Ramgopal Sitaram vs Pooranmal Goyal (Deceased) through L.Rs. Dhapoobai and others

Rampal Singh, J.

The applicant-defendant has preferred this civil revision u/s 115 of the CPC against the order passed by Fourth Civil Judge Class II, Gwalior in case No. 144-/a/77 passed on 8-11-1977.

The non-applicant brought a suit against the applicant in the Court of Fourth Civil Judge Class II, Gwalior for eviction under the provisions of sections 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act, 1961 (hereinafter called as ''Act''). The landlord alleged that the applicant tenant, pays? Rs. 30/ - per month towards the rent. He is in arrears of rent from 1-2-1977 which was not paid by the tenant in spite of several demands and thus he is a defaulter. The applicant - defendant denied the claim preferred by the landlord and maintained that as the water supply has been cut off Rs. 3/- should be deducted from the agreed rent and thus he raised a dispute u/s 13(2) of the Act. Meanwhile, he deposited the rent to save his skin from the ground contained in section 12(1)(a) of the Act. The trial Court relied upon the case of Roopchand 1976 MPWN 81, held that the tenant by depositing the arrears of rent has waived his objection raised in the written statement i.e. the dispute with regard to the amount of rent payable as described in section 13(2) of the Act.

The applicant tenant has invoked the revisional jurisdiction of this Court against this impugned order. This Court in Roopchand (supra) held that having deposited the entire arrears of rent, the dispute if any, raised earlier by the defendant, was waived. So, there was no question of fixing any provisional rent. This Court in Roopchand based this ratio drawn from the case of Chhogalal 1975 JLJ 779. I anxiously examined the case of Chhogalal and found to my surprise that in that case it was only held that operation of sub-section (1) of section 13 of the Act, 1961 is arrested when a dispute as is referred to in sub-section (2) is raised by the defendant tenant in his written statement and it is not necessary that he should make an application inviting the attention of the Court to the specific dispute and asking the Court to fix the provisional rent. In Chhogalal (supra) it was not the proposition what has been reported in Roopchand (supra). This Court again in the case of Mani Shankar Dube 1980 (ii) MPWN 49, held that once a dispute is raised u/s 13(2) in the written statement by the tenant it shall not be deemed to have been waived and there can be no waiver of a right under a statute. I would, therefore, prefer to place reliance upon Mani Shankar Dube (supra) rather than Roopchand (supra) reason being my this view gets support from a Privy Council judgment, AIR 1937 114 (Privy Council) . In this case, their Lordships of the Privy Council have held:-

In case of a Statute enacted for the benefit of a section of the public, that is, on grounds of public policy, where the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the party suingseeks to do, it is not open to the opposite party to set up an estoppel to prevent it. This conclusion must follow from the circumstance that an estoppel is only a rule of evidence which under certain special circumstances can be invoked by a party to an action; it cannot therefore avail in such a case to release the party suing from an obligation to obey such a statute, nor can it enable the opposite party to escape from a statutory obligation of such a kind on his part. It is immaterial whether the obligation is onerous or otherwise to the party suing. The duty of each party is to obey law.

To conclude, after raising a dispute u/s 13(2) of the Act, if the tenant deposits the rent u/s 13(1) of the Act in order to save himself from the ground of eviction mentioned in S. 12(1)(a) of the Act, then his act of depositing the arrears of rent does not amount to waiver of his right to raise the dispute. Therefore, it was the bounden duty of the trial Court to have followed the dictates of the provisions contained in S. 13(2) of the Act. Because S. 13(2) specifically lays down that the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub-section (1) till the decision of the suit or appeal The trial Court, therefore, should have decided the dispute raised u/s 13(2) of the Act and then should have proceeded to decide the suit pending before it.

Consequently, the revision petition is allowed and the impugned order is set aside.

Before parting, I would like to observe that this is an old landlord tenant dispute and needs immediate disposal. The trial Court should make an effort to dispose it of as early as possible. However, the parties shall bear their own costs.