Ganesh Prasad vs Asadulla Usmani

K.K. Lahoti, J.—This petition is directed against two orders passed by XIII Civil Judge Class-II, Jabalpur in Civil Suit No. 20-A/2009. One order is dated 5.2.2010 Annexure P/15 by which the right of the Petitioner to file reply was closed. Another order is dated 17.2.2010 Annexure P/16 by which the defence of the Petitioner was struck out. The Petitioner has also challenged order dated 23.6.2010 by which an application filed by the Petitioner seeking review of the order dated 17.2.2010 (Annex.P/16) was rejected.

Facts in short necessary for just decision of the case are that the Petitioner is a tenant of Respondent. A suit for eviction against the Petitioner is filed u/s 12(1)(a), (c) and (f) of the Madhya Pradesh Accommodation Control Act, 1961 (herein after referred to ''the Act'').

In the suit, an application (Annex.P/6) u/s 13(6) of the Act for striking off the defence of the Petitioner was filed by the Respondent in which it was alleged by the Respondent that the Petitioner had not deposited the rent in the court as was required u/s 13(1) of the Act and his defence deserves to be struck out. The tenant took time to file reply, but had not filed reply till 18.1.2010. However on 5.2.2010, right of the Petitioner to file reply was closed.

On 17.2.2010 vide Annexure/16, the trial Court considered the application. On the aforesaid date, none was appearing for the Defendant. The trial Court found, as per allegations made in the application, that the rent was not deposited after 31.12.2003 and directed to strike out the defence of the Petitioner.

Thereafter, the Petitioner moved an application under Order 47, Rule 1 CPC Annexure P/7 seeking review of the order dated 17.2.2010. The Petitioner filed a chart showing deposit of the rent by the Petitioner before the trial Court along with photocopies of all the receipts. The trial Court considered this application and rejected it by the order dated 23.6.2010. These orders are under challenge in this petition.

The learned Counsel for the Petitioner submitted that in the case rate of rent was not disputed which was Rs. 200/- p.m. On 18.7.2003, the trial Court passed an order by which the Petitioner was allowed two months'' time for the compliance of the first limb of Section 13(1) of the Act and in future for the compliance of the provision. The Petitioner deposited all the arrears of rent including advance rent up to 31.12.2003 Rs. 7,200 on 1.8.2003. Thereafter the Petitioner deposited the rent in advance of every three months rent. The rent was deposited by the Petitioner in the months of January, April, July and October in advance. A chart in this regard was produced before the trial Court which is available on page 83 and 84 of the paper book. It is stated by the Petitioner that when the entire rent was deposited before 17.2.2010, then the trial Court ought not to have struck out the defence of the Petitioner. It was submitted that though the reply could not be filed on 17.2.2010, but it was not deliberate act of the Petitioner. On that date, the Petitioner along with his counsel was in the office of Nazir of the Court to prepare a chart in respect of deposit of the rent, but in the meantime, the case was called and in absence of the Petitioner and his counsel right to file reply was closed on 5.2.2010. Even on 17.2.2010, in the absence of counsel of the Petitioner, the case was heard and order was passed.

On knowing all these facts, the Petitioner moved an application under Order 47, Rule 1 CPC for reviewing the aforesaid order. As there was an error on the face of record, but the trial Court has not considered the case in proper perspective. It is submitted that the defence available to the Petitioner u/s 12(1) of the Act is valuable right available to the Petitioner but now in the light of the orders passed by the trial Court, the Petitioner would be deprived with the statutory protection. It is submitted that the impugned orders in Annexures P/15, P/16 and P/17 may be quashed.

Shri G.K. Handa, Counsel appearing for the Respondent/landlord opposed the petition vehemently. It was submitted by him that the rent was not deposited in time. He has drawn attention of this Court towards the rent deposited by the Petitioner on 19.1.2006, 16.1.2008 and 18.1.2010 and submitted that the aforesaid rent was not deposited on or before 15th of English calendar month. The trial Court has rightly struck out the defence. It was also submitted by him that in spite of various opportunities, the Petitioner herein had not furnished the accounts of deposit of the rent though Petitioner was possessing receipts of deposit of the rent with him. The Petitioner ought to have furnished the accounts of deposit of the rent when an application u/s 13(6) of the Act was filed by the Petitioner before the trial court.

To appreciate rival contentions of the parties, the crucial question may be considered whether the Petitioner deposited entire rent on or before 17.2.2010 when an order u/s 13(6) against the Petitioner was passed. A chart showing deposit of the rent is filed on page 83-84, in which it is stated by the Petitioner that there is an error in respect of the date which is mentioned as 7.7.2004 while the correct date is 7.4.2004. The Petitioner has drawn attention to the receipt, available at page 76, which reveals that in fact the rent was deposited on 7.4.2004. Taking into consideration that the rent was deposited on 7.4.2004, we reproduce the chart prepared by the Petitioner for ready reference which is as under:

No.

Date

Payment

Month

3181

1.8.2003

7200

Year of 2001

Year of 2002

Year of 2003 up

to 31.12.2003

11444

12.1.04

600

Jan,Feb,Mar

118840

7.4.04

600

Apr,May,June

11958

3.7.04

600

July, Aug. Sept.

12047

600

Oct, Nov, Decm

12127

6.1.05

600

Jan,Feb,Mar

11050

6.4.05

600

Apr, May, June

11095

7.7.05

600

July, Aug, Sept.

11171

10.10.05

600

Oct, Nov, Decm

11313

19.1.06

600

Jan,Feb,Mar

11422

10.4.06

600

Apr, May, June

11451

5.7.06

600

July, Aug, Sept.

11569

9.10.06

600

Oct,Nov,Decm

11697

10.1.07

600

Jan,Feb,Mar

11761

12.4.07

600

Apr, May, June

11830

9.7.07

600

July, Aug, Sept.

11920

11.10.07

600

Oct,Nov,Decm

11990

16.1.08

600

Jan,Feb,Mar

1238

1.4.08

600

Apr, May, June

1345

9.7.08

600

July, Aug, Sept.

1400

13.10.08

600

Oct,Nov,Decm

1582

6.1.09

600

Jan,Feb,Mar

1658

15.4.09

600

Apr, May, June

5329

7.7.09

600

July, Aug, Sept.

5441

5.10.09

600

Oct, Nov, Decm

5539

18.1.10

600

Jan, Feb, Mar.

The Petitioner has also filed all the receipts of deposit of rent in Court in support of above chart.

On 18.7.2003, an order Annexure P/5 was passed by the trial Court by which the Petitioner''s application u/s 13(1) of the Act was allowed, the delay in deposit of the rent was condoned and the Petitioner was directed to deposit all the arrears of rent within a period one month from the date of order and thereafter the Petitioner was directed to deposit the rent regularly as per law. The Petitioner deposited all the arrears of rent on 1.8.2003 which was within the time period as fixed by the order dated 18.7.2003 Annexure P/5. It is not in dispute that the aforesaid rent was deposited for the period up to 31.12.2003. Thereafter the Petitioner has deposited rent in advance for 3 months regularly and continuously the rent was deposited by the Petitioner in advance on the dates as stated hereinabove. This fact specifically shows that the Petitioner deposited all the rent up to 17.2.2010 when the order u/s 13(6) was passed against the Petitioner. Though the Petitioner ought to have produced all the particulars of deposit of the rent and receipts before the trial Court, but the Petitioner failed to produce it within the time and has suffered an order and for this Petitioner cannot blame to any other except himself. However, Section 13(1) of the Act provides special protection of the tenant against eviction and if the defence is struck out, the tenant will not be able to avail the defence, which are available to him u/s 12(1) of the Act. So it is a valuable right given by the legislation to the tenant and if the provisions as continued u/s 13 of the Act are complied with, the tenant is entitled to avail the defence available to him, but in case the defence is struck out, the tenant shall be deprived to avail the defence available to- him u/s 12(1) of the Act. So any order u/s 13(6) is penal in nature. In these circumstances, even if the tenant was at fault, the trial Court on furnishing the aforesaid particulars ought to have taken cognizance that on 17.2.2010 when the order was passed, the tenant in fact was not in arrears of rent and he had deposited all the arrears of rent in compliance of the order dated 18.7.2003 (Annexure P/5) and thereafter in accordance with the provisions as contained u/s 13(1) of the Act. Though Shri Handa appearing for the Respondent, disputed the position and submitted that on 19.1.2006, 16.1.2009 and 18.1.2010 rent was not deposited within time, but the aforesaid contentions is not correct. As per Section 13(1) of the Act, the tenant is required to deposit the rent of last month in succeeding month on or 15th of the month. The aforesaid dates which are referred by Shri Handa refer to the rent deposited in advance for the month of January for which the tenant was entitled to deposit on or before 15th Feb., the succeeding month, but it appears that rent of months of January, February and March was deposited in the month of January itself and there was no default on the part of the Petitioner.

In view of the aforesaid, we find that the trial Court erred in passing order in Annexure P/17 dated 23.6.2010 which order is not sustainable under the law. The trial Court ought to have considered all these facts and there was sufficient reason for reviewing of the order dated 17.2.2010.

In view of the aforesaid, the orders in Annexures P/16 and P/17 are not sustainable under the law and are hereby quashed. It is found that the rent was deposited by the Petitioner within time and there were sufficient reasons to review order dated 17.2.2010 by allowing the application. Now the Petitioner shall be entitled to contest the suit in accordance with law after complying with the provisions as contained u/s 13(1) of the Act.

Considering the facts of the case, as because of the fault of Petitioner, the order dated 17.2.2010 was passed, the Petitioner shall bear cost of the Respondent''s. Counsel Rs. 1,000/- if certified.

At this stage, the learned Counsel for the Respondent submitted that the suit has been filed in the year 2002. The Petitioner is an octogenarian. The conduct of the Petitioner is of delaying proceedings of the case. So the trial Court be directed to expedite the hearing of the suit.

To this Shri Verma, the learned Counsel appearing for the Petitioner, submitted that there is no delay on the part of the Petitioner.

After considering the fact that the suit is pending since 2002 and the Respondent is the octogenarian,a senior citizen, we direct the trial Court to expedite the hearing of the suit. The trial Court shall make an endeavour to hear and decide the suit expeditiously as far as possible within a period of six months from the date of communication of this order.

Certified copy as per Rule