Shri Brijmohan Lal vs Smt. Daljit Kaur

Fakhruddin, J.—Heard on I.A. No. 712/2001 application u/s 13 of the M.P. Accommodation Control Act filed by the respondent for dismissal of the appeal.

In this application, the prayer made is quoted below :--

"It is therefore prayed that the above appeal may be dismissed with cost."

This appeal was admitted on 6-1-1995. The order of admission is pertinent and is quoted below :--

"The question involved in this appeal is regarding the meaning and definition of the word "accommodation" as mentioned in Section 2 of the M.P. Accommodation Control Act, 1961.

In this case, learned Counsel for the appellant Shri Ravish Agrawal submitted that there are two divergent opinions - one of this Court in 1969 MPLJ 391 Shrikisandas v. Radhabai, where this Court has held the vacant land as accommodation whereas the similar provision was interpreted by the Calcutta High Court in AIR Calcutta 398 (Burdwan Real Properties Pvt. Ltd. v. Lal Behari Kapuria), to be not including the vacant land or plot.

Prima facie the word "accommodation" shall not include in its fold the vacant plot as the definition calls no fiction. No fiction has been created by the legislation. The matter is worth consideration.

Admit.

Issue notice, P.F. be paid within a week.

Till further orders of this Court, the appellant shall not be dispossessed from the accommodation in question. Certified copy be given on usual payment."

Learned Counsel for the respondent submitted that the appellant has violated the mandatory provision of Section 13 (1) of the M.P. Accommodation Control Act, 1961, and therefore, the appeal be dismissed.

Learned Counsel for the appellant on the other hand submits that in this case defence has not been struck out and the application is for dismissal of the appeal. He further submits that even in a case where the defence has been struck out, provisions of Section 13 (6) of the M.P. Accommodation Control Act provides that where the defence is struck out, Court shall proceed with the hearing of the suit, appeal or proceedings, as the case may be. He further submits that the defence struck of u/s 13 (6) of the M.P. Accommodation Control Act is with respect to the defence available u/s 12(1) of the Act. It has no application to the defence, if any, available under the general law. He therefore, submits under the circumstances, the appeal has to be heard and it cannot be dismissed.

Section 13 (1) and Section 13 (6) of the M.P. Accommodation Control Act have been read and are quoted below:--

"13. When tenant can get benefit of protection against eviction.--

(1) On a suit or any other proceeding being instituted by a landlord on any of the grounds referred to in Section 12 or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice or appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be.

(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceeding, as the case may be."

In support of his contention, learned Counsel for the respondent relied on the decisions in the case of Gurbachan Singh Vs. Vimlabai, , Smt. Nathibai Vs. Maheshwari Samaj Ramola Trust and Others, Madho Parsed v. Nathuram, reported in 1997(1) MPWN 11 , Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others, , Krishnalal Buxi v. Sudarshan Pani , Mariyam Begum Vs. Basheerunnisa Begum and Others, , G.C. Kapoor Vs. Nand Kumar Bhasin and Others, , Fakir Mohd. v. Sita Ram, reported in : (2002) 1 SCC 741, Vijay Amba Das Diware and Others Vs. Balkrishna Waman Dande and Another, , Parmeshwar Parsed Daruka v. Parmeshwari Devi, reported in (2000) 10 SCC l93 , Jamnabai Ramchandra Vadekar Vs. Modern Auto and Machinery Agency, , Ouseph Mathai and Others Vs. M. Abdul Khadir, and Ashok Kumar Gupta Vs. Vijay Kumar Agrawal, . The list of cases has been supplied by the Counsel.

Learned Counsel for the appellant relied on the decision in the case of Smt. Krishnabai v. Smt. Laxmibai, reported in 1970 MPLJ 674 and Kamlesh v. Abdul Hakim, reported in 1982 MPRCJ 35, a Full Bench decision in 5.5. Harischandra Jain v. Capt. Inder Singh Bedi, reported in 1977 JLJ 312 and Gopal Das v. Surajmal reported in 1988(II) MPWN 83 and contended that the appeal is required to be heard and it cannot be dismissed.

While answering to a reference involving the same question of law, a Division Bench of the High Court of M.P. in Smt. Krishnabai (supra), observed as under :--

"If the defence is struck out u/s 13 (6) in the Appellate Court, the Appellate Court will still have to see whether on the plaintiffs evidence produced in the Trial Court, a ground u/s 12 has been made out. The defendant will be heard on that point to the limited extent of showing that the plaintiffs evidence is not enough to prove any ground u/s 12, but his written statement and the evidence on that aspect of the case will not be considered."

The question is whether the appeal can be dismissed or it has to be heard.

So far as the authorities cited by the learned Counsel for the respondent are concerned, they are relating to compliance of Section 13 (1) of the M.P. Accommodation Control Act, whereas in the application prayer made is for dismissal of the appeal.

In view of the language used in the Section 13 (6) of the M.P. Accommodation Control Act, the appeal has to be heard.

Having thus considered the facts and circumstances of the case and material on record, in the opinion of this Court, the appeal cannot be dismissed. It has to be heard in accordance with law.

The application I.A. No. 712/2001 is disposed of.