenant to defend shall be terminated:

Provided that the Court may before making an order of terminating the right of defence provide an opportunity to the tenant for depositing the rent within fifteen days or such longer period as the Court may deem fit.

(3) If the landlord intends to obtain the rent deposited by or on behalf of the tenant in accordance with the above provision, the amount shall be paid by the Court to the landlord after deducting the proper Court fee therefrom.' There is similarity between the Bihar Act and the Madhya Bharat Act.

11. In our opinion, it is unnecessary to retravel the other grounds on which Harishchandra v. Indersingh (AIR 1977 Madh Pra 199) (FB) (supra) is based. Suffice to remember two things. Firstly, the provisions contained in Section 13 were never intended to serve as a machinery for recovering rent from the tenant, as an alternative to a suit. The object of that section is to put a check on the unscrupulous tenant who would protract litigation without paying rent. That purpose is served in the suit. The object is equitable. When the suit is dismissed, the equity is reversed. Once that is borne in mind, all exercise is in futility to somehow make Section 13 applicable to appeals by means of laboured interpretation. As pointed out in Harishchandra, you would then have to read 'institute' as 'preferred' in relation to appeal, because the usual term employed is 'suit instituted' and 'appeal preferred'; the expression 'writ of summons' will have to be read as 'notice of appeal'; and the expression 'hearing of suit' will have to be read as 'hearing of suit in appeal' as was done in Ratanchand v. Rajendra Kumar (AIR 1970 Madh Pra 1) (FB) (supra). In our opinion, it is wholly unnecessary to stretch the words and, by giving them unusual meaning, to rewrite the law. As demonstrated in Harishchandra v. Indersingh (supra), there is no hardship or injustice to the landlord, if the tenant does not deposit rent in the appellate Court after the dismissal of the suit. Secondly, and which is more important, to defend the landlord's appeal from the dismissal of his suit, is a very valuable right of the tenant. It vests in him as soon as the suit is dismissed. That valuable and vested right cannot be taken away or curtailed except by law in express and unambiguous language.

12. It was an argument that the words 'till the decision of the suit or appeal' occurring in Sub-section (2) of Section 13 indicate that rent has necessarily to be deposited in the appellate Court also. Now, it can easily be seen that under Sub-section (2) what is to be fixed by the Court is 'reasonable provisional rent' and this is done when there is a dispute as to the amount of rent. Therefore, what is necessarily envisaged is a dispute in the trial Court. If there is no dispute, Sub-section (2) does not apply at all. If there is a dispute, the Court is bound to frame an issue and decide it on merits in its final judgment. As soon as the suit is decided, the order fixing provisional rent gets automatically dissolved. By its own force, the word 'provisional' means that it is stop-gap arrangement. Sub-section (2) aims at fixation of 'reasonable provisional rent' so that the tenant may not withhold rent and deposit nothing on the pretext that there is a dispute as to the amount of rent due by him. On the one hand, such a dispute cannot at once be decided; on the other hand, the Legislature did not want the tenant to withhold the entire rent on such a pretext indefinitely. The via media is found in Sub-section (2). When there is a dispute, the section enjoins the Court to fix rent; that rent must be reasonable; and that rent will be provisional that is to say, the order will remain in operation until and unless the dispute as to the amount of rent is decided on merits, after framing issue and trial of that issue. That alone is the force of the word 'provisional'. Now, as soon as the dispute regarding that issue is decided, there remains no question of depositing any 'provisional rent'; the tenant has to deposit or pay rent as determined by the Court in accordance with the adjudication on that issue. It will, therefore, be inapt and incorrect to say that even after the decision of the suit in the trial Court (in which necessarily the dispute will have been decided), the tenant will still deposit in the appellate Court 'provisional rent.' The position which obtains in the Bihar Act is quite different. It contemplates an application by the landlord which may be made in the trial Court or even if it has not been made in the trial Court, it can be made in the appellate Court. That was also the position under the Madhya Bharat Act with slight variations. It is also noteworthy that in the M. P. Act, in the opening words of Sub-section (2), 'appeal' is not found so that in the closing words of the section, the word 'appeal' becomes meaningless.

13. Shri Y. S. Dharmadhikari relied on the decision in Harishchandra's case (AIR 1977 Madh Pra 199) (FB) and found himself unable to support Ratanchand's case, (AIR 1970 Madh Pra 1) (FB) where a contrary view was taken. He laid a great deal of stress on the proposition that on the dismissal of the landlord's suit, a valuable right vests in the tenant-respondent, so that, unless the Legislature makes a specific and unambiguous provision, a subsequent event of non-deposit of rent, cannot demolish that right.

14. We answer the question referred to us in the negative. Agreeing with the dicta in Harishchandra v. Indersingh, 1977 MPLJ 417 : (AIR 1977 Madh Pra 199) (FB), we hold that Section 13 of the M. P. Accommodation Control Act, 1961, does not apply, and no part of that section applies, to an appeal (whether the appeal be by the tenant or by the landlord) and that the law was correctly laid down in Harishchandra's case and it continues to be so because their Lordships' decision in Radha Kishan v. Gopal Modi, AIR 1977 SC 1217 is clearly distinguishable, the provisions of the Bihar Act being different from those of the Madhya Pradesh Act. Further, we say with respect that Ratanchand v. Rajendra Kumar (AIR 1970 Madh Pra 1) (FB) (supra) did not lay down law correctly when it held that Section 13 applies to an appeal also.

15. This second appeal shall now be placed before a learned single Judge for disposal.


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