Neelu Bai vs Phagumal

N.K. Mody, J.

Appellant by Mr. Subodh Abhyankar, advocate with Mrs. Neelam Adbyankar, advocate.

Respondent by Mr. Vishal Baheti, advocate.

Being aggrieved by the judgment dated 26-10-2005 passed by X Additional District Judge, Indore in Civil Appeal No. 35-A/05 whereby the judgment dated 27-1-2005 passed by XI Civil Judge, Class-I, Indore in Civil Suit No. 254/03 whereby decree of eviction was passed against the Appellant u/s 12(1)(a) and (f) of the M.P. Accommodation Control Act (in short the "Act") was modified by setting aside the decree u/s 12(1)(f) of the Act and maintaining the decree u/s 12(1)(a) of the Act, the present appeal has been filed.

The appeal was admitted by this Court for final hearing vide order dated 1-3-2006 on the following substantial questions of law:

(i) Whether the sending of the arrears of rent claimed in the notice by Money Orders and refusal of the same by the Plaintiff within a period of two months from the date of receipt of the Notice disentitles the Plaintiff to claim decree for eviction u/s 12(1)(a) of M.P. Accommodation Control Act? (ii) Whether, under facts and circumstances of the case the decree of eviction u/s 12(2)(a) of the M.P. Accommodation Control Act is legally sustainable?

(iii) Whether eviction decree can be passed against the tenant in default of rent during the pendency of the suit proceedings in view of Section 13 of Accommodation Control Act?

Since the decree was not passed u/s 12(1)(f) of the Act, therefore, cross-objections were filed by the Respondent upon which following substantial questions of law were framed vide order dated 27-9-2006:

(a) Whether the lower Appellate Court was justified in revering the judgment and decree passed by the trial Court on the ground covered u/s 12(1)(f) of M.P. Accommodation Control Act?

(b) Whether the reasoning of the first Appellate Court of reversal of a ground falling u/s 12(1)(f) ibid is legally and factually sustainable?

(c) Whether the finding recorded by the first Appellate Court on reversal contained in paragraphs 13 and 14 satisfy the principles laid down for examining the bona fide need of the Plaintiff and hence is liable to be sustained?

Short facts of the case are that the Respondent filed a suit for eviction on 26-6-2001 alleging that the Appellant is tenant of the Respondent in the Municipal House No. 54/1 situated at Bhanwarkunwa, Sindhi Colony, Indore @ Rs. 600/- per month. It was alleged that the nature of the suit accommodation is nonresidential. It was alleged that the Appellant is in arrears of rent w.e.f. 1-6-2000, which has not been paid by the Appellant in spite of notice of demand dated 23-1-2001, which was duly served on 10-2-2001. It was alleged that the Respondent requires the suit accommodation bona fidely to carry on the business of Kirana. It was alleged that the Respondent is having no other alternative accommodation to carry on the business in the city of Indore. It was prayed that decree of eviction be passed u/s 12(1)(a) and (f) of the Act.

The suit was contested by the Appellant by filing written statement. However, the rate of rent and the arrears were not challenged. It was prayed that the suit be dismissed. After framing of issues and recording of evidence suit filed by the Respondent was decreed u/s 12(1)(a) and (f) of the Act, against which an appeal was filed by the Appellant which was allowed in part and the decree passed u/s 12(1)(f) of the Act was set aside, against which present appeal has been filed, wherein cross-objections have been filed by the Respondent as decree has not been passed u/s 12(1)(f) of the Act.

Learned Counsel for the Appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserves to be set aside. It is submitted that since the entire rent was deposited by the Appellant, therefore, no decree could have been passed against the Appellant u/s 12(1)(a) of the Act. It is submitted that the ground u/s 12(1)(a) of the Act was not available to the Respondent as the arrears of rent was tendered by the Appellant to the Respondent in compliance of demand notice. It is submitted that the appeal filed by the Appellant be allowed and the impugned judgment passed by the learned Courts below be set aside.

Learned Counsel for the Respondent submits that after due appreciation of evidence learned Courts below has rightly held that no rent was tendered by the Appellant to the Respondent through Money Order. It is submitted that in the facts and circumstances of the case, ground u/s 12(1)(a) of the Act was available to the Respondent. It is submitted that since there was no dispute regarding rate of rent and also arrears of rent, therefore, it was incumbent upon the Appellant to deposit the rent as per Section 13(1) of the Act. It is submitted that since the compliance of Section 13(1) of the Act was not made, therefore, learned Courts below has rightly passed the decree against the Appellant u/s 12(1)(a) of the Act. So far as setting aside of decree u/s 12(1)(f) of the Act is concerned, learned Counsel submits that decree which was passed by the learned trial Court has been set aside by the learned Appellate Court only on the ground that the Appellant is an old man. It is submitted that this cannot be a ground for dismissal of the suit filed u/s 12(1)(f) of the Act. For this contention reliance is placed on a decision in the matter of Dr. Sudhir Tiwari Vs. Smt. Bhagwanti Devi Issrani, wherein this Court has held that in a case where Plaintiff required the accommodation let out to the Defendant for bona fide necessity to start her business, old age will not come in the way to start business. It is further held that bona fide need has to be judged objectively by the Court. On the strength of aforesaid position of law and the facts and circumstances of the case, learned Counsel submits that the appeal filed by the Appellant be dismissed and the cross-objections filed by the Respondent be allowed and the decree be also passed u/s 12(1)(f) of the Act.

From perusal of the record it is evident that both the Courts below have decreed the suit filed by the Respondent u/s 12(1)(a) of the Act. Appellant intends to avoid the decree on the ground that rent was sent by the Appellant to the Respondent repeatedly by money order of which the documents are on record. Notice is dated 23-1-2001 which was duly served on 10-2-2001 and as per the law the rent is required to be sent within a period of two months. Ex.P.29 was the document which was taken into consideration by learned Courts below while passing the decree in favour of Respondent. From perusal of document Ex.P/29, it is evident that the money order was sent on 18-4-2001 while money order ought to have been sent on or before 10-4-2001 as the notice was duly served by the Appellant on 10-2-2001. Since rent was not sent by money order within two months, therefore, it cannot be said that ground u/s 12(1)(a) of the Act was not made out. Even otherwise also it is not enough for a tenant to avoid the decree u/s 12(1)(a) of the Act by saying that rent was sent by money order which was refused by landlord. In the matter of Atma Ram Vs. Shakuntala Rani, wherein Hon''ble Apex Court has observed that ''in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision. The Delhi Rent Control Act prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by Sub-section (2) of Section 27. There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default.

After taking into consideration all the facts and circumstances of the case, this Court is of the opinion that no illegality has been committed by learned Courts below in holding that Appellant is entitled to get the suit accommodation vacated from the Respondent u/s 12(1)(a) of the Act as neither rent was tendered by money order within two months nor deposited with Rent Controlling Authority. So far as bona fide requirement is concerned, after due appreciation of evidence learned appellate Court found that keeping in view the age of Appellant which was 75-77 years and accommodation is situated at Indore while Respondent is resident of Dhamnod which is 75 kms. away from Indore, it appears that requirement of Respondent is not bona fide. This Court is of the opinion that finding recorded by learned Courts below requires no interference. In view of this, the appeal filed by the Appellant stands dismissed and the cross-objection filed by the Respondent also stands dismissed. Since the Appellant is in occupation of accommodation, therefore, to save the Appellant from the peril of eviction, it is made clear that the decree passed by learned Courts below against the Appellant shall not be executable for a period of six months, provided that Appellant furnishes an undertaking on affidavit within a period of four weeks to the effect that Appellant shall vacate the suit accommodation on or before 31-12-2010 peacefully and shall also comply with the money part of the decree within the said period as mentioned above and shall deposit the current rent as per law, failing which the decree shall be executable forthwith.

No order as to costs.