Shabnam Karim vs Ram Kumar @ Mahendra Kumar Mishra

T.P. Sharma, J.—By this second appeal u/s 100 of Civil Procedure Code, 1908 (in short ''the Code'') appellant has challenged the legality and propriety of the judgment and decree dated 13-12-2010 passed by District Judge, Bilaspur (CG), in Civil Appeal No. 4-A/2010 affirming the judgment and decree of eviction and mesne profit against appellant dated 4-12-2009 passed by 1st Civil Judge Class I, Bilaspur in Civil Suit No. 5-A/2008. Present second appeal has been admitted for consideration on the following substantial question of law:--

Whether both the Courts below were justified in passing a decree against the appellant u/s 12 (1) (a) of the C.G. Accommodation Control Act, 1961 in the light of the fact that rate of rent was in dispute and the Trial Court has not fixed any provisional rent u/s 13 (2) of the C.G. Accommodation Control Act, 1961?

For decision of aforesaid substantial question of law, detail pleading of the party are not required to be considered.

As per allegation made in plaint by respondent, rate of rent was Rs. 850/- per month but as per allegation made in written statement by appellant, rate of rent was Rs. 700/- per month.

Mrs. Hamida Siddiqui, Advocate for the appellant and Mr. Avinash Mishra, Advocate for the respondent are heard.

Both the judgments impugned and record of both the Courts below perused.

Learned Counsel for the appellant submits that in case of any dispute relating to amount of rent, means rate of rent or arrears of rent payable to the landlord, fixation of reasonable and provisional rent is sine qua non for Court and if reasonable and provisional rent is not fixed then no decree u/s 12(1) (a) of the C.G. Accommodation Control Act, 1961 (in short "the Act") can be granted in terms of sub-section (5) of Section 13 of the Act.

Learned Counsel for the appellant further submits that during course of fixation of provisional rent, the provisions of sub-section (1) of Section 13 of the Act is arrested therefore, appellant was not under obligation to pay rent although, he has paid admitted rent of Rs. 700/- regularly.

Learned Counsel for the appellant placed reliance in the matter of Jivrambhai and Another Vs. Amar Singh, ), in which High Court of Madhya Pradesh has held that Section 13 (2) of the Act provides a machinery for assuring the defendant the special right u/s 12 (3) of the Act and it affords protection to the tenant from the consequences of Section 13 (6) of the Act, i.e.. during pendency of dispute relating to amount of rent or rate of rent defence of tenant cannot be struck off.

On the other hand, learned Counsel for the respondent opposed the second appeal and submits that virtually, there was no dispute relating to rate of rent on the basis of documentary and oral admission of appellant, Court has arrived at a finding that rate of rent was Rs. 850/- and not Rs. 700/-. Present appellant has failed to pay monthly rent and arrears of rent regularly, he was habitual defaulter therefore, both the Courts below have rightly decreed the suit.

learned Counsel for the respondent placed reliance in the matter of Gangadevi and Others Vs. Rukmanidevi, in which High Court of M.P. has held that in case of regular default in payment of rent by tenant, Court was justified to decree the suit u/s 12 (1) (a) of the Act and also held that where rate of rent is admitted and the quantum of rent is disputed then tenant is required to deposit rent at the admitted rate and to comply the second limb of Section 13 (1) of the Act.

learned Counsel for the respondent further placed reliance in the matter of Jamnalal and Others Vs. Radheshyam, ), in which Supreme Court has held that in case of admitted rent and dispute relating to arrears of rent, tenant is under obligation to pay the admitted rent in terms of Section 13 of the Act and in terms of second limb of Section 13 (1) of the Act.

While decreeing the suit 1st Civil Judge Class I, Bilaspur has decided issue No. 1 as proved which is as follows:--

Trial Court gave detail finding but there was dispute relating to rate of" rent till passing of judgment and decree by the Trial Court, provisional rent as required u/s 13 (2) of the Act has not been fixed. As per sub-section (2) of Section 13 of the Act, in case of any dispute as to amount of rent payable by the tenant, Court is required to fix provisional rent and if tenant make deposits or pays as required by sub-section (1) or sub-section (2) of the Act (provisional rent) then decree or order would not be possible on the ground of default in payment of rent by the tenant. Sub-sections (2) and (5) of Section 13 of the Act reads as follows:--

When tenant can get benefit of protection against eviction--

(1)*** ** ***

(2) If in any suit or proceeding referred to in sub-section (1) there is any dispute as to the amount of rent payable by the tenant, the Court shall, on a plea made either by landlord or tenant in that behalf which shall be taken at the earliest opportunity during such suit or proceeding, fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provisions of sub-section (1) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage.

(3) *** *** ***

(4)*** *** ***

(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.

Admittedly, in the present case, provisional rent has not been fixed by the Court. There was dispute relating to rate of rent and appellant has raised dispute in his written statement, in these circumstances, in accordance with sub-section (2) of Section 13 of the Act, Court was required to fix a reasonable provisional rent and after fixation of such rent, tenant was under obligation to pay rent and arrears in accordance with such provisional rent but in the present, case, no provisional rent has been fixed. In absence of fixation of such provisional rent, it was not possible for appellant to comply the provisions of sub-section (1) of Section 13 of the Act for saving herself from eviction.

While dealing with the question of applicability of provisions of Section 13 (1) of the Act, in case of Anandilal Vs. Shiv Dayal Pandey, in which High Court of Madhya Pradesh has held that operation of sub-section (1) of Section 13 of the Act arrested till dispute u/s 13 (2) of the Act is decided.

Combined reading of Section 13 (1), 13 (2) and 13 (5) of the Act clearly shows that till fixation of provisional rent in case of any dispute relating to rent payable by the tenant, operation of sub-section (1) of Section 13 of the Act arrested till fixation of reasonable provisional rent and if it is not fixed till final judgment then tenant cannot be compelled to pay rent as claimed by landlord or in case of non-compliance. Decree in terms of Section 12 (1) (a) of the Act on the ground of arrears of rent cannot be legally possible. Both the Courts below have decreed the suit without fixation of provisional rent, which was not legally possible and thereby committed an illegality. Consequently, substantial question of law formulated for decision of this second appeal is decided as negative. On the basis of decision on substantial question of law formulated for decision of second appeal, second appeal deserves to be allowed and is hereby allowed. Judgment and decree for eviction granted u/s 12(1) (a) of the C.G. Accommodation Control Act, 1961 is hereby set aside. Respondent is entitled for the rent paid by appellant.

Parties shall bear cost of appeal.

Advocate fee if certified as per schedule or to the extent of certificate which ever is less. Decree be drawn up accordingly.