Subhash Chaturvedi vs Hukum Chandra Agarwal

R.C. Lahoti, J.

The tenant has come up in appeal aggrieved by the judgments and decrees of the Courts below decreeing a suit for ejectment and recovery of arrears of rent based on the ground available u/s 12(1)(a) of the M. P. Accommodation Control Act, 1961.

The Plaintiff alleged the Defendant to be his tenant on a monthly rent of Rs. 115/- and in arrears w.e.f. 1-5-1975 which were not cleared inspite of service of demand-cum-quit notice. The Defendant does not dispute the receipt of the notice. He has contested the case on the ground that not he but his brother Ashok Kumar was a tenant of the Plaintiff who having not been joined as a party to the suit, the suit was not maintainable. The trial Court has found all the material averments made in the plaint proved and the pleas taken in written statement not proved. All the findings have been confirmed by the lower appellate Court.

Vide order dated 6-8-80, this Court admitted the appeal for hearing on the following substential question of law:

Whether, despite denial of the alleged relationship of landlord and tenant between the parties, it was incumbent upon the trial Court to fix reasonable provisional rent u/s 13(2) of the M. P. Accommodation Control Act, 61, as the same was disputed by the Defendant.

It is submitted by the learned Counsel for the Appellant that there were disputes raised within the meaning of Sub-sections (2) and (3) of Section 13 of the Act and those having not been resolved by an interim direction issued by the trial Court, the tenant/Defendant did not incur any obligation to deposit the alleged arrears and the rent falling due pendents lite, the whole of the operation of Section 13 of the Act was arrested as is the law laid down by this Court in Chhogalal v. Bhagwan Shri Satyanarain 1975 JLJ 779., and consequently, the suit for ejectment could not have been decreed. It is not disputed that the trial Court did not make a provisional order u/s 13 of the Act.

It is to be noted at the very outset that the plaint specifically alleges the Defendant to be a tenant; the Defendant does not dispute that the Plaintiff is not the landlord. What is disputed is that the denfendant is not a tenant and as such there is no existence of landlord tenant relationship between the parties. On these pleadings, it is to be seen whether or not there was a dispute raised within the meaning of Section 13 of the Act and whether or not the trial Court was obliged to make a provisional order.

In Inderlal v. Mahugibai and Ors. 1967 JLJ 31 . a Division Bench of this Court applying the law laid down in Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and Others, , Babulal Bhuramal and Another Vs. Nandram Shivram and Others, , and Raizada Topandas and Another Vs. Gorakhram Gokalchand, , summed up the law in following words:

Once a suit for ejectment, on any Of the grounds referred to in Section 12, is instituted, the provisions of Sub-section (1) of Section 13 operate against the Defendant, and the Court acquires jurisdiction to deal with any claim or question arising under any of the provisions of Section 13, no matter whether the relationship of landlord and tenant is admitted or denied by the Defendant. Section 13(1) does not say, or intend to say, that the plea of the Defendant will determine whether he is or is not liable to make any deposit under the provision. It proceeds on the basis that a suit by a person claiming to be a landlord has been filed against the person alleged to be his tenant on any of the grounds mentioned in Section 12. It is plaint from Section 12 that in a suit for eviction, founded on any of the grounds mentioned therein, the Plaintiff must allege that he is the landlord and that the Defendant is his tenant. Therefore, the word "tenant" used in Section 13(1) of the Act is "merely connotative of the description which the Plaintiff has given of the Defendant and means nothing more than "Defendant". It does not imply a Defendant who has been found to be a tenant by the Court.

Vide para 6, the Division Bench further observed:

In our judgment, the applicability of Section 13(1) of the Act is not Defendant in any way on the determination of the Court that the Defendant sued is a tenant of the Plaintiff-landlord. The liability of the Defendant to make deposit under that provision arises the moment a suit for eviction is filed against him by the Plaintiff landlord alleging that be is his (Plaintiff''s) tenant. It makes no difference to the applicability of Section 13(1) whether the Defendant admits the relationship of landlord and tenant or denies it.

In a latter Decision of a learned Single Judge in Asharam v. Bindrawan 1985 MPWN 153, held:

The applicant''s stand in the trial Court for escaping the mandate of Section 13(1) is indefensible, as it has been held in Inderlal v. Mahugibai 1967 JLJ 31, Mishrilal v. Annapurnabai 1976 MPRCJ 492. and Trilokchand v. Gopikishan 1981 JLJ S. N. 13., that a Defendant in an eviction suit cannot escape the rigour of Section 13(J) by denying the Plaintiff is his lessor.

So also in Nanak Singh v. Nemibai 1985 MPWN 467. learned single Judge of this Court held:

Section 13(6) of the Act provides that on the tenant''s failure to deposit or pay the amount as required by the section, the Court has the discretion to order the defence against eviction to be struck out. It is clear that the Defendant who denies his status as tenant and makes no payment or deposit as required by the section is not entitled to seek shelter under the defence against eviction which the Act makes available to a tenant on precondition of such payment or deposit. In fact such a person stands in no need of the protection designed for a tenant against the right of eviction made available to the landlord under the Act. It may be pointed out that provisions are not intended just for academic discussion but have a definite object to achieve. Looking to the scheme of the Act, the irresistible conclusion is that Section 13(2) and (3) do not contemplate the case of Defendant who disputes his position as a tenant and claiming that he is in possession of the premises in his own right as owner, does not comply with Section 13(1) of the Act. In such a situation the Court without passing any order u/s 13 (2) & (3) of the Act can in its discretion order the defence against eviction to be struck out. The view finds support in the decision in Keyalram v. Surjeetsingh 1981 MPRCJ 193., by G.P. Singh J., in which two earlier decisions one by J. S. Verma, J. in Mishrilal''s 1976 JLJ 12., case and the other by K. N. Shukla, J., in Trilok-chand''s 1981 JLJ 13., case have been relied upon.

[underlining by me]

The underlying scheme of Sections 12 (1) (a) 13 (2) & (3) of the Act appears to be beneficial, both the landlord and the tenant. The landlord must have his dues and should not be deprived of the return of his property merely because of an unwilling tenant or an unavoidable litigation. On the other hand, the tenant, often a person belonging to the weaker section of the society should not be made to suffer solely for economic stringency. If he has not been able to pay for any reason whatsoever and inspite of the service of demand-cumquat notice, let him have one pardon. He may deposit the arrears in the Court in the manner prescribed and earn an immunity from penalty of eviction. If he has a genuine dispute to be raised as to the quantum of arrears or the rate at which the rent is payable and/or as to the person or persons to whom the rent is to be paid he may raise a dispute, have it provisionally determined by the Court and comply with the provisionally order earning an immunity from eviction thereby. The provisions are meant to afford protection to a tenant who is conscious of his obligations and is willing to do equity to earn immunity. The provision is not intended to extend protection on false, frivolous and vexatious pleas being taken by the tenant.

If the tenant chases to rate a plea disputing the existence of landlord and tenant relationship, he is free to do so, but in that event the question of tenant taking resort to the provisions of Section 13 (2) & (3) of the Act would not arise. He would secceed by earning dismissal of the suit in toto because of his plea succeeded and the landlord'' averments being found to be false. He may even have exemplary costs awarded for he was unnecessarily, falsely or vexatious dragged into litigation. Just as a landlord-Plaintiff cannot file a suit u/s 12(1)(a) of the Act and compell the tenant to comply with Section 13 of the Act unless he alleged the Defendant to be his tenant so also a tenant/Defendant cannot take shelter under provisions of Sub-sections (2) & (3) of Section 13 of the Act without alleging a plea that the Plaintiff was his landlord

Section 13(3) of the Act contemplates a dispute as to the person or persons to whom the rent is payable. It does not contemplate a dispute being raised as to the person or persons by whom the rent is payable. The plea of the tenant/Defendant that no dues are outstanding against him did not also amount to raise in a dispute within the meaning of Sub-section (3) of Section 13 of the Act.

Inasmuch as the Defendant did not admit himself to be a tenant, the question of there being a dispute as to the amount of rent payable by him as tenant within the meaning of Section 13(2) of the Act also did not arise. In the facts and circumstances of the case, the trial Court was not at all called upon and obliged to fix a reasonable provisional rent and direct the tenant to deposit the same by making a provisional order.

The two courts below have concurrently found that the Plaintiff is a landlord; that the Defendant and not Ashok Kumar was a tenant; that the rate of rent was Rs. 115/- per month and that the Defendant was in arrears of rent w. e. f 1-5-75. It may be stated that till this day, the Defendant/Appellant has not come with an application clearing all arrears consistently with the judgments and decrees of the Courts below and seeking benefit of Section 12(3) of the Act. The tenant/Appellant has not learnt any lesson and chose to correct himself inspite of the judgments of the two Courts below.

For the foregoing reasons the appeal is held to be without merit and liable to be dismissed. It is dismissed accordingly. The tenant/appellant shall bear his own costs and pay that of the plaintiff/respondent throughout. If the tenant/appellant deposits all costs as also all arrears uptodate within a period of 15 days from today and furnishes an undertaking on affidavit to deliver peaceful possession of the premises to the plaintiff/landlord clearing the current arrears month by month, the decree under appeal shall not be available for execution for a period of six months from today. Failing this, the eviction decree shall be available for execution soon on expiry of 15 days.