Vipendra Singh vs Ratanchandra Jain & Another

This petition has been filed by the petitioner-defendant Vipendra Singh under Article 227 of the Constitution of India against the order dated

21.11.2019 as also the order dated 03.12.2019 passed in Civil Suit No.41-A/2013 by the 1st Civil Judge Class-II, District Shahdol (M.P.). Vide order

dated 21.11.2019 the learned Judge of the trial Court has allowed the application filed by the respondent-plaintiff under Section 13(6) of the M.P.

Accommodation Control Act, 1961 (for short ‘the AC Act, 1961’) and has struck out the defence of the petitioner-defendant on account of

non-payment of rent and vide order dated 03.12.2019, the review application of the said order has also been dismissed.

In brief, the facts of the case are that the father of the petitioner-defendant namely late Narayan Singh came in possession of the disputed premises

on rent from its earlier owner Tulsi Maharaj for a monthly rent of Rs.12/- only on 01.05.1960. After the death of Tulsi Maharaj his wife namely Choti

Bhagotiya became the owner of the land and she also executed a rent agreement with the petitioner for a sum of Rs.30/- per month.

It is further the case of the petitioner that the present respondent-plaintiff filed a civil suit under Section 12 (6) of the AC Act, 1961 for eviction and

recovery of rent against one Shri Vipendra Singh on 14.07.2008 and on 13.10.2014 an ex-parte decree against the said Vipendra Singh was passed by

the learned Judge of the trial Court, the execution proceeding was also initiated by the respondent. However, its notice was affixed on the house of the

petitioner and only then he came to know that an ex-parte decree has been passed against him and after obtaining the copy of the judgment and

decree dated 13.10.2014, it was observed that the name of the petitioner has been wrongly mentioned in the civil suit, hence, an appeal was filed

against the aforesaid judgment dated 13. 10.2014 and vide order dated 18.01.2019, the appellate Court allowed the appeal filed by the petitioner and

set aside the judgment and decree dated 13.10.2014 and remanded the matter back to the trial Court directing to the respondents to correct the name

of the petitioner in the cause title and also imposed a penalty of Rs.3000/-on the petitioner taking note of the conduct of the petitioner.

On 04.12.2019, the petitioner appeared before the trial Court along with the counsel who also filed his vakalatmana and the counsel appearing for

the respondent-plaintiff also sought time to correct the cause title of the plaint. On 05.11.2019 an application under Section 12 (6) (sic) of the AC Act,

1961 was filed by the respondent-plaintiff before the trial Court stating therein that since the petitioner has not paid the rent since last 26 years

amounting to Rs.31,200/- and despite service of notice on him in the suit the rent has not yet been paid and in fact the defendant is also challenging the

ownership of the plaintiff. In view of the same, it was submitted that the petitioner’s defence be struck out.

A reply to the aforesaid application was also filed by the petitioner stating therein that the matter is pending before the Court wherein the

plaintiff’s witness is being recorded and only to protract the case further the aforesaid application has been filed with malafide intentions. It was

also stated that the respondent is not the actual owner of the land and in view of the same the suit itself was not maintainable against the respondent.

The learned Judge of the trial Court after considering the application as also the reply, allowed the application and the defence of the petitioner-

defendant has been struck out.

A review application was also filed by the petitioner against the aforesaid order dated 21.11.2019, but the same was also dismissed on 03.12.2019

which is also under challenge before this Court.

Counsel for the petitioner has submitted that the ownership of the disputed premises in itself is doubted, hence, the invocation of the provisions of

the AC Act, 1961, was wrong and hence no such application under Section 13 (6) could have been entertained which was in fact an application filed

under Section 12 (6) which in itself was not maintainable.

Counsel for the respondents on the other hand has opposed the prayer and has submitted that no illegality has been committed by the learned Judge

of the trial Court in allowing the application though erroneously filed under Section 12(6) as it should have been under Section 13(6) of the AC Act,

1961. He has further submitted that initial suit itself was filed in the year 2008 and the petitioner-defendant has successfully avoided the ex-parte

decree passed against him on the ground that his name was wrongly mentioned in the plaint itself and that he was not properly served and despite his

appeal was allowed against the ex-parte decree, the learned Judge of the lower appellate Court has imposed a cost of Rs.3000/- on the petitioner.

Counsel has further submitted that if the petitioner was in doubt as to the ownership of the property, in that case also he ought to have deposited the

rent in accordance with the provisions of the AC Act, 1961 as contained in Section 13. Thus, it is submitted that no illegality has been committed by

the learned Judge of the lower appellate Court in passing the impugned orders and the petition being devoid of merit be dismissed.

Heard counsel for the parties and perused the record.

From the record this Court finds that so far as the eviction suit is concerned it was filed in the year 2008. It is also an admitted fact that earlier an

ex-parte decree was passed against the petitioner which judgment was set aside by the learned lower appellate Court on the ground that the name of

the petitioner was wrongly mentioned in the plaint, however, a cost of Rs.3000/- was also imposed taking note of the conduct of the petitioner-

defendant.

A perusal of the reply to the application filed by the plaintiff under Section 13(6) of the AC Act, 1961, reveals that nowhere in the reply the

petitioner-defendant has averred that they have already paid the entire rent. In fact their objection in sum and substance was that the respondent is not

the owner of the property and they used to pay the rent to the erstwhile owner of the property.

On due consideration of the impugned orders and the documents filed on record, this Court is of the considered opinion that no illegality or

jurisdictional error has been committed by the learned Judge of the trial Court in allowing the application filed by the respondent-plaintiff under Section

13(6) of the AC Act, 1961 and in striking out the defence of the defendant on the ground of non-payment of rent as it has been rightly found that the

petitioner did not deposit any amount even during the course of the appeal which was filed by him only hence he is not entitled to any protection under

Section 13 of the AC Act,1961. So far as the ownership of the respondent of the disputed premises is concerned, it is clearly provided under Section

13(3) of the AC Act, 1961 that the rent should be paid in the court itself which has also not been done by the petitioner. That apart the ground of

ownership is of no avail to the petitioner in assailing the application filed under Section 13(6) of the AC Act, 1961.

As a result, no illegality or jurisdictional error appears to have been committed by the learned judge of the trial Court in passing the impugned

orders, thus, the petition being devoid of merit is hereby dismissed.