Shyamcharan Sharma Vs. Dharamdas
[1979] INSC 255 (4 December 1979)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1980 AIR 587 1980 SCR (2) 334 1980
SCC (2) 151
CITATOR INFO :
R 1981 SC1455 (20) R 1984 SC1392 (3,4,13,15,16)
R 1985 SC 964 (11) R 1987 SC1010 (15) RF 1989 SC 162 (10)
ACT:
Madhya Pradesh: Accommodation Control Act,
1961 (41 of 1961), Ss. 12, 13(1) and 13(6)-Suit for eviction of tenant for
failure to pay arrears rent-Monthly rent falling due after filing of
suit-Default in payment of-Court whether can extend time for payment and
condone delay Protection against eviction-Whether tenant can claim.
HEADNOTE:
The respondent-landlord sought eviction of
the appellant-tenant from the suit premises for failure to pay arrears of rent,
despite service of notice of demand. The trial court found that the tenant was
in arrears o. payment of rent, but the tenant having deposited the arrears of
rent within the time allowed by the court on his application the tenant was
entitled to avail the protection of section 12(3) of the Madhya Pradesh
Accommodation Control Act. 1961. and dismissed the suit for eviction.
The landlord preferred an appeal and while
the same was pending? the tenant filed an application under section 13(1) of
the Act for condonation of delay in depositing,, the rent, month by month.
which had become payable after the filing of the suit. On several occasions,
when the suit and the appeal were pending before the trial court and the
appellate court respectively, the tenant had deposited the monthly rent a day
or two or three beyond the prescribed date, and the same had been received by
the court and drawn out by the landlord, without any protest. The landlord,
taking advantage of the filing of the tenant s application for condonation of
delay, contended that the court had no power to extend the time for deposit of
the monthly rent and that he was entitled to a decree for eviction consequent
on the non-compliance with the provisions of section 13(1) of the Act. The
appellate court negatived this contention and dismissed the appeal. In the
second appeal preferred by the landlord, the High Court held that the Court had
no power to extend time and decreed the Suit for eviction.
In the tenant's appeal to this Court on the
question whether the Court ha(l. the power to condone the delay in depositing
the monthly rent falling due after the filling of the suit for eviction.
HELD :1. The court had the jurisdiction to
extend time for deposit or payment of monthly rent falling due after the filing
of the suit. [338 G]
2. In order to entitle a tenant to claim the
protection of section 12(3). the tenant had to make payment or deposit as
required by section 13. The arrears of rent should be paid or deposited within
one month of the service of the writ of summons on the tenant or within such
further time as may he allowed by the court, and should further deposit or pay
every month by the 15th. a sum equivalent to the rent.
[338 A-B].
3. Failure to pay or deposit a sum equivalent
to the rent by the 15th of every month, subsequent to the filing of the suit
for eviction will not entitle the landlord, straightaway, to a decree for
eviction. The consequences of the deposit or payment and non-payment or
non-deposit are prescribed by subsection and (6) of section 13. [338 B]
4. A discretion is vested in the court under
section 13(6) to order the striking out of the, defence against eviction. [338
D]
5. If the court has the discretion not to
strike out the defence or a tenant committing default in payment or deposit of
rent as required by section 13(1), the court surely has the further discretion
to condone the default and extend the time for payment or deposit. Such a
discretion is a necessary implication of the discretion not to strike out the
defence. Any other construction may lead, to a perversion of the object of the
Act. namely, 'the adequate protection of the tenant.' [338 F-G]
6. Section 12(3) entitles a tenant to claim
protection against eviction on the ground specified in section 12(1)(a) if he
makes payment or deposit as required by section 13. As the court has under
section 13, the power to extent: the time for payment or deposit, payment or
deposit, within the extended time will entitle the tenant to claim the
protection of section 12(3). [338 H] 1
7. Express provision for extension of time
for deposit or payment or rent falling due after the filing of the suit was not
made in section 13(1! as the consequence of non- payment was dealt with by a
separate sub-section, section 13(6). The discretion given to the court under
section 13(6) must imply a discretion to condone the delay and extend the time
in making deposit or payment under section 13(1).
[339A, E] Jagdish Kapoor v. New Education
Society (1967) Jabalpur L.J. 859 disapproved.
B. C. Kame v. Nem Chand Jain, A.I.R. 1970
S.C. 981.
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 854, of 1977.
Appeal by Special Leave from the Judgment and
order dated 2-8-1976 of the Madhya Pradesh High Court in S.A. No. 440/71.
S. S. Khanduja and Lalit Kumar Gupta for the
Appellant.
T. P. Naik and S. K. Gambhir for the
Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-The respondent-landlord sought eviction of the
appellant-tenant from the suit premises an two grounds: (i) failure to pay
arrears of rent of Rs. 158.25 despite service of notice of demand and (ii)
bonafide requirement of premises for landlord's personal occupation.
The second ground was rejected by all the
sub- ordinate courts and we are no longer concerned with that ground. In regard
to the first ground, the trial Court found that the tenant was 336 in arrears
of payment of rent but that the tenant was entitled to the Protection of s.
12(3) of the Madhya Pradesh Accommodation Control Act, 1961, as the tenant had
deposited the arrears of rent within the time allowed by the Court on his
application. When the appeal preferred by the landlord was pending before the
Additional District Judge, Satna, the tenant filed an application for
condonation of delay R in depositing the rent, month by month, which had become
payable after the filing of the suit, as stipulated by s.
13(1) of the Act. It appears that, on several
occasions, when the suit and the appeal were pending before the trial court and
the appellate court respectively, the tenant had deposited the monthly rent a
day or two or three, beyond the prescribed date. The amount had been received
by the court and drawn out by the landlord, apparently without any protest.
Taking advantage of the filing of the tenant's application for condonation of
delay, the landlord contended that the court had no power to extend the time
for deposit of the monthly rent and that he was entitled to a decree for
eviction consequent on the non-compliance with the provisions of s. 13 ( 1 ) of
the Madhya Pradesh Accommodation Control Act. The appellate court negatived the
landlord's contention and dismissed the appeal. The landlord preferred a Second
Appeal to the High Court of Madhya Pradesh. The High Court, holding that the
court had no power to extend time, decreed the suit for eviction. The tenant,
having obtained special leave, has appealed to this Court.
Shri Khanduja, learned counsel for the
appellant, raised two contentions before us. The first contention was that the
High Court was wrong in holding that the Court had no power to condone the
delay in depositing the monthly rent falling due after the filing of the suit
for eviction. The second contention was that, in the circumstances of the case.
the respondent must be considered to have waived or abandoned the right to
insist on dis-entitling the tenant of the protection to which he was otherwise
entitled. Shri Naik, learned counsel for the respondent, contended to the
contrary on both the questions.
The Madhya Pradesh Accommodation Control Act,
1961, was enacted, as recited in the statement of objects and reasons,
"for the purpose of controlling, letting of and rents of residential and
nonresidential accommodation and giving adequate protection to tenants of such
accommodation in areas where there is dearth of accommodation". Section
12(1) of the Act provides that no suit shall be-filed ill any civil court
against a tenant for his eviction from any accommodation except on one or more
of the grounds specified therein. Several grounds are specified, such as,
failure to pay the arrears of rent after the service of notice of demand,
unlawful sub-letting of the whole or 337 part of the accommodation, creation of
a nuisance, bonafide requirement of the accommodation by the landlord for his
own occupation, causing of substantial damage to the accommodation etc. etc.
The ground with which we are concerned is that mentioned in s. 12(1) (a) and-it
is: "that the tenant has neither paid nor tendered the whole of the
arrears of rent legally recoverable from him within two months of the date on
which a notice of demand for the arrears of rent has been served on him by the
landlord in the prescribed manner". Thus, where a tenant is in arrears of
rent, a landlord is obliged, before instituting a suit for eviction on that
ground, to serve a notice of demand calling upon the tenant to pay or tender
the whole of the arrears of rent within two months of the date of service of
the notice. S. 12(3) provides that an order for the eviction of a tenant shall
not be made on the ground specified in s.
12(1) (a), if the tenant makes payment or
deposit as required by s. 13. S. 13,sub-ss. (1), (5) and (6) which are relevant
for the present purpose are as follows:
"13. (1) on a suit or proceeding being
instituted by the landlord on any of the grounds referred to in s. 12, the
tenant shall, within one month of the service of the writ of summons on him 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.
xx xx xx xx xx (5) If a tenant makes deposit
or payment as required by sub-section (1) or sub-section (2), no decree or
order shall be made by the Court for the recovery of possession of the
accommodation on the ground of default in the payment of rent by the tenant,
but the Court may allow such cost as it may deem fit to the landlord.
(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."
338 It is true that in order to entitle a tenant to claim the protection of s.
12(3), the tenant has to make a payment or deposit as required by s. 13, that
is to say, the arrears of rent should be paid or deposited within one month of
the service of the writ of summons on the tenant or within such further time as
may be allowed by the court, and should further deposit or pay every month by
the 15th, a sum equivalent to the rent. It does not, however, follow that
failure to pay or deposit a sum equivalent to the rent by the 15th of every
month, subsequent to the filing of the suit for eviction, will entitle the
landlord, straight away, to a decree for eviction. The consequences of the
deposit or payment and non-payment or non-deposit are prescribed by sub-ss. (5)
and (6) of s. 13. Since there is a statutory provision expressly prescribing
the consequence of non- deposit or non-payment of the rent, we must look to and
be guided by that provision only to deter mine what shall follow. S. 13 (6)
does not clothe the landlord with an automatic right to a decree for eviction;
nor does it visit the tenant with the penalty of a decree for eviction being
straightaway passed against him. S. 13(6) vests, in the court, the discretion
to order the striking out of the defence against eviction. In other words, the
Court, having regard to all the circumstances of the case, may or may not
strike out the defence. If s. 13 were to be construed as mandatory and not as
vesting a discretion in the Court, it might result in the situation that a
tenant who has deposited the arrears of rent within the time stipulated by s.
13(1) but who fails to deposit thereafter the monthly rent on a single occasion
for a cause beyond his control may have his defence struck out and be liable to
summary eviction. We think that s. 13 quite clearly confers a discretion, on
the court, to strike out or not to strike out the defence, if default is made
in deposit or payment of rent as required by s. 13(1). If the court has the
discretion not to strike out the defence of a tenant committing default in
payment or deposit as required by s. 13(1), the court surely has the further
discretion to condone the default and extend the time for payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike
out the defence. Another construction may lead, in some cases, to a perversion
of the object of the Act namely, 'the adequate protection of the tenant'. S.
12(3) entitles a tenant to claim protection against eviction on the ground
specified in s. 12(1) (a) if the tenant makes payment or deposit as required by
s. 13. On our construction of s. 13 that the Court has the power to extend the
time for payment or deposit, it must follow that payment or deposit within the
extended time will entitle the tenant to claim the protection. of s. 12(3). One
of the arguments advanced before us was that there was no express provision for
extension of time for deposit or payment.
339 of monthly rent subsequent to the filing
of the suit whereas there was such express provision for payment or deposit of
arrears of rent that had accrued before the filing of the suit. Obviously,
express provision for extension of time for deposit or payment of rent falling
due after the filing of the suit was not made in s. 13(1) as the consequence of
non- payment was proposed to be dealt with by a separate sub- section. namely
s. 13(6). Express provision had to be made for extension of time for deposit or
payment of rent that had accrued prior to the filing of the suit, since that
would ordinarily be at a very early stage of the suit when a written statement
might not be filed and there would.
therefore, be no question of striking out the
defence and, so, there would be no question of s. 13(6) covering the situation.
In Jagdish Kapoor v. New Education Society, a
full bench of the Madhya Pradesh High Court held that s. 13((6) of the Madhya
Pradesh Accommodation Control Act did not make it obligatory for the court to
strike out the defence but vested in the court a discretion to strike out or
not to strike out the defence. Having so held, the full bench stopped short of
giving full effect to their conclusion by holding D. that the Court could
condone the default and refuse to strike out the defence but it could not give
the benefit of s. 12(3) or 13(5) to the tenant. We do not see any justification
for adopting this narrow construction of ss. 12 and 13. In our view the
discretion given to the court under s. 13(6) must be held to imply a discretion
to condone the delay and extend the time in making deposit or payment under s.
13(1). In B. C. Kame v. Nem Chand Jain, a tenant had committed default both in
payment of arrears as well as in payment of the monthly rent which became
payable after the filing of the suit. This Court took the view that on an
application made by the tenant time for deposit or payment could be extended.
Though the observations made by the Court read as if they were made with
reference to the default in payment. Of arrears, a reference to the facts of
the case as set out in the very judgment shows that there was default both in
payment of the arrears of rent that had accrued before the filing of the suit
and in payment of the monthly rent that fall due after the filing of the suit.
We are accordingly of the opinion that the
Court has the jurisdiction to extend time for deposit or payment of monthly
rent falling due after the filing of the suit. In that view it is not necessary
to express our opinion on the question of waiver or abandonment. The appeal is
allowed with costs and the suit for eviction is dismissed.
N.V.K. Appeal allowed.
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