Mangilal vs Saligram

J.P. Bajpai, J.—This second appeal is at the instance of the defendant tenant seeking interference with the judgment and decree made by the trial Court and affirmed by the lower appellate Court directing eviction by holding that the ground u/s 12(I)(a) of the M.P. Accommodation Control Act, 1961 (here-in-after referred to as ''the Act'') was fully established.

The facts relevant for the purposes of this appeal are that the house of which the suit shop forms a part belonged to one Mukuadrao according to the plain till The suit house was mortgaged by Mukundrao and a decree was passed for recovery of the amount under the mortgage. After the death of Mukund Rao, his sons Narayanrao and Keshavrao were substituted in his place, la the auction sale held in execution of the decree far recovery of the amount under mortgage the suit house was sold in favour of one Gupaldas. The plaintiff is the transferee from Gopaldas. The case of the plaintiff was that the defendant was the tenant of the original owner Mukundrao and after his death, became, the tenant of Narayanrao, his son. Since the suit house was sold in auction in favour of Gopaldas, who, in turn, sold the same to the plaintiff, the defendant became the tenant of the plaintiff on the same terms and conditions in which he held the suit shop on a monthly lease on payment of Rs. 12- P.M. as rent. The defendant failed to pay the arrears of rent and, therefore, the plaintiff earlier instituted a suit in the Small Causes Court for recovery of arrears of rent and the same was decreed. While giving his statement in the aforesaid Small Cause suit, the tenant defendant had stated that he was the tenant of Mukundrao and. after his death, accepted his son Narayanrao as his landlord. The Small Cause suit was decreed for arrears of rent in favour of the plaintiff Saligram and the amount under the decree was recovered by executing the said decree. I hereafter when the defendant again committed default in payment of rent the plaintiff served the defendant with a notice of demand and also terminated his tenancy according to the provisions of S. 106 of the transfer of Property Act and demanded vacant possession along with arrears of rent It was not disputed it the defendant did not comply with the notice of demand of arrears of rent and did not pay arrears of rent within the period of two months from the date of service of notice of demand and also refused to vacate the suit premises. On the contrary, in reply to the notice u was stated that the plaintiff was not his landlord. Thereafter the plaintiff instituted the suit giving rise to this second appeal claiming eviction, arrears of rent and mesne profits by contending that the tenant was liable for eviction on the. ground under S. 12(1)(a) of the Act i.e.t default in payment of arrears of rent despite service of notice of demand and also on the ground under S. 12(1)(c) inasmuch as the tenant by denying the title of the landlord had committed an act which was likely to affect the interest of the landlord adversely.

The case of the defendant in the written statement was that since Kamlabai, the daughter in law of Mukundrao, claimed herself to be owner by virtue of an unregistered gift deed alleged to have been executed by Mukundrao in favour of Radhabai and Radhabai having made a will in respect of the suit-house in her favour, the auction sale in execution of the decree for recovery of the amount under the aforesaid mortgage was null and void4 because Mukundrao having already made the gift, though by an unregistered deed, had no authority to mortgage the suit house with any body and since the mortgage was itself bad in law, the auction sale of the suit house in execution of the decree for recovery of the alleged amount of mortgage was also bad and not binding on her. The defendant also contented that he was already paying rent to Kamlabai since 1954. So far as the availability of the ground under S 12(1)(c) of the Act was concerned the case of the defendant was that he had not done any act adverse to the interest of the landlord. Simply by raising a contention that one other person, viz, Kamlabai, claimed herself to be the landlord and was recovering the rent of the suit premises, it cannot be said that the defendant-tenant had put up a case of claiming the title of the tenanted premises with himself, or done any act adverse to the interests of the landlord In respect of the ground under S. 12(1)(c) of the Act, the defendant-tenant contended that though he disputed the entitlement of the plaintiff to receive rent, he had made the deposit of the arrears of rent within one month without raising any dispute and that the amount so deposited may be allowed to be withdrawn by such person whom the Court may ultimately find to be the landlord. Under these circumstances, he was not liable for eviction on the ground under S. 12(1)(a) of the Act.

It was not disputed that the defendant-tenant failed to comply with the requirements of S. 13(1) of the Act in making deposit of rent as required by the second part of S. 13(1), i.e.t subsequent monthly deposits on or before the 15th of the next month according to the English calender. The defendant complied with the first part only by making deposit within one month of the arrears of rent, as claimed by the plaintiff. The lower appellate Court, however did not hold that any ground under S. 12(1)(c) was made out. but it found that the ground under S 12(1)(a) of the Act was fully established from the undisputed circumstances that the defendant had not paid the arrears of rent in compliance with the notice of demand within the statutory period of two months and that he had also not fully complied with the requirements of S. 13(1) of the Act. The lower appellate Court, therefore, decreed the suit for eviction on the ground of default in payment of the arrears of rent.

Before this Court, the challenge to the judgment and decree impugned was based on the following three contentions:

(1) That the Courts below erred in law in holding that the appellant defendant had become the tenant of the plaintiff Saligram merely for the reason that the suit house had been sold in execution of the decree against Mukundrao, Narayanrao, etc., in favour of Gopaldas and Gopaldas had sold the same to the present plaintiff;

(2) That since the defendant-tenant had raised a dispute not only regarding entitlement of the plaintiff to claim rent but also regarding the rate of rent in the written statement, the trial Court was under the statutory obligation to make a provisional order as contemplated by sub-sections (2) and (3) of S, 13 of the Act and, so long as the said order was not made, the operation of the provisions of sub-section (1) of S, 13 of the Act remained arrested and, therefore, there was no basis for making a decree for eviction on the ground u/s 12(1)(a) of the Act by holding that there was non-compliance of S. 13(1) of the Act;

(3) that since the claim of Kamlabai regarding declaration of her rights as the owner of the suit house is already sub-judice in a second appeal before this Court, no decree for eviction could be made in favour of the present plaintiff because his right of ownership of the suit premises was itself under litigation.

As regards the first contention, it would suffice to observe that the finding concurrently recorded by both the courts below that from the material on record, it was fully established that there was a relationship of landlord and tenant in between the parties, being a finding on a question of fact, is not open for interference at this stage in second appeal, unless it is shown that the finding so arrived by the Courts below is perverse or arbitrary in any manner. The finding recorded by the Courts below is based on sufficient material on record. It has been fully established that the defendant was the tenant of the original landlord Mukundrao and, after his, of Narayanrao, the son of Mukundrao. He bad made this statement on oath before the Small Causes Court in an earlier suit which was brought against him for recovery of arrears of rent by the present plaintiff When, in the present suit, the defendant went to the extent of stating in his deposition that he was the tenant of Kamlabai, the said statement in the earlier suit was put to him and he found it convenient to get rid of the same by simply saying that he might have given such a statement He did not challenge the decree for arrears of rent passed against him in favour of the plaintiff and the said amount was recovered by executing the said decree, Since in the year 1964-65 he happened to make a statement admitting himself to be the tenant of Mukundrao and, after him, of Narayanrao, the contention, now put forth that he was the tenant of Kamlabai since 1964 onwards is apparently an after though and was right rejected by the Courts below. The learned counsel for the appellant could not point out anything to meet this situation except that according to him the aforesaid admission was not binding and that the judgment of the Small Causes Court did not operate as res judicata. In my opinion, without going into the merits of the contention that the judgment of the Small Causes Court in a rent suit does or does not operate as resjudicata, it would suffice to observe that the said circumstance is at least a material and relevant piece of cogent evidence to negative the stand now taken by the defendant in the present suit. I am, therefore, of the opinion that the concurrent finding arrived by the Courts below does not call for any interference and is binding on the parties.

As regards the second contention, that since a dispute as contemplated by sub-sections (2) and (3) of S. 13 of the Act was raised in the written Statement, the failure of the trial Court to make a provisional order, as provided by the aforesaid two subsections, resulted in keeping the operation of subjection (l) of s. 13 of the Act under arrest and, as such, no decree under S, 12(1)(a) could be passed by holding that there was non-compliance of S 13(I) It is evident that in view of the undisputed circumstance that the defendant-tenant did not raise the dispute as contemplated by subsections (2)and (3) of S. 13 of the Act and started making payment in compliance with the requirements of sub-section. (1) of S. 13 at the rate as claimed by the plaintiff and did not raise any dispute either under Sub-sec. (2) or Sub-sec. (3) of S. 13 for the purpose of compliance of the requirements of sub-section (I) of S. 13, there was no obligation on the trial Court, to make any provisional order. It is true that according to the decision of a Full Bench of this Court in Chhogalal v Idol Bhagwan Shri Satyanarayan 1975 JLJ 779, raising of a dispute for the purposes of S. 13 (2) and (3) in the written statement itself is sufficient and it is not necessary for the defendant to move a separate application. It is also true that the trial Court may be bound to make a provisional order when the defendant raises a dispute for the purposes of provisional adjudication under subsections (2) and (3) of S. 13 even in the written statement and no separate application may be necessary. But it is always open to a party to ware a dispute which is raised by it or not to raise any such dispute at all for the purposes of an order under Subsections (2) and (3) of section 13 of the Act. In the present case, the averments made in the written statement are significant. The defendant despite raising the contention that Kamlabai and not the plaintiff, was the landlord and, as such, was entitled to receive rent made a specific averment in para 3 of the special pleas stated in the written statement that so far as the question of deposit of the rent was concerned he was depositing the rent at the rate claimed by the plaintiff without raising any dispute. He did make the deposit also. This clearly indicated that the dispute for the purposes of sub-sections (2) and (3) of S. 13 of the Act even if any was waived. Even otherwise, it will not be just and proper to accept the pro� position which would permit the defendant to create an impression that he was complying with the provisions of S. 13(1) without raising any dispute and when subsequently he happens to commit a default he can turn round and contend that since there was some dispute mentioned in the written statement provisional adjudication must have been made and the same having not been done, he is not liable for any consequence of the default made by him.

Similar view has been taken by this Court in the case of Roopchand v. Premibai 1976 MP WN 31 digested as Short Note No. 81 decided on 16-8-1976, and 1 do not find any reason to take a different view. This contention too, therefore, fails and it is held that in view of the undisputed facts and circumstances the decree for eviction on the ground under S. 12(1)(a) is valid.

As regards the third contention, looking to the nature of the present suit which is based on the relationship of landlord and tenant and the said relationship having already been established, there is no justification for refusing or withholding the decree for the relief as claimed by the plaintiff as landlord against the defendant as tenant for the reason that some litigation is pending in between Kamlabai and the plaintiff. Kamlabai is not a party to the present suit. The defendant is a ho not a party to the suit brought by Kamlabai claiming title in respect of the suit house. The decision in the present suit is not going to affect or prejudice the rights of the parties to the suit brought by Kamlabai against the plaintiff and his predecessors in title. Once the relationship of landlord and tenant has been established in between the plaintiff and the defendant is bound by the same and is liable to hand over possession to the landlord on determination of his tenancy and the ground under S. 12(1)(a) of the Act having been established, the decree for eviction is liable to be sustained. It is for Kamlabai to obtain possession from the plaintiff or to claim mesne profits if at all she ultimately succeeds.

No other point was pressed.

This appeal, therefore, fails and is dismissed with costs Counsel''s fee according to schedule, if certified.

P. S.

Due to mistake, mention of grant of time of two months to the appellant-tenant for vacating the suit premises and handing over vacant possession of the same to the plaintiff-landlord, could not be nude in the body of the original judgment. This fact was brought to the notice of the Court by Shri Katare, counsel for the appellant-tenant in the presence of Shri Mangal, counsel for the plaintiff-respondent. As was already observed during the course of hearing two months'' time it granted from the date of the judgment.