Iqbal Ahmed vs Ramzan

M.K. Mudgal, J—Heard on the question of admission.

Being aggrieved by the judgment and decree dated 11.3.2008 passed by I Addl. District Judge, Katni, District Katni, in Civil Appeal No. 6-A/2007, confirming the judgment and decree dated 1.12.2005 passed by II Civil Judge Class II, Mudwara, District Katni, in Civil Suit No. 23-A/1997, decreeing the suit filed by the plaintiff seeking eviction on the ground under section 12(1)(a) and (d) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as "the Act"), this appeal under section 100 C.P.C. has been preferred by the defendant tenant.

The plaintiff suit in brief was that he is the owner of the house situated in Azad Chowk, Katni, wherein the defendant is tenant at the rate of Rs. 500/- per month. The defendant has not paid the rent w.e.f. January, 1996 till August, 1997, despite demand made in this regard. Even after service of the notice, the rent has not been paid. It is also stated that the suit shop has been closed and not in use since January, 1996, as the defendant has started a shop at Narsinghpur and doing his business having residence therein. As the ground with respect to section 12(1)(f) of the Act has been negatived by the trial Court as well as by the appellate court, therefore, the pleadings to that effect are not being referred.

The defendant by filing written statement has denied service of notice on him inter alia contending that he is not in arrears of rent. The plea taken regarding closure of the suit shop not having its use by him has also been denied since last preceding six months from the date of filing of the suit. However, it is urged that the suit filed by the plaintiff may be dismissed.

The learned trial Court has considered the pleadings and the evidence of the plaintiff and the defendant both and recorded the finding that the decree under sections 12(1)(a) and (d) of the Act may be granted. The appellate court on reappraisal of the evidence of the trial court confirmed those findings, however, this appeal has been preferred.

Shri Jain, learned counsel appearing on behalf of the appellant referring the provisions contained under section 12(1)(a) of the Act and Rule 15 of the M.P. Accommodation Control rules, 1966, (hereinafter referred to as "the Rules") submits that to file a suit seeking eviction on the ground of arrears of rent, the service of notice prior to two months making demand of arrears must be made in the manner prescribed in rule 15. In absence thereto the said ground would not be available granting decree of eviction. In support of such contention reliance has been placed on the judgment of this Court in the case of Babulal and others Vs. Mahendra Swarup Saxena, (1983) JLJ 287 . In view of the aforesaid it is urged that in absence of service of notice, the decree under section 12(1)(a) granted by the trial court is unsustainable in law. It is further his contention that looking to the language as contemplated under section 12(1)(d) of the Act, it is imperative on the plaintiff to prove that the accommodation is not being used without reasonable cause for which it was let out for a continuous period of six months immediately preceding the date of filing of the suit. The word "without reasonable cause" has been interpreted by this Court in the case of Bhagwandas Pawaiya Vs. Registered Firm Kailash Narayan and Bros., (1994) JLJ 174 : (1991) 36 MPLJ 801 : (1991) MPLJ 801 . It is further his contention that the plaintiff has failed to establish that the suit premises is not in use and the need of the defendant has been ceased preceding six months on the date of filing of the suit. In absence thereto, the decree as granted by the trial Court and confirmed by the appellate Court is unsustainable.

On the other hand, Shri Tiwari, learned counsel representing the plaintiff respondent submits that the notice for arrears of rent was served through counsel by registered post on the address given in the suit, which has been admitted by him to be correct in the evidence. In such circumstances, presumption ought to have been drawn under Order V Rule 9(5) proviso thereto. However, until such presumption is rebutted bringing cogent evidence, requirement of section 12(1)(a) of the Act coupled with Rule 15 of the Rules of 1966 has been complied with. In addition thereto, on filing a suit, the summons were duly served on the same address on defendant and despite service of the summons as contemplated under section 12(3) and 13 of the Act, the rent was not paid, however, the order striking off the defence was passed against him. In such circumstances, the plea taken by the defendant appellant is unsustainable in law looking to the well reasoned finding recorded by the trial Court as well as the appellate court granting decree of arrears of rent. It is further his contention that the plaintiff has specifically pleaded that since January, 1996, the premises which was on tenancy with the defendant has been locked down and he has opened the shop at a different place Narsinghpur where the notice was served on him. However, the finding of closure of the premises after locked down by the defendant and to grant decree under section 12(1)(d) of the Act has rightly been recorded which do not warrant any interference in this appeal.

After hearing learned counsel for both the parties and to advert the arguments as advanced by learned counsel for the appellant and looking to the language of section 12 of the Act, it is apparent that it specifies the restriction on eviction of the tenant, meaning thereby the grounds which are available seeking eviction to a landlord has been specified by the Act. Section 12(1)(a) makes a ground to the landlord if the arrears of rent has not been tendered or paid which is legally recoverable from the tenant within two months from the date on which notice of demand for arrears has been served on him in the manner prescribed. The mode of service of notice has been specified in Rule 15 of the Rules of 1966 whereby it is clear that the notice or the intimation required or authorized by the Act to be served on any person by delivering the said notice to that person or by forwarding it to the person by registered post with acknowledgement due.

In the present case, as per the averments made in the plaint it is specifically said in para 6 that notice for arrears from January, 1996, has been sent by registered post. However, the acknowledgement if not filed then in the context of Order 5 Rule 9(5) proviso thereto the service ought to be presumed. Rule 15 do not contemplate that the presumption as specified in the Code of Civil Procedure would not operate in the matter of service of the summons by registered post. In addition thereto, as per section 12(3) of the Act, it is clear that the decree of eviction of a tenant on the ground of arrears of rent shall not be passed if the tenant makes payment or deposited the rent as specified in section 13, meaning thereby rule 12(1)(a) of the Act specifies a requirement for demand of arrears prior to filing of the suit, but rule 12(3) specifies grant of a decree of arrears of rent. It includes the initial demand of arrears prior to passing the decree.

In the present case, the notice of arrears of rent was sent on the address of the defendant of Narsinghpur where he started business and the summons were also sent on the same address giving the address of the defendant by registered post which has been accepted in the cross examination before the court by him. In such circumstances, the service of notice of demand of arrears sent prior to filing of the suit by drawing presumption contemplated under Order 5 Rule 9 C.P.C. may be accepted and the trial court though on a different reasoning discarded the grounds as raised before this Court, but looking to the discussion made hereinabove coupled with the fact that despite service of summons due to non-payment of arrears of rent as contemplated under section 13 exercising power under section 12(3), decree of arrears of rent has rightly been passed by the trial court. In such circumstances, the findings of fact recorded by the trial court and confirmed by the appellate court do not warrant any interference.

So far as the judgment in the case of Babulal (supra) is concerned, the facts of the said case are not applicable in the facts of the present case, as discussed hereinabove. In addition thereto, the said judgment merely dealt with the issue of service of notice with respect to rule 15 and not in the context of presumption of service of notice by registered post and also non-payment of arrears of rent despite service of summons as contemplated under section 13 of the Act, therefore, it is not applicable in the facts of the present case.

So far as decree under section 12(1)(d) of the Act is concerned, as per the requirement the plaintiff has to prove that the accommodation has not been used without reasonable cause for which it was let out continuously for a period of six months preceding to filing of the suit. In the said context the pleadings of the plaint is relevant wherein it is apparent that the defendant has started his business at Narsinghpur shifting from Katni in the name of Raja Auto Electrical Works after locking the tenanted premises of the plaintiff at Katni. It is specified that from January, 1996, till filing of the suit, the suit shop is locked and the rent has not been paid including the payment of electrical charges which has been paid by the plaintiff. The said cogent evidence has been believed by the two courts.

Learned counsel for the appellant is unable to show any iota of evidence to demonstrate that the suit shop did not remain closed for continuous period of six months. However, in absence thereto, the findings of fact as recorded by the courts below concurrently do not warrant any interference in this appeal.

So far as the argument advanced interpreting language of section 12(1)(d) of the Act that "without reasonable cause" includes ceasing of the need of the plaintiff is concerned, in my considered opinion cannot be the interpretation of the language implied in the said section.

In that view of the matter and looking to the fact that the decree under section 12(1)(a) of the Act has been affirmed, as discussed hereinabove, interference in this appeal is not warranted.

Accordingly, this appeal is devoid of any substance and do not involve any substantial question of law, therefore, it is dismissed.

At this stage, learned counsel representing the appellant prays for time to vacate the suit premises for a year, which is opposed by the other side. In the interest of justice, on considering the rival contentions and relying upon the judgment of Hon''ble Apex Court in the matter of Ghisalal M. Agrawal (D) Thr. L.Rs. and Others Vs. Rameshwar @ Ramu Jawaharlal and Another, (2012) 5 SCC 758 , it would be desirable to grant sometime to vacate the premises. However, it is directed that the appellant shall vacate the suit premises on or before 31/05/2015 subject to compliance of the following conditions:-

"(i) that appellants shall file an affidavit before the Executing Court indicating that they shall deposit the regular rent on or before 15th day of every month and pay the arrears of rent, if any, within a month, if it exceed from the amount of advance deposit.

(ii) They shall also furnish an undertaking before the Executing court that appellant shall deliver the vacant possession of the suit premises to the plaintiff/respondent on or before 31/05/2015 and shall not part with the possession of the suit premises creating third party right.

(iii) An undertaking shall also be furnished by the appellant/defendant to the effect that if the suit premises is not vacated on or before the said date, in that event, he shall pay the compensation at the rate of Rs. 500/- per day to the plaintiff in addition to rent.

(iv) The said affidavit and undertaking shall be submitted within two weeks from the date of receipt of certified copy of this order."

On violation of any of the conditions enumerated herein above, the plaintiff would be entitled to get executed the decree in accordance with law.

C.c. as per rules.