Vinay Kumar and Others vs Radheshyam and Others

A.K. Shrivastava, J.

This second appeal has been preferred by plaintiff landlord against the judgment and decree of the two courts below dismissing his suit of eviction.

The plaintiff filled suit for eviction on the grounds envisaged u/s 12(1)(a)(d) & (h) of the M.P. Accommodation Control Act, 1961 (in short the Act). The defendant resisted the suit by filing written statement. The trial Court after framing issues dismissed the suit in toto.

The plaintiff preferred appeal before the Appellate Court which has also been dismissed by the impugned judgment and decree. Hence this appeal.

This Second Appeal has been admitted by this Court 24.7.1990 on the following substantial questions of law:

Whether having regard to proviso to S. 12(3) of the M.P. Accommodation Control Act, 1961 the lower Courts committed legal error in extending to respondent-tenants the benefits of sub.S.3 of S.12 of the Act?

Whether the finding of the lower Court against the landlord appellant for ground contained under Sec. 12(1)(d) of the Act suffers from misleading of evidence and is for that reason likely to be set aside ?

Regarding substantial question of law No. 1:

It has been contended by learned counsel that earlier also the suit was filed by plaintiff on the ground of Section 12(1)(a) of the Act, however that suit was dismissed and the first appeal and second appeal was also dismissed. The learned counsel has invited my attention to Ex. D-6 which is a certified copy of this Court passed in Second Appeal No. 222/71 decided on 29.7.1976 wherein by giving benefit to tenant u/s 12(3) and 13(3) of the Act, the suit of tenant was dismissed. The learned counsel has invited my attention to paragraph 34 of the judgment of the trial Court and has contended that no statement of depositing the rent was submitted by the tenant after 10.8.79. The trial Court has simply stated that defendant has deposited the rent regularly. However, there is no finding of the Court below holding that the rent was deposited regularly in terms of Section 31 of the Act. The finding of Appellate Court in that regard from para 8, 9, 13 and 18 is also perused. Since the tenant had already taken the benefit of Section 12(3) and 13 (5) of the Act in the earlier suit, according to me, he is not entitled to take the benefit again. In this context, the decision of Apex Court in the case of Imdad Ali Vs. Keshav Chand and Others, is quite relevant. It is well settled in law that the benefit of Section 12(3) and 13(5) of the Act is to be extended once. In that regard, proviso to Section 12(3) of the Act is quite relevant which reads thus:

Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months.

Thus, the substantial question of law No. 1 is answered accordingly and the plaintiff is entitled to a decree u/s 12(1) (a) of the Act.

Apart from this, learned counsel has invited my attention to an application I.A. No. 1403/97 which has filed u/s 13(6) of the Act and has contended that during the pendency of this appeal the respondent-tenant has committed several defaults in depositing the rent. On going through the application, it is revealed that from 17th September, 1987, the defendant has not deposited the rent. The respondent has not filed any reply to this application nor submitted any documents in order to demonstrate that the rent is regularly paid in terms of Section 13(1) of the Act. This Court on 15th May, 1997 directed to consider this application at the time of final hearing. Since there is no reply to this application nor any receipt of rent is filed in order to demonstrate that the rent is regularly paid in terms of Section 13(1) of the Act, according to me, for this additional reason also the plaintiff is entitled to a decree of eviction. In this regard, I may profitably rely on the decision Sushila Shrivastava (Smt.) Vs. Nafees Ahmed Qureshi and Another, .

Shri Chhajed, learned counsel for appellants submitted that since the decree is being passed u/s 12(1)(a) of the Act, therefore, substantial question of law No. 2 need not be answered. The prayer is accepted and the substantial question of law No. 2 is not answered in the facts and circumstances.

Resultantly, this appeal succeeds and is hereby allowed, the judgment and decree passed by two Courts below is hereby set aside and the suit of plaintiff for eviction is hereby decreed with costs. Counsel fee Rs. 3000/-, if pre-certified.