Sunita vs Smt. Raziya

Heard.

The appellant/tenant has preferred this second appeal under Section 100 of the CPC, challenging the judgment and decree dated 12.01.2011, passed

by learned Civil Judge, Class-I, Multai in Civil Suit No.13-A/2007 and judgment dated st 31.10.2015 passed by learned 1 ADJ, Multai passed in Civil

Appeal No.5-A/2012 wherein the suit filed by the plaintifflandlord was allowed by learned trial Court and affirmed by the first appellate Court.

The facts, giving rise to filing of this appeal in short, are that the defendant/tenant/appellant has obtained the suit premises on rent. The suit premises

was being used by the appellant tenant for running a shop. It is admitted by the defendant/tenant that the suit premises was let out on rent at the rate

of Rs.600/- per month, though the landlord/plaintiff/respondent claimed it to be Rs.700/- per month. The plaitniff appellant claimed that there was non-

payment of rent despite several assurance. The defendant/tenant did not pay the rent. On 02.11.2005 the tenancy was closed. When the plaintiff

asked to vacate the premises, it was not vacated nor the rent was paid. The written notice was served. The defendant on 01.02.2006 replied the

notice and stated that the plaintiff wanted the tenanted premises to be vacated illegally. The plaintiff sought the premises on bona fide need and for

default of payment of rent from 02.12.2004 till 01.06.2006.

The defendant/tenant denied all the averments andclaimed that the plaintiff requested the husband of the defenant to invest some money for

construction of the premises. He spent about Rs.2 Lacs which was to he adjusted in rent . The plaintiff filed the suit on the false documents. The

defendant is the tenant since 1997 and has been depositing rent at the rate of Rs.600/- per month. However, the plaintiff never issued any receipt. In

March, 2006, the plaintiff received Rs.5,000/- from the defendant. There was no demand of any rent neither the plaintiff was having any right to rent,

nor compensation, nor the plaintiff is entitled to vacate the house.

On these averments, learned trial Court framed issues andvide judgment and decree dated 12.01.2001 held that the defendant is the tenant of the

plaintiff landlord. The defendant failed to deposit the arrears of rent. Therefore, he is liable to be evicted the premises. Learned trial Court awarded

the rent from 02.12.2004 at the rate of Rs.700/(Rupees Seven Hundred only) per month and directed to handover the possession of the shop within

three months.

The defendant tenant filed Civil Appeal No.05-A/2012st wherein the 1 ADJ vide judgment and decree dated 31.10.2015 affirmed the judgment and

decree passed by learned trial Court holding that the defendant/tenant was under obligation to deposit the rent. If the plaintiff was not demanding the

rent and was not issuing the receipts, the defendant ought to have filed an application under Section 13 (2) of the MP Accommodation Conrol Act but

no such averment was made. That he deposited rent at the rate of Rs.600/- per month with the permission of the Court but this does not indicate that

the rent of Rs.600/- per month was determined. This default would entitle the landlord plaintiff to obtain decree of eviction. It is also observed that

there has been irregularity in depositing the rent. Rent of few months th was deposited on 15 of the running month whereas under Section 13 (1) of

the MP Accommodation Control Act the th tenant ought to have deposited the rent on or before 15 of every running month. Default of the same

entitles the plaintiff landlord for a decree of eviction. Under protest, the appellant could have deposited the amount of rent but no such deposit was

made. An application was submitted by the tenant/defendant on 23.12.2006 under Section 13 (1) of the MP Accommodation Control Act. The same

was decided on 07.02.2009. The learned trial Court allowed the tenant defendant to deposit the arrears of rent in three instalments and also ordered to

deposit the rent for running months th before 15 of each month. It is also held that arrears of rent deposited till 07.02.2009 was not deposited in total at

the rate of Rs.700/- but the rent was deposited at the rate of Rs.600/- per month. Learned first appellate Court also found the appellant tenant

committed the default of depositing the rent. Therefore, learned first appellate Court affirmed the judgment and decree passed by learned trial Court.

The defendant/tenant preferred this appeal challenging thefindings of the Courts below on the grounds that learned courts below committed illegality

by not relying the evidence and documents on record. The husband of the plaintiff/respondent borrowed a sum of Rs.2 Lacs agreed between them

and decided to be adjusted in future monthly rents which the trial Court did not consider. The appellant/ tenant was regularly paying the monthly rent.

The respondent/plaintiff did not file any application under Section 13 (6) of the MP Accommodation Control Act regarding nondeposit of the arrears of

rent and to strike out the defence. Even both the Courts below failed to appreciate this fact. The Courts below committed gross error of law by

passing the judgment and decree of eviction on the grounds which were not pleaded. Therefore, the judgment and decree deserve to be reversed.

Courts below ignored the pleading and passed the decree of eviction for default of rent under Section 12 (1) (a) of the MP Accommodation Control

Act which is not pleaded at all.

The appellant further claimed that the landlord plaintiffsought a decree of eviction on the basis of bona fide need but no such issue has been framed

in this regard. Issue of default of rent under Section 12 (1) (a) of the MP Accommodation Control Act was not pleaded. Therefore, no decree could

have been passed. The first appellate Court committed error in not appreciating the documents on record and affirmed the judgment and decree

passed by learned trial Court. The plaintiff witness No. 1 in her statement admitted that since 2007 the defendant has been paying the rent. She has no

knowledge about the appellant's not paying the rent but the rent was being collected by her husband. Therefore, the finding of the Courts-below is

peverse. The appellant was never asked or demanded rent for the said period by the landlord. Therefore, the finding of the Court below is perverse or

erroneous. The trial Court granted the decree of eviction on the ground of bona fide need but no evidence on this issue has been led. Hence, the

eviction is contrary to the pleading. Notice was issued to the tenant appellant on 01.03.2006 and suit was filed after five months from the date of

notice, therefore, the suit is barred by limitation.

This Court vide order dated 10.02.2017 admitted theappeal on the following substantial questions of law:

(1) Whether eviction decree could have been passed under Section 12 (1) (a) of the MP Accommodation Control Act, 1961 once the default in

payment of rent was condoned by the Court, in view of the law laid down by this Court in the case of Laxmi Narayan and Another v. Ajendra Kumar,

2007 (2) MPLJ 36 ?

(2) Whether the decree for eviction under Section 12 (1) (a) of the MP Accommodation Control Act, 1961 could have been passed without deciding

the issue of quantum and rate of rent ?

The evidence available on record show that learned trialCourt erred in framing the issue with regard to default of rent. The order dated 07.02.2009

by which learned trial Court decided the application under Section 13 (1) of the MP Accommodation Control Act filed by the defendant/tenant stating

that the rent was Rs.600/- per month and the defendant paid Rs.5,000/- to the plaintiff. The arrears of rent may be permitted to be paid in instalments.

Arrears of rent was calculated and directed to be deposited in three instalments. However, learned trial Court did not observe that the provisional rent

would be Rs.700/- per month. On 20.04.2011, learned trial Court held that despite the order dated 07.02.2009, the rent was not paid at the rate of

Rs.700/- per month. Therefore, held the defendant/tenant to be the defaulter and struck off the defence.The appellate Court held that the defenant has

never filed any application for fixing the rent under Section 13 (6) of the MP Accommodation Control Act. The application for amendment under

Order 6 Rule 17 of the CPC was filed on 06.01.2012 after the evidence of both the parties was closed and case was listed for final hearing.

Therefore, learned trial Court dismissed the same wherein the plaintiff landlord sought certain amendment for clarifying the bona fide need.

On behalf of the respondent plaintiff reliance has beenplaced in the case of Sushma v. State, 2011 (2) MPLJ 39 and it is claimed that since the

decree of eviction is passed against the defendant under Section 12 (1) (a) of the Act, the respondent is not entitled for any amount of compensation.

Learned counsel for the respondents has placed relianceon the decision in the case of Sushila Shrivastava (Smt.) v. Nafees Ahmed Qureshi and

Another, (2001) 2 MPLJ 613 in which it has been observed that this Court earlier held that â€Âœon amended Section 13, coming into force, it

applies to appeals pending and the tenant is obliged to comply with the amended provisions during the pendency of the appeal also and to deposit the

rent punctually on month to month basis. The second proposition laid down is that if the application for condonation of delay is not filed, the Court is

justified in refusing to exercise the discretion to condone the delay. Thirdly, if an application has been filed seeking condonation of delay of the default

committed before the Courts below, can be entertained even in second appeal.

In the above case [Sushila Shrivastava (smt.)(supra)]there was finding of the Courts below that the tenant did not pay the rent for certain period

and the tenant forged the receipts for the said period and that he had committed default in payment of rent. Therefore, this Court had given the verdict

that the tenant was directed to vacate the suit premises within four months and furnish an undertaking to hand over the peaceful possession and to pay

the rent by that day.

The present is not the case in similar line.

Learned counsel for the respondents has also placedreliance on the decision in the case of Sunil Kulkarni v. Jagdishsingh, 2010 (1) MPLJ 427,

wherein it has been held that the tenant takes the risk of suffering an order of eviction by raising a dispute in regard to the amount of rent payable by

him while admitting the rate of rent and not making payment or deposit. In this case, the rate of rent payable by the tenant was not in dispute and the

quantum of arrears of rent was not paid/deposited and the tenant pleaded that arrears of rent or adjusted the same towards the amount payable by the

landlord or in the discharge of his liability, the tenant succeeds or fails on his plea being accepted or rejected in that behalf by the Court, in such a case

subsection (2) of Section 13 of the MP Accommodation Control Act is not attracted because the plea taken by the tenant has to be adjudicated by a

full-fledged trial and not in a summary enquiry postulated for fixing a reasonable provisional rent in relation to the accommodation in question.

In the present case the tenant/appellant has disputed therent and pleaded that the rent is Rs.600/- per month and not Rs.700/- as claimed by the

plaintiff/ respondent. She has also deposited the rent at the rate of Rs.600/- per month though not before the due date.

In the case of Chhoglal v. Idol of Bhagwan Shri Satyanarayan through Pujari Kamaldas Guru, Narayandas Bairagi, 1975 SCC Online MP 47=

AIR 1976 MP 5 (FB) it has been held by the Full Bench that â€Âœif the dispute has been raised in the written statement, the Court cannot

refuse to determine provisional rent, on the ground that a separate application has not been made. There are certain observations in 1970 MPLJ 902

proposition No. 1 at p. 907 = (AIR 1971 Madh Pra 104 at pp. 107, 108) (supra) that it is not enough for the tenant to raise the dispute and in addition

he must invite the attention of the Court to the dispute and the Court must be asked to fix a reasonable provisional rent. In our opinion, these

observations do not lay down the law correctly as they add certain requirement in sub-section (2) which are not there. If the tenant dispute the rate

and amount of rent in his written statement, as was done in the instant case, there arises a dispute within the meaning of sub-section (2) casting a duty

on the Court to fix a reasonable provisional rent. The Court is expected to go through the pleadings of the parties for eliciting the matters in dispute

and it is not necessary for the tenant to specifiably draw the attention of the Court that he has disputed the amount or rate of rent. Similarly, it is not

necessary for him to specially ask for fixation of provisional rent. Raising of a dispute in the written statement by itself amount to an implied request, if

any request is at all needed, for fixation of provisional rent.â€ÂÂ​

In the present case also the defendant/tenant has raised a plea at paragraph 10 of the written statement that monthly rent was only Rs.600/-. The

plaintiff landlord has shown it to be Rs.700/- per month. Though the plaintiff has filed the â€ÂœKirayanamaâ€Â (Exhibit P-1) in

which the rent has been shown as Rs.700/- per month, but in the order dated 20.04.2011 when the application under Section 13 (6) of the MP

Accommodation Control Act bearing I.A. No.2 was decided by the trial Court, no provisional rent was fixed by the trial Court. The trial Court

observed that the plaintiff claimed rent at the rate at the Rs.700/- per month. After the order dated 07.02.2009, the defendant is paying Rs.700/- per

month and the defendant/tenant deposited amount of Rs.2000/- each on 10.08.2009 as well as on 12.11.2009 but th failed to deposit the same before

15 of each running month. Therefore, the defence of the tenant was struck off. On perusal of the order dated 07.02.2009, it is clear that the Court

discussed various aspects and different receipts and held that the defendant want to deposit the arrears of rent in instalments. Discussing the rent

receipts from 08.12.2006 till 22.10.2006, it was observed that the rent was deposited at the rate of Rs.600/- per month but the trial Court did not fix

any provisional rent, but allowed the defendant to deposit the arrears of rent in three instalments and to produce the receipts in the Court and it was

directed that in future the th same be deposited by 15 of each running month. It seems that learned trial Court erred to give a definite finding with

regard to fixing a provisional rent.

On the anvil of the law laid down by the Full Bench in thedecision in the case of Chhoglal (supra), if the factual matrix of the present case is

analysed, the defendant/tenant has certainly raised a dispute with regard to rent or rate but the trial Court erred in not giving a definite finding about

the rent but has subsequently observed that rent is Rs.700/- per month and subsequently passed the order of striking off the defence. In the opinion of

this Court, in the light of the above discussion, the same is not correct. When a dispute is raised by the defendant/tenant as referred in subsection (2)

of Section 13 of the MP Accommodation Act in the written statement, it is not necessary for him/her to make an application inviting the attention of

the Court to specific dispute asking the Court to fix provisional rent. When no provisional rent has been fixed, subsequently the order under Section 13

(2) of the MP Accommodation Control Act to strike off the defence is not correct in the eyes of law.

Substantial question of law No.(1) can only be answeredafter the provisional rent is fixed so that the default can be ascertained. Once the rent is

ascertained then only question of condonation of default arises. Substantial question of law No. (2) is answered in the negative.

Hence, this appeal is allowed on the following terms:

(i) The judgments and decree dated 12.01.2012 and 31.10.2015 passed by the Courts-below as well as the order dated 20.04.2011 by which the

defence of the defendant/tenant was struck off, are set aside.

(ii) The defendant/tenant would continue to deposit the ratetill the decision of the case.

(iii) Learned trial Court shall first decide the provisional rentand then proceed with the case in accordance with law.

(iv) The matter is remitted to the trial Court for deciding the matter afresh. The parties are directed to mark their appearance before the trial Court

(Civil Judge, Class-I, Multai) on 07 May, 2018.

Office is directed to send back the record along with a copy of this judgment immediately to the trial Court.