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S.S. Harishchandra JaIn and ors. Vs. Dr. CaptaIn Indersingh Bedi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 85 of 1970
Judge
Reported inAIR1977MP199
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 12(1), 13, 13(1), 13(2) and 13(5); Madhya Pradesh Accommodation Control Act, 1955 - Sections 5
AppellantS.S. Harishchandra JaIn and ors.
RespondentDr. CaptaIn Indersingh Bedi
Appellant AdvocateS.C. Jain and ;O.P. Namdeo, Advs.
Respondent AdvocateJ.B. Dsserdas and ;D.L. Jain, Advs.
Cases ReferredRatanchand Firm v. Rajendra Kumar
Excerpt:
- - the trial court found that the required deposits of rent having been made by the defendant-tenant, the condition necessary for section 13 (5) of the act are satisfied. excepting for a situation like the one in hand, the questions whether the suit was rightly dismissed and whether the tenant had complied with section 13 (1) of the act till the decision of the suit, if raised, would bs decided by the judgment in the appeal. ' 5. the factual aspect of this case that emerges is that in this suit by the landlord on the ground provided in section 12 (1) (a) of the act the tenant disputed the amount of rent payable by him and so sub-section (2) of section 13 of the act was clearly attracted. (4) if the court is satisfied that any dispute referred to in sub-section (3) has been raised by a.....sharma, j.1. the division bench hearing this appeal felt that the full bench decision of this court in ratan-chand firm v. rajendra kumar, 1969 mplj 672 : (air 1970 madh pra 1 (fb)) required further consideration. the question formulated for opinion is as follows:--'in appeal by the landlord against the dismissal of his suit for eviction under sub-section (5) of section 13 of the act, is the landlord entitled to succeed if the tenant commits any default in the payment or deposit of current rent during the pendency of the appeal, even though the suit was rightly dismissed, as the tenant had fully complied with the provisions of sub-section (1) of section 13 of the act upto the date of dismissal of the suit?'2. the plaintiffs-appellants had filed a suit for recovery of arrears of rent,.....
Judgment:

Sharma, J.

1. The Division Bench hearing this appeal felt that the Full Bench decision of this Court in Ratan-chand Firm v. Rajendra Kumar, 1969 MPLJ 672 : (AIR 1970 Madh Pra 1 (FB)) required further consideration. The question formulated for opinion is as follows:--

'In appeal by the landlord against the dismissal of his suit for eviction under Sub-section (5) of Section 13 of the Act, is the landlord entitled to succeed if the tenant commits any default in the payment or deposit of current rent during the pendency of the appeal, even though the suit was rightly dismissed, as the tenant had fully complied with the provisions of Sub-section (1) of Section 13 of the Act upto the date of dismissal of the suit?'

2. The plaintiffs-appellants had filed a suit for recovery of arrears of rent, damages, notice charges and ejectment from the suit premises against the respondent-defendant. This suit admittedly was on the ground provided in Section 12 (1) fa) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act'). On an application of the defendant the trial Judge fixed the provisional rent as provided by Section 13 (2) of the Act. Later, the defendant submitted an application seeking relief under Section 13 (5) of the Act. The trial Court found that the required deposits of rent having been made by the defendant-tenant, the condition necessary for Section 13 (5) of the Act are satisfied. He, therefore, held that the plaintiffs are not entitled to claim ejectment in this suit on the ground of Section 12 (1) (a) of the Act. Accordingly, he dismissed the plaintiff's suit for ejectment.

3. It would be appropriate to refer that the trial Court by its order, dated 6-1-1970 had fixed case for issues and filing documents on 29-1-1970. But then it appears that the issues were never framed. The plaintiff had claimed Rs. 4,480/- as arrears of rent from 1-3-1967 to 30-4-1968 at the rate of Rs. 320/- p. m. Since the trial Court found that there was a dispute about it within the meaning of Section 13 (2) of the Act, it had fixed the provisional rent. No doubt, the provisional rent fixed by the Court was the same i. e. Rs. 320/- p. m. as was claimed by the plaintiff but that does not make any difference so far as the requirement of deciding the question is concerned. The only effect of payment or deposit of rent by the tenant in accordance with Section 13 (1), is that no order or decree for eviction shall be passed against him as is contemplated by Sections 12 (3) and 13 (5) of the Act. There may be cases where the provisional rent fixed by the Court may be in between the figures claimed as rent by the landlord and the tenant. In such a suit there being a dispute as to the amount of rent and the Court having fixed the provisional rent, the issue in that behalf has to be decided. Either of the two i. e. the landlord or the tenant or both of them may be aggrieved by the finding on that issue or none may be aggrieved.

4. In the present case the Division Bench has found that the suit was rightly dismissed as the tenant had fully complied with the provisions of Sub-section (1) of Section 13 of the Act upto the date of dismissal of the suit. As stated in para 7 of the referring order the finding of the trial Court that the defendant had fully complied with the provisions of Section 13 (1) of the Act during the pendency of the suit was not questioned on behalf of the appellants. But there may be cases where the finding in this behalf may not be correct. Excepting for a situation like the one in hand, the questions whether the suit was rightly dismissed and whether the tenant had complied with Section 13 (1) of the Act till the decision of the suit, if raised, would bs decided by the judgment in the appeal. Tht learned Judges in para 12 of their referring order have observed that 'there can be no doubt that the provisions of Sub-section (1) of Section 13 of the Act are applicable at least to some appeals, because Sub-section (2) of Section 13 provides that the provisional rent determined thereunder shall be deposited or paid in accordance with the provisions of Sub-section (1) till the decision of the suit or appeal.'

5. The factual aspect of this case that emerges is that in this suit by the landlord on the ground provided in Section 12 (1) (a) of the Act the tenant disputed the amount of rent payable by him and so Sub-section (2) of Section 13 of the Act was clearly attracted. The trial Court dismissed the landlord's suit in the manner as has been stated above. The landlord preferred the present appeal against that judgment and decree. In the memo of appeal the finding of the trial Court that the tenant had complied with Section 13 (1) of the Act was challenged. Besides other grounds, the ground that the trial Court has erred in not deciding the other issues was also taken. The question, that has to be considered is whether in this appeal by the landlord to which Sub-section (2) of Section 13 applies, the tenant is required to deposit the rent in accordance with Sub-section (1) of Section 13.

6. Section 13 of the Act is 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 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.

(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 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 maked 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.'

7. The learned Judges of the Division Bench have observed that an application by a landlord to sue in forma pauperis and an application for restoration of landlord's suit dismissed in default can be treated as a 'proceeding' within the meaning of Sub-section (1) of Section 13 of the Act. Then it is said that the word 'appeal' having been used in Sub-section (2) of Section 13 is indicative of that word 'proceeding' in Sub-section (1) does not include an 'appeal'. As regards the meaning of the word 'suit' what is said is that it has been used in a restricted sense and would not include an 'appeal', because had it been used in its wider sense, then 'it would not at all have been necessary for the legislature to make a specific mention of 'appeal' as distinct from 'suit' in Sub-section (2) of the said section.' While suggesting that the words 'suit' and 'proceeding' in Sub-section (1) of Section 13 of the Act do not include an appeal, the word 'thereafter' in Sub-section (1) has been construed to be wide enough to cover the period subsequent to the suit, particularly because it has not been laid down in Sub-section (1) that the tenant shall deposit or pay monthly rent only during the pendency of the suit. It has been observed that 'It is, therefore, clear that in case the tenant wants to derive benefit from the provisions of Section 13 of the Act by filing an appeal, he must continue to pay or deposit rent up to the date of decision of the appeal.' According to the Division Bench 'the question of making a payment or deposit as required by Sub-section (1) of Section 13 for purposes of Sub-section (5) of the section can arise only in an appeal preferred by the tenant and not in an appeal preferred by the landlord.'

8. In Firm Ganeshram Harvilas v. Ram Chandra Rao, 1970 MPLJ 902 : (AIR 1971 Madh Pra 104) a Division Bench of this Court, of which one of us (Hon. Shivdayal, J. as he then was) was a Member has observed as follows :--

'The words of Sub-sections (1) and (2) are clear and unambiguous. That being so. according to the elementary rule of interpretation of statues, 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.'

9. In my opinion, apart from the question whether the word 'proceeding' means and includes an 'appeal' or not, at least in suits referred to in Sub-section (1), meaning thereby the suits instituted by the landlord on any of the grounds referred to in Section 12 of the Act, when there being a dispute, Sub-section (2) of Section 13 of the Act is attracted, the provisional rent has to be deposited or paid by the tenant in accordance with Sub-section (1) of Section 13 till the decision of the suit or appeal. The words 'in accordance with the provisions of Sub-section (1)' as are used in Sub-section (2) of Section 13 are significant. This makes us to question as to what is 'in accordance with the provisions of Sub-section (1)' in so far as an appeal is concerned. The provisional rent having been already fixed by the trial Court, and apart from the question as to on whose appeal the payment or deposit is to be made, it is that provisional rent which is required to be deposited. This provisional rent has to be deposited till the decision of the appeal. That the provisional rent has to be deposited during an appeal is further supported by Sub-section (5) of Section 13 of the Act as this sub-section specifically makes a mention of Sub-section (2). Even in Sub-section (3) of Section 12 of the Act what is provided is that '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.........'

This also obviously includes Sub-section (2) of Section 13.

10. The next question that arises is whether it is necessary for the tenant to deposit the provisional rent during the pendency of the appeal when the landlord prefers the appeal.

11. As stated above, the deposit or the payment of the provisional rent has to be in accordance with the provisions of Sub-section (1) of Section 13 of the Act. Under Sub-section (1) the tenant is required 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. In this connection, the words 'the service of the writ of summons', as has been held in Ratanchand's case (supra), (AIR 1970 Madh Pra 1 (FB)) will be construed to mean 'notice of appeal'. If the conditions regarding payment or deposit as are mentioned in Section 13 (1) will not apply to the deposit or payment in an appeal, the provision enacted in Sub-section (5) of Section 13, in so far as it relates to Sub-section (2) of Section 13, will become nugatory. Considered in that context, the notice of appeal to the tenant would necessarily mean an appeal of the landlord. As against this, if the tenant were to prefer an appeal, then again we shall be required to look into Sub-section (1) of Section 13 because under Sub-section (2) of Section 13 the deposit or payment has to be made in accordance with Sub-section (1). Considered in that light, where will be the question of notice of appeal being served on him? In absence thereof, from what date would the period of one month be reckoned, and thus no question of seeking any further time would arise.

12. The matter could be looked at from yet another angle. A reading of Sub-section (5) of Section 13 of the Act also makes it clear that the deposit or the payment is required to be made by a tenant only in case of an appeal by the landlord. Sub-section (5) of Section 13 gives a protection to the tenant against eviction provided he deposits or pays the provisional rent till the decision of the suit or appeal in accordance with Sub-section (1) or Sub-section (2). This Sub-section (5) cannot be construed to mean that on failure of the tenant to pay or deposit the provisional rent in accordance with Sub-section (1) during the pendency of the suit, he can be protected by filing an appeal and then depositing the total amount of the provisional rent in appeal. A tenant has to make deposit or payment of the provisional rent in accordance with Sub-section (1) of Section 13 not only till the decision of the suit but also of the appeal.

13. A question was also raised whether, after the disposal of the suit from the trial Court till in the event of the landlord filing an apneal and notice of that appeal being served on the tenant, it will be incumbent on the tenant to deposit the provisional rent during this intervening period. In my opinion, this presents no difficulty and the answer to this is to be found in the section itself. The payment or deposit contemplated by Sub-section (2) of Section 13 is 'till the decision of the suit or appeal.' This obviously would mean that the deposit or payment of the provisional rent is to be made when there is an appeal. The tenant would come to know about the appeal when the notice of the appeal is served on him. On such service, the provisional rent is to be paid or deposited in accordance with Sub-section (1) of Section 13, This section nowhere provides that the tenant has to continue to deposit the rent even when there is no appeal.

14. Thus, in my opinion, in the present case, to which Sub-section (2) of Section 13 of the Act applies, the provisional rent has to be deposited or paid by the tenant in the appeal filed by the landlord in accordance with Sub-section (1) of Section 13. This conclusion is without going into the question, whether the word 'proceeding' as is used in Sub-section (2) of Section 13 means and includes an 'appeal.'

15. I may here refer to a Division Bench decision of the Gujarat High Court in Ratilal Balabhai v. Ranchhodbhai Shankerbhai, AIR 1968 Guj 172. Para 4 of the report refers to those conditions under which, if fulfilled, no decree for eviction can be passed against the tenant. One of those conditions was that the tenant must continue to pay or tender in Court regularly the standard rent and permitted increases till the suit is finally decided (underlining is mine)! In that context, it has been observed as follows:--

'Now what does the expression 'till the suit is finally decided' mean? Does it refer to the decision of the suit by the trial Court or is it intended to include the decision of the suit in appeal by the appellate Court? The word 'finally' in our view suggests that what is in the contemplation of the Legislature is not the decision of the suit by the trial Court but the ultimate decision of the suit by the appellate Court. It is trite knowledge that an appeal is a continuation of a suit and when the appeal is decided, the suit is finally disposed of by the appellate Court, The expression 'till the suit is finally decided', therefore, in our view, refers to the decision of the suit in appeal by the appellate Court. Otherwise the word 'finally' would be meaningless. When, therefore, an appeal is preferred by the landlord against a decree passed by the trial Court dismissing his suit and the question arises before the appellate Court whether the tenant is entitled to the protection of Section 12 (3) (b), the appellate Court would have to consider whether the tenant has, after paying or tendering in Court the arrears of standard rent and permitted increases on the first day of hearing of the suit or on or before such other date as might have been fixed by the Court, continued to pay or tender in Court regularly the standard rent and permitted increases till the decision of the appeal. If the tenant has done so, no decree for eviction can be passed by the appellate Court against the tenant.' (pp. 177-8).

16. Much was sought to be made out on the basis of a Division Bench judgment of the Calcutta High Court in Radharani Dassi v. Angurbala Dassi, (1963) 67 Cal WN 501. Tn that decision a question as regards Section 17 of the West Bengal Premises Tenancy Act (XII of 1956) had arisen. Section 17 of that Act has been reproduced in another decision of this very Volume which begins from page 553. No doubt, there appears to be some similarity in Section 17 (1) and (2) of that Act with Section 13 (1) of the present Act; but the decision in Radharani Dassi's case (supra) does not construe the meaning of the word 'proceeding' as is used in Section 17(1) or (2) of that Act. In Sub-section (2) of Section 17 of that Act the word 'appeal' is absent. Having gone through that decision, I am of the opinion that it does not deal with any such problem as is before us.

17. Much of the arguments were also advanced on the question as to the meaning of the words 'suit or proceeding' as have been used in S- 13 of the Act. In Vidyawati v. Fattilal, Civil Revn. No. 323 of 1963, Decided on 24-2-1964 (Madh Pra) Hon'ble Shiv Dayal, J. (as he then was) had observed as follows :--

'Much argument is advanced from both the sides on the word 'proceeding'. There is no doubt that it is an expression of wide connotation. An application to sue in forma pau-peris is certainly a 'proceeding'. But in Section 13 of the Act that word is qualified by the words 'on any of the grounds referred to in Section 12'. Now an application for leave to sue in forma pauperis has nothing to do with the grounds contained in Section 12 of the Act Therefore, the word 'proceeding' in Section 13 does not include an application for leave to sue in forma pauperis. The word 'proceeding' here will include an appeal, revision, an application for execution or any other proceeding which may be based on any of the grounds referred to in Section 12 of the Act.'

In that decision, after referring to Sub-section (6) of Section 13 it was further observed that until the application to sue in forma pauperis is allowed, the question of defence against eviction under Section 12 of the Act does not arise, so that there is nothing at that stage which can be struck out. The meaning of the words 'suit or proceeding' has been considered by their Lordships of the Full Bench in Ratanchand's case (AIR 1970 Madh Pra 1) (FB) (supra) and in the context no meaning other than that given in that case can be given to these words. This reasoning also which I respectfully adopt, answers the meaning sought to be suggested to the word 'proceeding' by the learned Judges of the Division Bench.

18. Thus, in my opinion, in this appeal by the landlord the tenant is bound to deposit the amount of the provisional rent in accordance with Sub-section (1) of Section 13 of the Act. I am further of the opinion that Ratanchand's case (supra) (AIR 1970 Madh Pra 1 (FB)) was correctly decided.

Shiv Dayal, C.J.

19. I have the benefit of perusing the opinion of my Brother Sharma, J.

20. The following questions have been referred to us for opinion :

'(1) Whether Ratanchand Firm v. Rajendra Kumar, 1969 MPLJ 672 : (AIR 1970 Madh Pra 1 (FB)) was correctly decided.

(2) In an appeal by the landlord against the dismissal of his suit for eviction under Sub-section (5) of Section 13 of the Act, is the landlord entitled to succeed if the tenant commits any default in the payment of deposit current rent during the pendency of the appeal, even though the suit was rightly dismissed, as the tenant had fully complied with the provisions of Sub-section (1) of Section 13 of the Act upto the date of dismissal of the suit?'

21. The appellants instituted a suit against the respondent for eviction under Section 12 (1) (a) of the M. P. Accommodation Control Act, 1961 (hereinafter called the Act) and for arrears of rent and damages, claiming Rs. 320/- as monthly rent. Within a month of the service of summons of the suit on him, the defendant made an application for fixation of provisional rent under Section 13 (2) of the Act. On that application, the defendant was directed to deposit rent at the rate of Rs. 320/- per month. The defendant deposited the arrears as directed by the Court. On his further application under Section 13 (5) of the Act, the trial Court dismissed the suit because the defendant had complied with the provisions of Section 13 (1) and (2). The suit was dismissed without framing the issues and without trying them.

22. The plaintiffs preferred this appeal, at the hearing of which two questions were raised by the appellants. It was first contended that the defendant did not deposit or pay rent as required by Sub-section (1) of Section 13, during the course of the suit, so that he was not entitled to the protection under Sub-section (5) of Section 13 of the Act. The second contention was that even if the defendant be held to have duly paid or deposited rent, as required by Sub-section (1) of Section 13, during the pendency of the suit, since he committed default in payment of current rent during the pendency of the appeal, he forfeited the protection under Section 13 (5). The Division Bench (Bhave and Raina, JJ.) which heard the appeal, dealt with the first question and observed as follows:--

'The finding of the trial Court is that the defendant had fully complied with the provisions of Sub-section (1) of Section 13 and as such the suit was liable to be dismissed on this account under Sub-section (5) of Section 13 of the Act.'

'Apart from the question raised by the learned counsel for the appellants in regard to the tenability of the application under Sub-section (2) of Section 13, the finding of the trial Court that the defendant had fully complied with the provisions of Sub-section (1) of Section 13 during the pendency of the suit was not questioned before us.'

'It was, however, vigorously argued that even though the suit may have been rightly dismissed, the dismissal must be set aside, because the defendant has failed to pay or deposit rent in accordance with the provisions of Sub-section (1) of Section 13 during the pendency of this appeal.'

It is thus that the Division Bench adverted to the second question. The Division Bench referred to a Full Bench decision of this Court in Ratanchand Firm v. Rajendra Kumar, AIR 1970 Madh Pra 1 : 1969 MPLJ 672 : 1969 Jab LJ 859 (FB) and discussed it in detail. It appears that since the Division Bench did not find itself in agreement with the view taken by that Full Bench, it referred the matter for reconsideration by a larger Bench.

23. The question before us is whether in an appeal by the landlord from the dismissal of his suit (on any of the grounds under Section 12 of the Act), Section 13 requires the tenant to deposit rent in the appellate Court. The question has been referred in relation to the dismissal of a suit under Section 13 (5) of the Act. But the answer has to be the same if the appeal is by the landlord from the dismissal of his suit on any ground provided the suit was based on any of the grounds contained in Section 12 of the Act. This is because Sub-section (1) of Section 13 applies to such suits uniformly and the provisions of Section 13 are not different for an appeal by landlord when his suit has been dismissed under Section 13 (5) of the Act.

24. The Full Bench in Ratanchand Firm v. Rajendra Kumar, (ATR 1970 Madh Pra 1) (FB) (supra) answered this question in the affirmative by holding that the words 'suit or proceeding' in the opening part of Section 13 (1) mean 'suit or appeal.'

25. I would approach this question as follows:

(i) Whether on its plain meaning Sub-section (1) of Section 13 applies to any appeal (be it by the landlord or by the tenant)?

(ii) What is the implication of the word 'appeal' in Sub-section (2) of Section 13?

(iii) Whether it is necessary to give an artificial meaning to the word 'proceeding' in Sub-section (1) of Section 13?

(iv) Why the word 'proceeding' is there in the opening part of Section 13 (1) of the Act?

26. A few provisions may now be reproduced for ready reference:--

'12(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;

XX XX XX XX(g) that the accommodation has become unsafe, or unfit for human habitation and is required bona fide by the landlord for carrying out repairs which cannot be carried out without the accommodation being vacated :

(h) that the accommodation is required bona fide by the landlord for the purpose of building or rebnflding or making thereto any substantial additions or alterations and that such building or rebuilding or alteration cannot be carried out without the accommodation being vacated;

XX XX XX XX 13 (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 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 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-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 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 he 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 him to be struck out and shall proceed with the hearing of the suit.'

27. The word 'appeal' is not to be seen in Sub-section (1) of Section 13 of the Act. This is conspicuous and significant. It is plain enough from these provisions that the Legislature has distinctly employed in them three words: 'suit', 'appeal' and 'proceeding'. These words are very common in legal parlance. The words 'suit' and 'appeal' are always used distinctively in Legislative enactments as distinguished from any other 'proceeding'. It must be presumed that they were fully known to the Legislature when this Act was drafted. It cannot, therefore, be believed that the framers of the Law used the word 'proceeding' when they intended to mean 'appeal'. The learned counsel for the appellants could not tell us any reason whatever why the framers of the law did not employ the expression 'suit or appeal.'

28. In Diwan Bros. v. Central Bank of India, Bombay, (1976) 3 SCC 800 : (AIR 1976 SC 1503), thefr Lordships have reiterated the well-settled principle in these words :

'It is a well-settled principle of interpretation of statutes that where the legislature uses an expression bearing a well-known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood .....................'

Craies on Statute Law observes as follows :--

'There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is Used in the sense in which it has been judicially interpreted unless a contrary intention appears.

Craies further points out that the rule as to words judicially interpreted applies also to words with well-known legal meanings, though they have not been the subject of judicial interpretation............'

The question before their Lordships was as to the interpretation of the word 'decree'. It was observed that 'applying these principles in the instant case it would appear that when the Court-fees Act uses the word 'decree' which had a well-known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if their has been no express judicial interpretation on this point.'

29. It is a cardinal rule o construction ot Statutes that the intention of an enactment must be gathered from the language employed by it. It is the duty of the Court to give effect to the words according to their plain meaning, neither adding to nor subtracting from them. It is not permissible to travel outside the words used in a statute to discover any secret intention not expressed therein. In Salomon v. A. Salomon and Co., 1897 AC 22, Lord Watson observed that the intention of the Legislature 'is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact.' In R. v. Wimbledon Justices, (1953) 1 QB 380, Lord Goddard said :--

'Although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the mischief aimed at, it cannot add words to a Statute or read words into it which are not there.' In R. v. Mansel Jones, (1889) 23 QBD 29, Lord Coleridge said that it was the business of the Courts to see what the Legislature had said, instead of reading into an Act what ought to have been said. In Lathem v. Lafone, (1867) 2 Ex 115 (121) Martin B said :-- 'I think the proper rule for construing this statute is to adhere to its words strictly : and it is my strong belief that, by reasoning on long drawn inference and remote consequences, the Courts have pronounced many judgments affecting debts and actions in a manner that the persons who originated and prepared the Act never dreamed of.'

In State of Assam v. D. P. Barua, AIR 1969 SC 831, their Lordships said:

'According to the ordinary canons of interpretation the word employed must be given their proper and plain meaning.'

In Amalgamated Electricity Co. v. Ajmer Municipality, AIR 1969 SC 227 it was observed :

'The intention of a Legislature or its delegate has to be gathered from the language of the statutory provisions and not from what it failed to say............'

30. The word 'appeal' is so familiar to allconcerned with law that it cannot be read soias to be included in the expression 'suit or proceeding.' This is more so as in the same section, the three words are distinctly used, 'suit','appeal' and 'proceeding'. To defend an appeal is a well recognised inherent right of therespondent, who has been successful in thelower Court. If a condition or restriction isto be imposed on that right, the language ofthe law must be express and unambiguous.Craies observes :--

'Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes; Imposing tax or charge; conferring or taking away legal rights, whether public or private; excepting from the operation of or altering clearly established principles of law; altering the jurisdiction of Courts of law.'

31. The function of the Court is to see what the law is and not to re-write the law in the garb of interpretation according to its whim.

32. In Ratanchand Firm v. Rajendra Kumar (AIR 1970 Madh Pra 1) (FB) (supra) the Full Bench considered three constructions of the section. They first considered whether an appeal is included in the word 'suit' on the ground that appeal is continuation of a suit. This was rejected with the observation that the legislature could not have intended to include 'appeal' within the word 'suit'. The second construction which was considered by the Full Bench was that an appeal is neither a suit nor proceeding and is, therefore, not at all included within Sub-section (1), so that a tenant is not bound to deposit any rent in appeal, whether the appeal is by the landlord or by the tenant. The Full Bench found it difficult to accept this 'extreme contention' because of the word 'appeal' used in Sub-section (2). The Full Bench then considered the third construction that an appeal is a proceeding and found it to be 'a middle course' and 'most acceptable'. I shall deal with this point when I shall presently consider the implications of the word 'appeal' in Sub-section (2).

33. Pausing here for a moment, let it be seen whether by giving an unartificial or forced interpretation to it, Sub-section (1) of Section 13 should be applied to appeals. The Accommodation Control Act, 1961, has for its object to regulate eviction of tenants from accommodation. Chapter III was enacted with that object of which Section 12 is the pivot. A tenant is protected from eviction except on such grounds as render eviction necessary. Restrictions are imposed on the rights of the landlord to evict the tenant. Section 12 does not confer any new benefit to the landlord, nor enlarge his rights under the general law. Section 12 furnishes to the tenant a new defence. The object of Section 13 is to put a check on the tendency of an unscrupulous tenant to protract litigation without payment of rent. The first part of Sub-section (1) of this section requires the tenant to pay or deposit all arrears of rent within one month of the service of the writ of summons on him, or within such further time as the Court may, on the tenant's application allow him. The second part requires the tenant to go on depositing rent, month by month, by the 15th day of each succeeding month. This section does not require any deposit to be made in 'appeal' or 'till the decision of appeal.' The word 'appeal' is not to be found in this sub-section at all. Sub-section (2) envisages a case where there is a dispute between the landlord land tenant about the amount of rent payable by the latter. As soon as such dispute is raised, the Court must fix a 'reasonable provisional rent' to be deposited or paid under Sub-section (1). Sub-section (3) contemplates a case where the dispute is as to the person or persons to whom rent is payable. In that case, the Court may direct the tenant to deposit with the Court the amount of rent payable by him under Sub-section (1) or Sub-section (2). But no one shall be entitled to claim the amount until the Court decides the dispute and makes an order for its payment. Section 12 (3) and Section 13 (5), each, affords protection to the tenant that no decree or order shall be made against him for ejectment on the ground of default under Section 12 (1) (a). Sub-section (6) of Section 13 empowers the Court to strike out the defence, if the tenant does not deposit rent as required by Section 13 (1).

34. It must, therefore, be concluded that Section 13 (1) contemplates a suit instituted in the original stage only, as is clear from the provisions of Section 12 (1) of the Act. Read in this manner, there is no anomaly, no absurdity no inequity. The whole object and purpose of Section 13 is that an unwary tenant may not protract litigation without paying rent. This is because until the suit is decided, it is not known whether the plaintiff is right or the defendant is right; whether the plaintiff has brought a false suit to harass the tenant, or whether the tenant is falsely defending a suit to delay the plaintiff's claim. Therefore, as pointed out at the outset, one of the basic policy underlying this law is that the tenant should not be allowed to contest a suit without depositing rent. The object is satisfied when Section 13 is read in relation to a suit.

35. The Legislature did not mean to include an 'appeal' in the word 'proceeding' because it was not necessary as may be explained thus: If the appeal is by the tenant, in spite of that appeal, the landlord can apply for execution of his decree for eviction and obtain possession. However, in case the tenant applies for stay of the decree for eviction, the appellate Court can put him to terms and thus require him to go on depositing rent until the decision of the appeal as a condition for the operation of the stay order. If the tenant does not fulfil that condition, the stay order pets dissolved and the landlord can obtain possession. It is now to be considered whether the object and purpose underlying Section 13 apply to an appeal by landlord. The answer must be in the negative. The plaintiff's suit having been dismissed, the enquiry shifts in favour of the landlord (sic tenant?). But, if the word 'proceeding' in Section 13 (1) means an 'appeal', the tenant will have to deposit rent in both these cases as well, when there is no justification for such compulsion.

36. It is quite clear from the provisions contained in Section 13 that it does not provide a new machinery for recovery of rent as an alternative to the ordinary remedy, that is, a suit for recovery of rent.

37. If the framers of the 1961 Act intended to apply the provisions of Section 13 (1), could they not use the word 'appeal' after the word 'suit' and before the words 'or proceeding'? Could it be presumed by any stretch of imagination that they carelessly omitted the word 'appeal' in Section 13 (1)? Will it at all be reasonable to presume that the framers of the law would mention the word 'appeal' in Sub-section (2) of Section 13 with the object or intention that that word may, on that basis, be read as included in the word 'proceeding' in Sub-section (1)? It is the language of the section which has to be given effect to. It is not for the Court to re-write the law according to its liking. The Court has to say what the law is, and not what the law should be. Unless a clear case or absurdity is made out, it is not permissible under the well established canons of interpretation of statutes to give a forced and unnatural meaning to the word 'proceeding'.

38. With due respect to the referring Judges, it must be said that they were not right in their opinion that Section 13 (1) applies to an appeal by the tenant.

39. The object of Sub-section (2) is abundantly clear. When there is a dispute as to the amount of rent payable by the tenant, an issue will be framed and will be decided in the final judgment of the suit. But since Sub-section (1) requires payment or deposit of rent during the pendency of the suit, question arises at what rate should the tenant deposit rent. Should he deposit at the rate claimed by the plaintiff or the rate as alleged by defendant? To solve this difficulty Sub-section (2) was enacted. It requires the Court to fix a 'reasonable provisional rent,' and it is at that rate that the tenant will deposit, and go on depositing rent in compliance with the requirements of Section 13, until the disposal of the suit. The rent so fixed has to be 'reasonable', but at the same time it is only 'provisional'. It is provisional because as soon as the suit is decided the dispute as to the amount of rent 'payable by the tenant' becomes finally resolved in the judgment of the suit. In several decisions of this Court, therefore, it has been held that provisional rent is to be fixed on a summary enquiry, for instance, from the receipts which the tenant may produce or from the rent note which the landlord may produce or such other documents.

40. It is obvious enough that such fixation of provisional rent is only to fulfil the above necessity and is for the period intervening the raising of the dispute and the decision of the issue in the suit. When there is such a dispute, there is bound to be an issue and that issue is bound to be determined in the final judgment of the suit. Therefore, this provisional rent operates only during the pendency of the suit and until the decision of the issue. But once such decision has been rendered in the judgment in the suit and the decision is on merits, on the basis of the evidence of the parties, the provisional rent is superseded. Therefore, if the law intended to provide for deposit of rent in the appellate Court, it cannot be the 'provisional' rent. It is bound to be that rent which has been determined in the suit.

41. It is mark-worthy that in the opening words of Sub-section (2) 'appeal' being not there, in the closing part of this sub-section the word 'appeal' is meaningless.

42. Clue is available how the word 'appeal' crept into Sub-section (2). Under the Madhya Bharat Accommodation Control Act, 1955 (which eventually became the Madhya Pradesh Accommodation Control Act, 1955). Section 4 enacted restriction on eviction (corresponding to Section 12 of the present Act). Then, Section 5 of that Act read thus :--

'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 the case of appeal, on the 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 nf 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 OF 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.' It is clearly seen that Section 5 of the Madhya Bharat Act, under which the tenant was required to deposit rent, had the following significant requisites :--

(i) It was when an order was passed by the Court requiring the tenant to deposit rent, that he became liable to deposit rent.

(ii) The Court could make an order on request of the landlord.

(iii) Such request could be made by the land-lord in a suit filed on any of the grounds mentioned in Section 4 or 'in the case of appeal, on appeal being preferred.'

(iv) The Court could order to deposit rent which was payable according to the terms of the agreement; and if rent had not already been agreed upon, then, the Court had to 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.

43. It can be clearly seen that the word 'appeal' in the expression 'till the decision of the suit or appeal' in Section 5 of the 1955 Act has definite meaning, because on an appeal being preferred, whether by the landlord or by the tenant, the Court had to make an order on the request of the landlord to fix (in the absence of an agreement) a 'reasonable provisional rent', and to order the tenant to deposit such rent 'till the decision of the suit or appeal.' Now Section 5 of the 1955 Act clearly contemplated such an order to be made either in the suit or in the appeal. It is evident that Section 5 of the 1955 Act was necessarily before those who drafted Section 13 of the present Act and it was from Section 5 that the expression 'till the decision of the suit or appeal' employed in that section crept in inadvertently in Section 13 (2), although the whole of Section 5 was not copied out in the new Act, obviously, because the framers of the Act desired to impose a statutory liability on the tenant to deposit rent without requiring an order of the Court to be necessary. In this process they forgot that the word 'appeal' in the existing Section 13 (2) would be meaningless, when the existing section was not providing for any such order to be made on the request of the landlord 'on the appeal being preferred.'

44. Furthermore, if the intention of Sub-section (2) was that provisional rent fixed in the trial court in the suit should continue to be paid till the decision of the appeal also the expression would have beer) 'till the decision of the suit and appeal.' The word 'or' is disjunctive here. It was appropriately used in Section 5 of the 1955 Act, but is misfit in Section 13 (2) of the present Act. Under the 1955 Act, the landlord had to seek an order of the Court in the suit and also a fresh order during the appeal.

45. Now from two other angles it can be easily demonstrated that the word 'appeal' in Sub-section (2) is without meaning :--

(i) This Sub-section (2) applies only when there is a dispute as to the amount of rent, but what about the cases (and they will be innumerable) in which no such dispute is raised? Sub-section (2) will then not apply, for an appeal arising from a suit in which, any dispute as to the amount of rent was raised and an appeal from another suit in which no such dispute was raised. This will mean that where the tenant had not raised a dispute, he is not to deposit tent in the appellate Court, but if he had raised such dispute then he has to. This position will be anomalous and cannot be accepted.

(ii) Section 13 (1) applies to all suits instituted by the landlord on any of the grounds contained in the clauses from (a) to (p), and not merely in Clause (a). If, for instance, the plaintiff's suit, on the ground contained in Clause (g) or (h), is dismissed, it does not stand to reason why tlie tenant should be obliged to deposit rent in the appellate Court.

46. In the present context, cases may be categorised into three: (1) When a decree for ejectment is passed against a tenant: (2) When the landlord's suit is dismissed because of the special protection contained in Section 12 (b); and (3) When the suit for eviction is dismissed because no ground as required in Sub-sections (a) to (p) has been proved. In case (1) the landlord can execute his decree and obtain possession. If the tenant seeks stay from the appellate Court, he can be put to terms and can thus be required to deposit rent during the pendency of the appeal. In case No. (2), the tenant is automatically required to go on paying rent directly to the landlord. He can at the most commit two consecutive defaults, but he cannot afford to commit the third default: otherwise, he can be readily evicted, inasmuch as the protection under Section 12 (3) will not then be available. It is made available only once. In case No. (3), there is no equity in favour of the landlord, for which the tenant should be compelled to deposit rent during the pendency of the landlord's appeal, and then be is subjected to a great risk of his defence being struck out in case of a single default. He has to presume and anticipate that an appeal may be preferred against him, so that he must find out the appellate Court, where the landlord might prefer an appeal against him and go on depositing rent from the very next month of the date of the decree, because the words 'till the decision of appeal' connote a continuity and no break, as between the date of notice of appeal. If he commits a single default he loses the protection under Section 12 (3). See Jagdish Kapoor v. New Education Society, 1967 Jab LJ 859 : (AIR 1968 Madh Pra 1) (FB).

47. In Ganesh Ram Harvilas v. Ramchandra Rao, 1970 MPLJ 902 : (AIR 1971 Madh Pra 104) the Division Bench did not say anything different. I have again carefully gone through that decision. It is wholly in accord with what I have said just now.

48. It was faintly argued that if the tenant is required to pay rent in appeal, he does not stand to lose anything because, after all, it is his liability to pay rent every month. This argument must be rejected at least for two reasons. Firstly, as said above. Section 13 is not a statutory machinery for the recovery of rent. It is a restriction which has to be strictly construed. Secondly, the restriction is stringent, a single default takes away his right under Section 12 (3) or 13 (5) of the Act and also makes his defence liable to be struck out under Section 13 (6).

49. Sub-section (5)-- There can be no manner of doubt that Sub-section (5) comes into play only at the time of the final decision of the suit in the Hal Court. It is to be applied when all the issues in the suit are decided and the Court is going to pass a decree for eviction. It is only at that point of time that Sub-section (5) steps in. The same is about Section 12 (3) of the Act. See Chitrakumar Tiwari v. Gangaram, 1966 Jab LJ 1028. There is nothing in Sub-section (5) to apply it to appeals.

50. Sub-section (6)-- The language of Sub-section (6) also supports the conclusion that the sub-section applies only to suits. This subsection enacts the consequences of non-compliance with the foregoing clauses of the section in which case the Court may order the defence against eviction to be struck out, but thereafter the Court must proceed with the hearing of the 'suit'. It would be stretching the language too far to say that the expression 'hearing of the suit' means hearing of the suit in the trial Court or in the appellate Court. In common legal parlance, when an appeal arising from a suit is heard, it is not said that the hearing is of the 'suit.'

51. The above discussion leads to the conclusion that Section 13. as a whole, applies to suits only. Any cloud cast by the word 'appeal' in Sub-section (2) vanishes, when the sub-section is closely scrutinised and analysed, and also when it is examined in correlation with other sub-sections. Clue is also available that the word 'appeal' crept into Sub-section (2) evidently because of careless spade work in the process of drafting the sub-section from Section 5 of the Madhya Bharat Accommodation Control Act, 1955 (which eventually became the M. P. Accommodation Control Act, 1955).

52. It is clear from the discussion in Ratan-chand Firm v. Rajendra Kumar, (AIR 1970 Madh Pra 1) (FB) (supra) that tor including 'appeal' within the word 'proceeding', a great effort had to be made and the interpretation given is laboured. In common legal parlance, the word 'institute' is used for a suit; so also writ of summons. They had to be read as 'appeal preferred' and 'notice of appeal' respectively. But I do not see what hardship will be caused to the landlord for which all such efforts had to be made. A word of such common parlance as 'appeal' having been omitted in Section 13 (1), there is no necessity to re-write the law in the garb of interpretation. A little later, I shall mention how the word 'proceeding' appears to have crept in.

53. With reference to the words 'in accordance with the provisions of Sub-section (1)', as are used in Sub-section (2) of Section 13, a question is posed as to what it means in so far as an appeal is concerned, with due respect this would be to beg the question; so also, when it is contemplated that Section 13 (5) applies to an appeal also.

54. As regards Ratilal v. Ranchhodbhai, AIR 1968 Guj 172 suffice to say that under thai law the requirement is of depositing standard rent which is quite different from provisional rent under Section 13 (2) of our Act. Moreover, stress was laid in that decision on the word 'finally'. Furthermore, the reason for that decision is that an appeal is a continuation of a suit, which was rejected in Ratanchand's case.

55. My learned brother Sharma, J, makes it clear in paragraph 14 of his opinion that the view which he has formed is 'without going into the question whether the word 'proceeding' as used in Sub-section (2) of Section 13 means and includes an 'appeal'. Obviously, there is unsurmountable difficulty, which may be demonstrated as below:

(a) If the word 'proceeding' in Sub-section (2) means a 'proceeding other than a suit or appeal' (which is the natural meaning), then firstly, there being no proceeding contemplated in Section 12 other than a suit, the word 'proceeding' become meaningless. Secondly, in the closing words 'till the decision of suit or appeal', the word 'proceeding' does not find a place which omission reflects back on the word 'proceeding' in the opening words of the subsection. If the dispute is raised in a 'proceeding' (other than a suit) then the sub-section should have provided for the deposit of the rent 'till the decision of the proceeding', but loose words are not there.

(b) If the word 'proceeding' in Sub-section (2) means 'appeal', then it contemplates a dispute to be raised in the appeal for the first time, that is, a dispute which was not raised in the suit. If the dispute had already been raised jn the suit, there is no question of its being raised again in the appeal ('proceeding'). Therefore, if the word 'proceeding' has to be read as meaning 'appeal', then the sub-section can be reconciled by contemplating a dispute which is raised for the first time in appeal. The Appellate Court will then fix a reasonable rent to be deposited or paid till the decision of the appeal. But, then the words 'in accordance with the provisions of Sub-section (1)' become redundant. The word 'appeal' is not used by the Legislature in India to mean either a 'suit' or original proceedings 'other than a suit'.

(c) If the word 'proceeding' is redundant and it was intended (as held by Sharma, J.) that 'if & dispute is raised in the suit the tenant has to go on depositing rent not only till the decision of the suit but also in an appeal arising from the suit', then the closing words would have been 'suit and appeal'. The existing word 'or' in the words 'suit or appeal' is disjunctive. Furthermore, as already pointed out, thid interpretation would result in two sets of rules. If a dispute is raised the tenant has to deposit rent in the suit and appeal, but if no such dispute is raised, then the tenant has not to deposit the rent in the appellate Court because then Sub-section (2) does not apply and Sub-section (1) does not provide for depositing rent in the appellate Court.

56. Thus, examined from any angle, lit must be said that the words 'or proceeding' in Sub-section (2) are redundant and meaningless and so also the words 'or appeal' are without meaning. From what I have already pointed out it appears to me that the word 'appeal' in Sub-section (2) has crept in inadvertently in the process of drafting of these sub-sections, from the M. P. Accommodation Control Act, 1955.

57. Presumably, the words 'suit or proceeding' inadvertently crept in both in Sub-sections (1) and (2) from another enactment such as Sections 13 and 17 of the West Bengal Act, unmindful of the fact that under those enactments, a proceeding refers to an original proceeding, which may be instituted under the Act for securing eviction of the tenant. Some of the provisions of the West Bengal Premises Tenancy Act may be reproduced:--

'Chapter III.-- Suits, and proceedings for eviction.

13. Protection of tenant against eviction.-- (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely......

(6) Notwithstanding anything In any other law for the time being in force, no suit or proceeding for the recovery......

17 (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of Sub-section (2), 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 ior 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 together with interest on such amount calculated at the rate of eight and one-third per cent, per annum from the date when any such amount was payable up to the date of deposit, 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 tenant shall, within the time specified in Sub-section (1), deposit in Court the amount admitted by him to be due from him together with an application to the court for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of such application, the Court shall--

(a) having regard to the rate at which rent was last paid, ,and the period for which default may have been made by the tenant, make as soon as possible within a period not exceeding one year, a preliminary order, pending final decision of the dispute, specifying the amount, if any, due from the tenant shall, within one month of the date of such preliminary order, deposit in Court or pay to the landlord the amount so specified in the preliminary order; and

(b) having regard to the provisions of this Act, make, as soon after the preliminary order as possible, a final order determining the rate of rent and the amount to be deposited in court or paid to the landlord and either fixing the time within which the amount shall be deposited or paid, or, as the case may be, directing that the amount already deposited or paid be adjusted in such manner and within such time as may be specified in the order.

(3) If a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2), the court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

(4) If a tenant makes deposit or payment as required by Sub-section (1) or Sub-section (2), no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord;

Provided that a tenant shall not be entitled to any relief under this subsection if he has made default in payment of rent for four months within a period of twelve months.'

58. Another example of such inadvertent drafting is to be found in Sub-section (2) of Section 26 of the M. P. Act. The scheme of Chapter IV is that the tenant is required to pay rent and it is his right to get a receipt from the landlord or his authorised agent, the default of which is punishable. If a receipt is not given, a penalty is provided (S. 24). If the landlord does not accept the rent tendered by the tenant, Section 25 enables him to deposit it with the rent controlling authority. Then comes Section 26. The first subsection fixes the time within which rent has to be deposited; otherwise, rent is not considered to have been validly deposited under Section 25. Then, Sub-section (2) also provides that no such deposit shall be considered to have been validly made, if the tenant wilfully makes any false statement in his application for depositing the rent, unless the landlord has withdrawn the amount deposited. But the words 'before the date of filing an application for the recovery of possession' are inept and inapplicable. The words should have been 'before the date of filing of suit for possession'. This mistake again has crept in while copying out the section from the Delhi Act. There, the Rent Controlling Authority has the jurisdiction to deal with the matters, but under the M. P. Act the forum has been changed and jurisdiction has been given to the civil Court. Under Section 14 of the Delhi Act, application has to be filed for the recovery of possession and, therefore, these words are appropriate and have a meaning in Section 28 (2) of that Act; but under the M. P. Act, under Section 12, a suit has to be instituted in the civil Court, so that these words in Section 26 (2) are meaningless.

59. Yet another conspicuous reason why the Legislature did not apply the provisions of Section 13 to an appeal is that what is to be seen in appeal is whether the decree of the trial Court was correct or erroneous. It has reference to the rights of the parties on the date of the decision appealed from. If the Legislature intended otherwise, then an express and unambiguous language would be required. Valuable protection earned under Section 12 (3) cannot be forfeited merely by non-payment of rent in the appellate Court.

60. The above discussion may be summed up thus:--

(i) To defend the landlord's appeal from the dismissal of his suit is a very valuable right. It cannot be taken away or curtailed except by law in express and unambiguous language. Requirements of Sub-section (1) of Section 13 impose conditions or restrictions on such right.

(ii) The word 'appeal' is not seen in Section 13 (1). If the Legislature had intended to apply it to 'appeal' it would have employed that word in the sub-section. There is 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 Sub-sections (1) and (2).

(iii) As only a 'suit' is contemplated for eviction of the tenant on any of the grounds contained in Section 12 (1), the word 'proceeding' (as distinct from a suit) is without meaning in Sub-sections (1) and (2) of Section 13.

(iv) The 'reasonable rent' fixed under Sub-section (2) is merely 'provisional'. It gets dissolved and merged into the decision of the relevant issue in the final decision of the suit. Thereafter the rent if it is to be paid or deposited by the tenant, would be that rent which has been finally determined in the suit. Therefore, it would have been absurd if Sub-section (2) had required deposit of 'provisional' rent (in appellate Court) after the final judgment of the trial Court. Thus the word 'appeal' in the closing part of Sub-section (2) is otiose.

(v) When in the opening words of Sub-section (2) the word 'appeal' is not there, no question arises of payment or deposit of rent 'until the decision of the appeal'. Therefore, 'appeal' in the closing words of Sub-section (2) is without meaning.

(vi) The word 'appeal' in Sub-section (2) is the sheet anchor of the appellant, but that word is misfit in the closing expression, when in the opening words, 'appeal' is not to be seen.

(vii) The very language of Sub-section (6) shows that it applies to suits only; particularly the closing words are clinching. There is no justification for reading the words 'hearing of the suit in the appellate Court', which expression would be unnatural in legal parlance. Viewed in this light, there is no consequence of non-deposit of rent in appellate Court.

(viii) Section 13 must be read as a whole. When so read, it clearly applies to suits only. Any cloud cast by the word 'appeal' in the Sub-section (2) vanishes when it is closely scrutinised and analysed in relation to other sub-sections.

(ix) In tenant's appeal, application of Section 13 is unnecessary because the landlord can execute the. decree and recover rent, and if, stay is sought, condition of payment of rent can be imposed. In case of 1 andlord's appeal against dismissal under Section 13 (5) the tenant will automatically deposit, and go on depositing, rent because of the deterrent in Section 12 (3). In landlord's appeal from dismissal on other ground, there is no special equity in his favour. In case of non-payment of rent his ordinary remedy of a suit for recovery of rent is available to him.

(x) It is apparent that in Ratan Chand Firm v. Rajendra Kumar (AIR 1970 Madh Pra 1) (FB) (supra), a great deal of effort had to be made to hold that the word 'proceeding' in Sub-section (1) includes 'appeal' (rather mean 'appeal', inasmuch as there is no other proceeding contemplated on any of the grounds contained in Section 12). In that case the expression 'instituted' had to be read as 'preferred' in relation to an appeal; and, the expression 'writ of summons', had to be read as 'notice of appeal'; and expression 'hearing of suit' had to be read as 'hearing of suit in appeal'; I do not see any necessity for forcefully introducing 'appeal' in Section 13 by such process.

It is wholly unnecessary to enter into a laboured interpretation because, as demonstrated above, no injustice or hardship to the landlord is made out. It is wholly unnecessary to stretch the words and, by giving them an unusual meaning, to rewrite the law according to the liking of the Court. Therefore, having regard to the common and natural use of the word 'appeal' as used in distinction to 'suit' or 'proceeding', the word 'proceeding' cannot be read as 'appeal'.

(xi) Section 13 is not a machinery for realisation of rent as an alternative to a, suit for recovery of rent. The object of Section 13 is to put a check on the unscrupulous tenant who would protract litigation without payment of rent. That purpose is served in the suit. But the enquiry is reversed when the suit is dismissed.

(xii) Evidently, the closing word 'appeal' in the expression 'suit or appeal' crept into Sub-section (2) from Section 5 of the Madhya Bharat Accommodation Control Act (which eventually became the Madhya Pradesh Accommodation Control Act, 1955). But, in that Section 5 the words 'or appeal' after the word 'suit' had a meaning; whereas in Section 13 (2) of the present Act they have none. So also clues are available which reveal how the word 'proceeding' appears to have inadvertently entered into sections (1) and (2) from other enactments. (For instance, Sections 13 and 17 of the West Bengal Act). But, there the word 'proceeding' has a meaning.

(xiii) If the words 'till the decision of the appeal' in Sub-section (2) are literally construed, the tenant will have to go on depositing rent even after the dismissal of the suit by speculating that the landlord may prefer an appeal. He cannot wait till service of the notice of appeal, because there has to be continuity, and any break may disentitle him to the protection under Section 12 (3) [or Section 13 (5)].

(xiv) Even if there be a remotest doubt, the Court should lean to a construction which will advance remady and will not impose restriction on valuable rights of the defendant.

61. My learned brother Sharma J. has referred to Vidyawati v. Fattelal, Civil Revn. No. 323 of 1963 decided on 24-2-1964 (Madh Pra), in which the question which came up for consideration was whether an application to sue in forma pauperis is a 'proceeding' within the meaning of Section 13 (1) of the Act. I held that it was not; because in Section 13 of the Act that word is qualified by the words 'on any of the grounds referred to in Section 12', and since an application for leave to sue in forma pauperis is not based on any ground contained in Section 12 of the Act, the word 'proceeding' in Section 13 does not include an application for leave to sue in forma pauperis. Thus, the further observations that a proceeding may include appeal, revision an application for execution or any other proceeding, was obiter. No such question was involved in that revision for decision. I must now say that for the reasons I have stated in this opinion I have not the slightest doubt that that obiter observation was not correct and it cannot be perpetuated.

62. In the present case, the trial Court before the stage of framing of issues and recording of evidence, dismissed the suit on the application of the tenant on the ground that he had deposited all rent. Prima facie, this was premature. As said above, Sub-section (5) of Section 13 comes into play only at the stage of the final decision of the suit and at that point of time when the Court is about to pass a decree for eviction, as a result of the decision on all the issues arising in the suit. But the peculiarity of this case is that the trial Court had fixed the same rent as provisional rent which was claimed by the landlord, i.e. at Rs. 320 per month. It was the tenant himself who did not want to pursue the issue when he sought dismissal of the suit just because of having deposited the rent. In other words, he abandoned the issue and, therefore, framing of issues and a trial on them became unnecessary. If that had not been the position and the trial Judge had dismissed the suit at any interlocutory state, then, on the landlord's appeal, the dismissal would have been set aside on that ground (but not on the ground of non-deposit of rent). However, since we are called upon to answer only two questions which are pure questions of law, it must be left to the appropriate Bench which will decide the appeal to consider this question finally and dispose of the appeal on merits as it thinks fit,

63. In the result, I answer the questions referred to this Bench thus:--

(1) Section 13 of the M. P. Accommodation Control Act, 1961, and no part of that section, applies to an appeal (whether the appeal be by the tenant or by the landlord).

(2) Ratanchand Firm v. Rajendra Kumar, 1969 MPLJ 672 : (AIR 1970 Madh Pra 1) (FB) did not lay down correct law.


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