Shiv Dayal, J.
1. This reference has been made by Bhave, J. in the following circumstances. The appellant brought a suit against the respondent for ejectment under Section 12 of the M. P. Accommodation Control Act, 1961, (hereinafter called the Act), on the ground that the suit accommodation had become unsafe for human residence, unless extensive repairs were effected; that the suit accommodation was required for the use of some relations of the plaintiff; that the defendant had sublet the suit premises; and that the defendant had caused substantial damage to the premises let out. The suit was resisted by the defendant.
The trial Court dismissed it holding that not one of those grounds was made out.
2. The plaintiff appealed. At her instance, the first appellate Court struck out the respondent's defence under Section 13(6) of the Act. However, the first appellate Court dismissed the plaintiff's appeal because she had not established any one of the grounds under Section 12 of the Act. The plaintiff then preferred this second appeal.
3. When this second appeal was placed for hearing before a learned single Judge, learned counsel for the defendant urged that the lower appellate Court was in error in striking out the defence. This contention was rejected by the learned single Judge. Then the question which arose for his consideration was whether the burden of proving one of the grounds under Section 12 of the Act still remained on the plaintiff notwithstanding the defence having been struck out. A decision of another learned Judge, in Mst. Hajara Begum v. Guljar Khan, S. A. No. 940 of 1965. D/- 3-3-1969 (M. P.), was cited before the learned single Judge, where the learned Judge in the cited case, had observed as follows:--
'Under the ordinary law, a tenancy is a matter of contract between a landlord and his tenant and is governed by the provisions of the Transfer of Property Act, with the result that a landlord is entitled to evict his tenant after determining his tenancy in accordance with the provisions of the Transfer of Property Act. Section 12 of the Madhya Pradesh Accommodation Control Act, however, puts statutory restrictions on the rights of the landlord in the matter of eviction of tenants by providing that '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' which are then enumerated in clauses (a) to (p) of the Act. But Section 13 at the same time casts certain duties and obligations on the tenant if he wants to get the benefit of these statutory restrictions against eviction. The intention of the Legislature thus appears to be that tenants who do not comply with the provisions of Section 13, cannot get any statutory protection against eviction granted by the Act and cannot therefore claim that the plaintiff landlord cannot evict them unless he has complied with the provisions of Section 12 of the Act. The statutory immunity, from eviction which has been enacted in Section 12 of the Act for the benefit of the tenant is not available to him and the suit becomes in fact a simple suit governed by the provisions of the Transfer of Property Act whereunder the landlord can evict his tenant after determining his tenancy in accordance with the provisions of that Act.
As the only defences of the defendant tenant against his eviction were those which were provided by the Act and which were now not available to him, the suit of the plaintiff landlord must be decreed with costs.'
Since the referring Judge, did not agree with the other learned Judge in the above observations, he has referred the following questions for being decided by a Division Bench:--
'(1) Whether the effect of striking out the defence under Section 13(6) of the M. P. Accommodation Control Act, 1961, is to take out the case from the ambit of that Act and to render that suit as one governed by the Transfer of Property Act alone?
(2) Whether the effect is only to preclude the tenant from adducing positive evidence to show that none of the grounds are made out but the burden of making out a prima facie case of the existence of the grounds still remaining on the plaintiff?'
4. Under the general law, the legal relations between the landlord and tenant are governed by the contract of tenancy between them. The law relating to the landlord's right to eject the tenant and the tenant's liability of being ejected is to be found in the Transfer of Property Act.
5. The Accommodation Control Act is a special enactment conferring certain special rights and imposing certain specialobligations upon the landlords and tenants. One of the objects of this special enactment is to regulate and control the eviction of tenants. Section 12 is the pivot. Under the Transfer of Property Act, once the tenancy is determined according to Section 111, the lessee is bound to put the lessor into possession of the property. The landlord acquires right to possession under Section 108(q) of the Transfer of Property Act, but Section 12 of the Accommodation Control Act then steps in. It imposes a restriction on the right of the landlord to eject his tenant, except on one or more of the grounds enumerated in it. Sub-section (1) of Section 12 reads thus:--
'12. Restriction on eviction of tenants.-
(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:--...............'
6. It is thus quite clear that the landlord, in order to entitle him to a decreefor eviction, must prove: (1) that the contractual tenancy of the demised premises has been validly determined having regard to the provisions of the Transfer of Property Act and the contract between the parties; and (2) at least one of the grounds enumerated in Section 12 exists. If either of these two is not proved, a decree for eviction cannot be passed. Both these factors are sine qua non for a decree for eviction.
7. Section 13 of the Act imposes an obligation on the tenant to deposit in Court or pay to the landlord all arrears of rent and also to go on so depositing or paying rent throughout the pendency of the suit within the time prescribed in the two parts of that section. Sub-section (6) of Section 13 then lays down the consequences of non-compliance with the requirements of section. It runs thus :--
'13(6). If 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.'
Two things are abundantly clear from the language of Sub-section (6). The first is that the defence against eviction, which is struck out is the defence against eviction of the tenant under Section 12 of the Act. Such striking out of the defence does not debar the tenant from taking any defence to which he is entitled under the Transfer of Property Act. Notwithstanding such striking out of the defence he can still show, for instance., that there is no relationship of landlord and tenant between him and the plaintiff, or that the lease was not determined as required by Section 111 of the Transfer of Property Act, so that during the subsistence of the lease he cannot be elected. This was also the view taken in Premdas v. Laxmi Narayan, 1964 MPLJ 190.
8. The second consequence is that when the tenant's defence is struck out under Section 13(6), he loses his right to be heard on the question whether there exists a ground under Section 12 of the Act. This means that his written statement, so far as it relates to plaint averments concerning Section 12, will be ignored and overlooked by the Court; he cannot cross-examine witnesses produced by the plaintiff, and he cannot produce his own evidence in rebuttal. In effect, therefore, the suit or proceeding is to be treated ex parte so far as the question of Section 12 is concerned.
9. However, it is elementary that the plaintiff, in order to be entitled to a decree, must plead and prove the 'cause of action', that is, the bundle of facts which will entitle him to a decree. We have already pointed out from the language ofSection 12 of the Act that the existence of one of the grounds under that Section is essential before a decree for eviction can be passed. This is the force of the words 'no suit shall be filed ..................except on one or more of the following grounds only.' It is incontestable that the plaintiff will have to make out a ground under Section 12 even where the defendant does not enter appearance at all or does not file any written statement.
10. It is wrong to think that the grounds enumerated in Section 12 are grounds of defence; indeed, they are grounds to constitute a cause of action for the plaintiff to sue for ejectment. There is nothing in the language of Section 13(6) of the Act to exclude the application of Section 12 to a suit as a consequence of the striking out of the defence. If that had been the intention of the framers of the law, then the section would have been so worded, and after the words 'may order defence against eviction to be struck out and shall proceed with the hearing of the suit', there would have been found the following words :--
'and shall proceed with the hearing of the suit without entering into an enquiry whether any ground under Section 12 exists.'
The section, as it stands today, merely enjoins the Court 'to proceed with the hearing of the suit'. The only meaning of this expression is that the Court shall proceed with the hearing of the suit according to law. To put it differently, a decree shall be passed, if the plaintiff proves the cause of action on which the suit is based; otherwise, it will be dismissed.
11. On the above analysis, it must be said that as a consequence of the striking out of the defence under Section 13(6) of the Act, the plaintiff is placed in the same position as if the suit proceeds ex parte in the absence of the defendant. The striking out of the defence does not confer any additional right on the plaintiff, nor is he relieved of his burden, which he has to discharge in order to be entitled to an ex parte decree against the tenant. In every event he has to satisfy the Court that he is entitled to eviction under the general law as well as under the special law, that is, Section 12 of the Act. It is a different matter that when the defence is struck out and the second part of his case is to be treated as ex parte, his burden becomes light.
12. In the result, we answer the reference thus:--
(1) The effect of the striking out of the defence under Section 13(6) of the M. P. Accommodation Control Act, 1961, is that the suit thereafter proceeds ex parte to the extent that it relates to Section 12 of the Act. The written statement, so far as it relates to plaint averments concerning Section 12 is overlooked, the defendant is precluded from, cross-examining the plaintiff or his witnesses and he is also precluded from producing any evidence on any question relating to the Accommodation Control Act. The plaintiff's burden to establish at least one of the grounds under Section 12 of the Act becomes light.
(2) However, the effect of the striking out of the defence under Section 13(6) is not to confer any additional right on the plaintiff or to make the provisions of Section 12 inapplicable to the suit. The plaintiff has still to establish that he is entitled to a decree for eviction (a) under the general law; and (b) also under the Accommodation Control Act. And, in spite of his defence having been struck out under Section 13(6), the defendant can still contest the suit as regards (a), although it will proceed ex parte as regards (b).
(3) If the defence is struck out under Section 13(6) in the appellate Court, the appellate Court will still have to see whether on the plaintiff's evidence produced in the trial Court, a ground under Section 12 has been made out. The defendant will be heard on that point to the limited extent of showing that the plaintiffs evidence is not enough to prove any ground under Section 12, but his written statement and the evidence on that aspect of the case will not be considered.