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Jivrambhai and anr. Vs. Amarsingh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 719 of 1971
Judge
Reported inAIR1973MP165; 1972MPLJ785
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(3), 13(2) and 13(6)
AppellantJivrambhai and anr.
RespondentAmarsingh
Appellant AdvocateK.P. Munshi, Adv.
Respondent AdvocateR.S. Dabir and ;K.M. Agarwal, Advs.
DispositionRevision allowed
Cases Referred and Jagdish Kapoor v. New Education Society
Excerpt:
- - before us stress was laid on provisions contained in section 7 (1) and section 6 (1) of the present accommodation control act of 1961. (b) in the meanwhile, on 31-10-1968 the plaintiff bad made an application under section 13 (6) of the act for directing the defendants to deposit all arrears of rent and alternatively, to strike out his defence. (iii) there was no good ground for not complying with the order dated 5-9-1969. in the result, he struck out the defence under section 13 (6) of the act. the order of the trial court will deprive the petitioners from defending the suit effectively. 1970 mp lj 902 =(air1971 madh pra 104). he, therefore, recommended the revision to be heard by a larger bench......which accrued due after 23-11-1968, by instalments of rs. 400/- per month, along with the current rent due after 6-10-1969. on a careful perusal of the entire order we find that the attention of the trial court was fixed merely to the plaintiff's application under section 13 (1) (6). the trial court did not at all apply its mind to the question of fixation of provisional rent within the meaning of section 13 (2). if it had it would have asked the parties to satisfy it prima facie about it and particularly regarding the alleged order of the rent controlling authority passed in 1954, fixing rs. 200/- as fair rent within the meaning of the c. p. and berar letting of houses and rent control order, 1949. the court would have believed it or disbelieved it. and if believed, it would have.....
Judgment:

Shiv Dayal, J.

1. This revision is from an order passed by the First Additional District Judge, Raipur. striking out the defence under Section 13 (6) of the M. P. Accommodation Control Act, 1961, (hereinafter called the Act).

2. Facts material for this revision are these:

(a) The suit from which this revision arises was instituted on 3-9-1968 by the respondent against the petitioners, for ejectment and recovery of arrears of rent (Civil Suit No. 10-A of 1969). In this suit, the plaintiff claimed Rs. 1,600/- as arrears of rent from June 1, 1968 to July 31, 1968 at the date of Rs. 800/- per month. The grounds of ejectment under Section 12 of the Act were more than one including the ground under Section 12 (1) (a) on the averment that the defendants did not pay arrears of rent within the statutory period after receipt of the demand notice from the plaintiff. On 23-9-1968 the writ of summons was served on the defendants. On 15-10-1968, they applied for time to file written statement, which was granted by the Court. On 23-11-1968 a written statement was filed, in which the suit was resisted, inter alia, on the ground that by an order dated 3-4-1954 the Rent Controlling Authorities had fixed Rs. 200/- per month as the fair rent of the suit premises. Before us stress was laid on provisions contained in Section 7 (1) and Section 6 (1) of the present Accommodation Control Act of 1961.

(b) In the meanwhile, on 31-10-1968 the plaintiff bad made an application under Section 13 (6) of the Act for directing the defendants to deposit all arrears of rent and alternatively, to strike out his defence. It may be noted that by this time, no written statement had been filed so that there was no question of striking out the defence on that date. This applicationremained pending. On 1-2-1969, the defendants filed their reply to the plaintiff's application under Section 13 (6). On 5-9-1969, the trial Court passed the following order :--

'It is, therefore, ordered that the defendants shall deposit the arrears of Rs. 1600/- and the arrears at the same rate till the filing of the written statement within a month from today. For the time spent after the institution of the suit he would continue depositing the rent of the current month on the 15th of each succeeding month and he shall also along with that deposit Rupees 400/- towards the arrears and go on depositing till the decision of the suit by the 15th of every month. The arrears of Rs. 1600/- ,and those till the filing of the written statement shall be deposited on or before the 6th October and then continue to deposit the rent and Rs. 400/- from the arrears from 15th November, 1969 onwards.' It is obvious enough that this order was passed by the trial Court on the first part of the plaintiff's application dated 31-10-1968, and since it gave the defendants time to deposit the arrears of rent, the alternative prayer of the plaintiff for striking out the defence stood rejected.

(c) On 31-1-1970, the plaintiff filed another application under Section 13 (6) of the Act, alleging that the defendants did not comply with the order dated 5-9-1969. By this time the defendants had deposited Rs. 12,400/- on 9 different dates. On 3-2-1970, the defendants filed their reply to the plaintiff's application. On 10-2-1970, the trial Court passed an order striking out the defence. On 19-8-1970, the defendants filed a revision from that order (Civil Revision No. 261 of 1970), which was decided on 15-7-1970, remanding the case for a fresh decision after hearing both the parties.

(d) In the meantime during the pendency of the abovesaid Civil Revision in this Court the defendants had filed an application in the trial Court on 28-4-1970 under Section 13 (2) of the Act for fixing a reasonable provisional rent. In this long application, the defendants repeated their case as stated in the written statement saying what they had been paying as rent from time to time; alleging that on 3-4-1954, the appellate authority, under the provisions of the C. P. and Berar Letting of Houses and Rent Control Order, 1949, had fixed and determined Rs. 200/-as the fair rent, and showing how they were persuaded to pay more thereafter. On 7-10-1970 the plaintiff filed his reply to the defendants' application dated 28-4-1970.

3. By his order dated 10-9-1971, what the learned trial Judge held may be summed up thus:--

(i) Since the defendants did not move the Court within the time prescribed in Section 13 (1) of the Act and the Court accepted the agreed rate of rent to foe payable in its order dated 5-9-1969, the defendants could not ask the Court to fix reasonable provisional rent.

(ii) Since the defendants did not make an application under Section 13 (1) to extend time, the same could not be extended.

(iii) There was no good ground for not complying with the order dated 5-9-1969.

In the result, he struck out the defence under Section 13 (6) of the Act. Although he did not pass any specific order on the defendants' application for fixation of reasonable provisional rent, his order shows that he treated it as barred by time. It is from that order dated 10-9-1971 that the present revision was filed by the defendants.

4. Essentially two contentions are raised in this revision. (i) The trial Court was bound to decide the defendants' application under Section 13 (2); and (ii) the trial Court struck out the defence without having regard to all the facts and circumstances of the case and without any application of the mind to the true position of the law. The order of the trial Court will deprive the petitioners from defending the suit effectively.

5. When this revision was placed before a learned single Judge of this Court, he found that two decisions of another learned single Judge in Lachman Prasad v. Amolakchand, 1969 Jab LJ (SN) 15 and Parasram v. Damadilal, 1970 MP LJ 956, required reconsideration in the light of a Division Bench decision in Firm Ganeshram Harvilas v. Ramchandra. 1970 MP LJ 902 = (AIR1971 Madh Pra 104). He, therefore, recommended the revision to be heard by a larger Bench. That is how this revision is before us. We have heard learned counsel for both parties.

6. The relevant provisions of the Act may be reproduced here.

'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 ofrent has been served on him by the landlord in the prescribed manner;

X X X 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 en 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 de-fault including the period subsequent thereto upto the end of the month previous to that in which the deposit orpayment is made and shall thereafter continue to deposit or pay month by month, toy 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 shallfix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with theprovisions of Sub-section (1) till thedecision of the suit or appeal.

X X X (6) If a tenant fails to deposit orpay any amount as required by thissection, the Court may order the de-fence against eviction to be struck out and shall proceed with the hearing of the suit.

X X X 12 (3) No order for the eviction ofa 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'.

7. It is clear that the operation of Section 13 (1) Commences as soon as the defendant is served with the writ of summons of the suit based on any ground under Section 12, Section 13 (1), Section 13 (6) and Section 12 (3) are correlated with one another Section 12 (3) bestows upon the tenant salutary and overriding protection if he strictly complies with the requirements of Section 13, in which case, no decree for eviction can be passed against him, although he may have incurred the liability of eviction under Section 12 (1) (a). But, if he does not strictly comply with the requirements of either of the two parts of Section 13 (1), upto the end of the trial, he loses that special protection which he wouldhave earned under Section 12 (31. Further, any non-compliance with the requirements of either part of Section 13 (1) may bring about the penal consequence of his defence being struck out under Section 13 (6). The two consequences are distinct and independent of each other, as pointed out in Chitrakumar Tiwari v. Gangaram, 1966 Jab LJ 1028 and Jagdish Kapoor v. New Education Society, Jabalpur, AIR 1968 Madh Pra 1 = (1967 Jab LJ 859) = (1967 MP LJ 837) (FB).

8. In 1970 MP LJ 902 = (AIR 1971 Madh Pra 104) (supra), the object, scope and effect of Section 13 (2) have been stated by another Division Bench of this Court. We must add that the following position also emerges clear on a true construction of the provisions contained in Sections 13 (1), 13 (2), 13 (6) and 12 (3) of the Act:--

(i) When the provisions of Section 13 (6) and those of Section 12 (3) are borne in mind the importance of Sub-section (2) of Section 13 seems to be outstanding. But for this Sub-section (2), the landlord could put the tenant to harassment and embarrassment by claiming an exorbitant amount as arrears of rent due by him or an exorbitant rate of rent; and the tenant would have been compelled to make a choice either to make a deposit of that sum and at that rate, or to run the risk of incurring the penalty under Section 13 (6) and also of losing the special right under Section 12 (3).

(ii) Section 13 (2), inter alia provides a machinery for assuring the defendant the special right under Section 12 (3) and it affords protection to the tenant from the consequences of Section 13 (6). When the reasonable provisional rent is fixed, the tenant can with immunity, go on depositing rent in accordance therewith and on the dates specified in Section 13 (1).

(iii) Sub-section (2) is not controlled by Sub-section (1). There is no time prescribed within which a dispute can be raised under Sub-section (2). However, since the first Part of Section 13 (1) begins to operate no sooner than the writ of summons is served on the defendant and it requires the tenant to deposit arrears of rent within one month thereof, he must either (a) raise the dispute within that one month; or (b) if he raises the dispute after one month, deposit the arrears of rent within one month as required by the first part of Section 13 (1) and also deposit rent as required by the second part of that section, upto the date of raising the dispute. In the latter case, if he has not complied with the requirements of Section 13 (1) his application under Section 13 (2) can in that sense be said to be too late.

(iv) It is the duty of the defendant to produce prima facie evidence when he raises the dispute under Section 13 (2)either in the written statement or by a separate application, before or after the filing of the written statement. At any rate, he is bound to produce such evidence on the date which the trial Courts fixes for that, purpose.

(v) As soon as a dispute under Section 13 (2) is raised it is the duty of the trial Court to determine reasonable provisional rent forthwith, if in its opinion, there is before it sufficient, material for that purpose. Otherwise, it must fix a very early date and call upon the Parties to produce prima facie evidence supported by affidavits on the date so fixed and then after considering such evidence as may be produced by the parties, determine the reasonable provisional rent forthwith. As far as possible, the provisional rent should be fixed before the next payment under Section 13 (1) becomes due.

(vi) The defendant is entitled to raise the dispute under Section 13 (2) even before the written statement is filed. Section 13 (2) does not require any separate application to be made. If the dispute has been raised in the written statement, the Court cannot refuse to determine provisional rent on the ground that a separate application has not been made. Raising of a dispute under Section 13 (2) is applying for such determination.

(vii) If there is any dispute as to the amount of rent, Section 13 (2) en-loins the Court that it shall fix a provisional rent. It is mandatory. A duty is cast upon the Court itself. For no reason can the Court refuse to fix provisional rent. The parties must also invite the attention of the Court to the relevant facts for such fixation.

(viii) Since Section 13 (1) is controlled by Section 13 (2), it follows that as soon as a dispute under Section 13 (2) is raised and it is brought to the notice of the Court the operation of Section 13 (1) is arrested so far as the amount to be deposited is concerned and it remains in suspense until provisional rent is fixed.

(ix) It is therefore, the duty of the Court to make a record, in its proceedings of the day that such a dispute arises in the suit.

(x) The effect of fixation of provisional rent under Section 13 (21 is far-reaching. If there has been no default before the dispute is raised and the tenant deposits rent regularly and punctually as required by both the parts of Section 13 (1), upto the date of judgment he earns the protection of Section 12 (3). Further, he does not incur the risk of his defence being struck out under Section 13 (6).

9. In the present case, the defendants raised the dispute as to theamount of rent in the written statement itself, which was filed on November 23, 1968. It was filed within the time granted by the Court but reasonable provisional rent was not fixed by the Court even in its order dated September 5, 1959 which contains the defendants' allegations from which the dispute as to the amount of rent arose. What the trial Court did was that, it merely extended the time upto 6-10-1969 for the first payment, that is according to the first part of Section 13 (1) directing them to deposit Rs. 1600, which were claimed in the suit and also the arrears upto 23-11-1968 and gave further facility of going on depositing the arrears which accrued due after 23-11-1968, by instalments of Rs. 400/- per month, along with the current rent due after 6-10-1969. On a careful perusal of the entire order we find that the attention of the trial Court was fixed merely to the plaintiff's application under Section 13 (1) (6). The trial Court did not at all apply its mind to the question of fixation of provisional rent within the meaning of Section 13 (2). If it had it would have asked the parties to satisfy it prima facie about it and particularly regarding the alleged order of the Rent Controlling Authority passed in 1954, fixing Rs. 200/- as fair rent within the meaning of the C. P. and Berar Letting of Houses and Rent Control Order, 1949. The Court would have believed it or disbelieved it. And if believed, it would have considered its effect. The-Court would have also considered in what circumstances the defendants paid rent at higher rate. Although no elaborate trial of the issue was necessary, yet a summary enquiry was certainly required. But nothing was done about it. In fact, it said in the last paragraph of the order that if the defendants thought that the plaintiff had compelled them to pay exorbitant rent they could have moved the Rent Controlling Authority immediately after 1-9-1966. It appears to us beyond doubt that there was misapprehension of the law on the part of the Court in not treating the dispute as to the amount of rent having been raised in the written statement as one under Section 13 (2) and about the duty of the Court under that section. In fact, it was also for the plaintiff to have invited the attention of the Court so that the defendants would not unnecessarily gain any advantage on account of the omission to fix reasonable provisional rent under Section 13 (2). It was only when the defendants made an application on 23-4-1970, styling it as one under Section 13 (2) that the plaintiff filed a reply and the trial Court considered the questionwhich it should have decided as expeditiously after 23-11-1968, as possible. Even in its order dated 10-9-1971, the trial Court did not fix any provisional rent because at this stage it thought the application was barred by time. Although we have already said that Section 13 (2) does not prescribe any time limit within which the dispute can be raised, yet in the present case, the trial Court having extended time for the first deposit upto 6-10-1969 (by order dated 5-9-1969), even in that view of the matter, the dispute could be raised before 6-10-1969. The written statement had already been filed on 23-11-1968 in which the dispute as to the amount of rent had been raised. Therefore, looked from any angle, it must be said that the trial Court erroneously refused to exercise its jurisdiction under Section 13 (21 of the Act and this calls for interference in revision. We would have directed the trial Court to decide the dispute and fix a reasonable provisional rent in the light of this order and of the decision in 1970 MPLJ 902 = (AIR 1971 Madh Pra 104) (supra).

10. What we have just now said would have further resulted in setting aside the order passed by the trial Court under Section 13 (6), because when provisional rent is required to be fixed under Section 13 (2), it is from the date of such fixation that the defendant's liability to deposit rent under Section 13 (1) begins, which is apart from the liability of the defendant to deposit rent before the dispute under Section 13 (2) is raised. In the present case, the trial Court extended time upto 6-10-1969 for the first deposit, that is under the first part of Section 13 (1), and since the dispute as to the amount of rent had been raised on 23-11-1968, that is before 6-10-1969 the defence could be struck out only on the non-compliance with the requirements of Section 13 (1), after fixation of provisional rent. In this view of the matter, since the occasion for striking out the defence had not arisen, the order under revision whereby the defendants' defence has been struck out must be set aside as without jurisdiction.

11. As said above, we would have sent back the case to the trial Court for first fixing the provisional rent, but this has become unnecessary because, at the fag end of the hearing, Shri Munshi, learned counsel for the defendants offered that this Court may fix Rs. 800/- as the provisional rent which the defendants would deposit within such reasonable time as this Court may fix. In our opinion the concession is right. Almost four yearshave already passed after the institution of the suit so that the trial of the suit must itself be expedited. We find from the issues framed in the suit that the questions pertaining to the fixation of reasonable rent are also subiect-matters of issues in the suit. Secondly, although the defendants' allegation is that in 1954. Rs. 200/- was fixed as the fair rent yet they admit that thereafter they paid rent at a higher rate. It will not be proper to enter into any elaborate enquiry into the circumstances stated by them to show why they paid a higher rent subsequently. Thirdly, although the defendants rely on another order passed by the Rent Controlling Authority under Section 11 of the present Act, its effect will have to be seen Shri Munshi has sought four months' time to deposit all the arrears at the provisional rate hut we think that only two months' time should be granted.

12. The revision is allowed. The order of the trial Court dated September 10, 1971, striking out the defence, shall stand set aside provided the defendants deposit in the trial Court on or before June 30, 1972, all arrears of rent due by them upto May 31, 1972, at the provisional rate of Rs. 800/- per month and continue to deposit at the same rate on the dates specified in the second part of Section 13 (1) of the Act. The rent so deposited shall be adjusted according to the rate payable by the defendants as would be determined in the final judgment of the suit. The defendants' application dated 28-4-1970 shall thus stand disposed of. Parties shall bear their own costs in this revision.


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