Narendra Suri vs Sudershan Kumar Sethi

With consent of learned counsel for the parties, matter is heard finally. By this instant petition, petitioner has assailed the validity of the order dated 13.04.2018 (Annexure P/9) passed by the Court below whereby, the defence of the defendant/petitioner has been struck out under the provision of Section 13(6) of M. P. Accommodation Control Act, 1961 (in short "Act of 1961").

Learned counsel for the petitioner submits that the order of Court below is contrary to the basic object of Section 13(6) of the Act of 1961 and the same has been exercised by the Court below as it is mandatory provision and if any violation of Section 13(1) of the Act of 1961 is done by the tenant, then automatically the defence of the tenant would be struck down. Learned counsel for the petitioner further submits that the provision of Section 13(6) of the Act of 1961 is discretionary and while exercising the discretionary jurisdiction, the Court has to see that the reason for non-compliance of Section 13(1) of the Act of 1961 is justified or not.

Learned counsel for the petitioner also submits that from the order itself it is clear that the Court has not considered the reason for not making deposit as per Section 13(1) of the Act of 1961 and thus, has allowed application of the plaintiff/respondent and struck down the defence of the defendant/petitioner. In support of his contention, the learned counsel for the petitioner is relying upon the judgements reported in AIR 1980 SC 587: parties being Shyamcharan Sharma v. Dharamdas and 1995 (1) SCC 356: parties being Kamla Devi (Smt.) v. Vasdev.

Per contra learned counsel appearing for the respondent submits that, despite determination of provisional rent by the trial Court and thereafter said order was assailed by the present petitioner, before this Court in which on 04.09.2017, the Court has fixed the provisional rent @Rs.10,750/- per month after reducing the same from Rs.11,550/- per month, the defendant has not deposited the same and made a request before the Court below that he may be permitted to deposit the same in installments.

It clearly indicates that on one or the other pretext they were avoiding to make compliance of the provision of Section 13(1) of the Act of 1956 and further they were not complying the order passed by the High Court whereby, rent @Rs.10750/- per month was determined provisionally. Therefore, the Court has rightly entertained his application and exercised the power under Section 13(6) of the Act of 1961 striking out the defence of the defendant/petitioner. To bolster his contention, the learned counsel for the respondent has relied upon a judgment reported in "2013(1) M.P.L.J 453.: parties being Subhash Jaiswal v. Triloknath Kakkad".

Considering the arguments advanced by the parties and on perusal of the record, it is clear that by the order impugned dated 13.04.2018, the Court below though rejected the request of the petitioner for depositing the arrears of rent in installments and simultaneously allowed the application of plaintiff/respondents filed under Section 13(6) of the Act of 1961 striking out the defence of the defendant/petitioner, however, the order nowhere reveals that the Court has exercised the discretion and has not found the reason assigned by the defendant/petitioner for committing default in not depositing the rent every month and without giving any finding thereof that such reason is not justified, entertained the application of the plaintiff, allowed the same striking out the defence of the defendant.

In case of Shyamcharan Sharma (supra), the Supreme Court in paragraph 4 has held as under:-

"4- It is true that in order to entitle a tenant to claim the protection of s. 12(3), the tenant has to make a payment or deposit as required by s. 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straight away, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by sub-ss. (5) and (6) of s. 13. Since there is a statutory provision expressly prescribing the consequence of non- deposit or non-payment of the rent, we must look to and be guided by that provision only to deter mine what shall follow. S. 13 (6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him. S. 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction. In other words, the Court, having regard to all the circumstances of the case, may or may not strike out the defence. If s. 13 were to be construed as mandatory and not as vesting a discretion in the Court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by s. 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction. We think that s. 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by s. 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by s. 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Another construction may lead, in some cases, to a perversion of the object of the Act namely, 'the adequate protection of the tenant'. S. 12(3) entitles a tenant to claim protection against eviction on the ground specified in s. 12(1) (a) if the tenant makes payment or deposit as required by s. 13. On our construction of s. 13 that the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection. of s. 12(3). One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit. Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in s. 13(1) as the consequence of non- payment was proposed to be dealt with by a separate sub- section. namely s. 13(6). Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would. therefore, be no question of striking out the defence and, so, there would be no question of s. 13(6) covering the situation."

In view of the above, it is clear that the Supreme Court has observed that the provision of Section 13(6) of the Act of 1961 cannot be exercised as a mandatory provision but it is discretionary and the Court should exercise the same striking down the defence of a tenant if he commits the default of not complying the provisions of Section 13(1) of the Act of 1961 without any justifiable reason.

Considering the application filed under Section 13(1) of the Act of 1961 it can easily be presumed that the trial Court has exercised the discretion arbitrarily and used the provision of Section 13(6) of the Act of 1961 as if it is mandatory.

Likewise, the Supreme Court further in case of Kamla Devi (supra) has again reiterated the same dealing with the provision of Section 15(7) of Delhi Rent Control Act which is pari materia to the provisions of Section 13(6) of Act 1961 and has held the said provision as discretionary but not mandatory.

So far as the judgment relied by the respondent/plaintiff is concerned, that was a case in which defence was struck out though the decree under Section 12(1)(a) of the Act of 1961 was passed against defendant and the Supreme Court has observed that exercising such a discretion was justified and that it cannot be said that the Court has acted arbitrary. However, in the present case, the trial is still going on and no decree under Section 12(1)(a) of the Act of 1961 is passed, therefore, the said case is not applicable in the existing facts of the case.

Considering the law laid down by the Supreme Court and the contentions raised by the counsel of the parties, I am of the opinion that there is a force in the contention raised by learned counsel for the petitioner and thus the order impugned is liable to be and is hereby set aside. The defendant/petitioner is permitted to participate in the civil suit but he is granted one month's time to deposit the arrears of provisional rent as per the rate determined by the High Court i.e. Rs.10,750/- per month with 10% increase every year. If the amount of arrears is not deposited by the defendant/petitioner then plaintiff is at liberty to move a fresh application under Section 13(6) of the Act of 1961 and Court below will act in accordance with law.