Jamnalal & Ors Vs. Radheshyam
[2000] INSC 227 (18 April 2000)
N.S.Hegde, S.S.M.Quadri
SYED SHAH MOHAMMED QUADRI, J.
The question that arises for consideration in
this appeal is : can the court pass a decree for eviction of a tenant under
Section 12(1)(a), without first determining provisionally the amount of rent
payable under Section 13(2) of the M.P.Accommodation Control Act, 1961, when
the tenant, having admitted the rate of rent, failed to establish that he had
paid the arrears of rent? This appeal, by special leave, is preferred by the
landlords challenging the validity of the judgment of a learned Single Judge of
the High Court of Madhya Pradesh, Indore Bench, in Second Appeal No.183 of 1993
passed on December 16, 1997. The relevant facts giving rise to this appeal need
be noticed. One Bherulal was the owner of house No.1/796, Brahmin Gali, Ujjain,
(Madhya Pradesh) in which he let out three rooms (hereinafter referred to as
the suit accommodation) for residential purposes to the respondent (tenant) on a
monthly rent of Rs.60/-. A rent note was also executed on December 4, 1971. The
said Bherulal passed away, leaving behind him the appellants (landlords) among
other heirs, on April 19, 1972. It is stated that in the partition of his
properties among his heirs the suit accommodation fell to the share of the
landlords. On November 29, 1976, the landlords issued a notice to the tenant
terminating his tenancy on two grounds (i) default in payment of arrears of
rent for the period commencing from 2.3.1976 to 2.4.1977 and (ii) creating
nuisance. On the plea that despite service of the notice of demand the tenant
did not pay the arrears of rent nor did he abate nuisance, the landlords filed
Civil Suit No.340-A of 1989 in the court of Civil Judge Class-II, Ujjain, M.P.
for recovery of possession by ejectment of the tenant under Section 12(1)(a) of
the Madhya Pradesh Accommodation Control Act, 1961, (for short the Act). The
tenant contested the suit pleading that he had paid the arrears of rent and
denying the ground of nuisance; however, he admitted that the rent was Rs.60/-
per month. On the basis of the evidence produced by the parties before it, the
trial court found that receipts produced by the tenant in proof of payment of
rent for the period from March to July, 1976 (Exs.D1 to D4) were forged and
that the tenant committed default in payment of rent for the said period; it
ordered his prosecution also under Section 193 of the Indian Penal Code. The
ground of nuisance was also accepted. On December 20, 1990, in view of these
findings, the trial court decreed the suit for eviction of the tenant. Against
that judgment the tenant filed appeal in the court of 1st Additional District
Judge, Ujjain, M.P. On April 27, 1993, the Appellate Court confirmed the decree
of the trial court and dismissed the appeal with costs. In the tenants second
appeal, the High Court framed the following substantial question of law under
Section 100 of the Code of Civil Procedure : Whether in the facts and
circumstances of the case, the decree passed by the courts below under Section
12(1)(a) of the M.P.Accommodation Control Act, 1961, without fixing provisional
rent in terms of Section 13(2) of the said Act, despite dispute about the
quantum of arrears of rent, is sustainable in law? The High Court took the view
that as the tenant disputed being in arrears of rent and no provisional rent
was determined by the trial court, the operation of the whole of sub-section
(1) of Section 13 of the Act was arrested as such the tenant could not be met with
the penal consequences of eviction decree denying him the benefit of
sub-section (3) of Section 12 of the Act. It was also noted that the tenant had
cleared all the arrears accruing due during the pendency of the suit and appeal
so the landlords claim for eviction on the sole ground under Section 12(1)(a)
of the Act must fail and thus allowed the second appeal by the judgment
impugned in this appeal. Mr.A.K.Chitale, learned senior counsel appearing for
the appellants, argued that having regard to the scheme of the Act the ground
for seeking eviction of the tenant under Section 12(1)(a) of the Act cannot be
defeated for the reason that the amount of rent payable by the tenant was not
determined provisionally by the trial court. The learned counsel submitted that
the tenant having taken the plea that he paid the rent, forged receipts and
lost on that ground, so he could not invoke Section 13(2) of the Act meant for
fixation of rate of rent provisionally by the trial court when the rate of rent
was disputed. The question whether the tenant was in arrears of rent, submitted
Mr. Chitale, could not be the subject-matter of summary inquiry under
sub-section (2) of Section 13 of the Act which was only meant as interim
arrangement for payment of monthly rent during the pendency of the case. The
finding that the tenant committed default in payment of rent recorded by the
trial court and confirmed by the Appellate Court ought to have been accepted by
the High Court in Second Appeal. Though notice of lodgment of the appeal was
served on the respondent, he did not choose to enter appearance. Having regard
to the importance of the question which involves interpretation and interplay
of Sections 12 and 13 of the Act we requested Mr.A.M.Khanwilkar, Advocate, to
assist the court.
Mr.Khanwilkar contended that under the scheme
of the Act there could be no eviction of a tenant on the ground of default in
payment of rent even though Section 12(1)(a) of the Act provided that eviction
of a tenant would be permissible; the provisions of Section 12(3) and Section
13 of the Act gave protection to a tenant, in default in payment of rent,
against eviction. Section 13(5), submitted the learned counsel, prohibited
passing of decree or order for recovery of possession of accommodation on the
ground of default in payment of rent by the tenant provided he had made deposit
or payment as required in sub-section (1) or sub-section (2) of Section 13 of
the Act. As the amount of rent payable by the tenant was not determined
provisionally by the trial court under sub-section (2), the tenant had no
opportunity to make deposit under sub-section (1) of Section 13 of the Act as
such no order of eviction could be passed against him under Section 12(1)(a) of
the Act; in such a case passing an order of eviction against a tenant, it was
submitted, would result in the tenant suffering for non-determination of
provisional amount of rent by the court. To examine the above contentions of
the learned counsel, it is necessary to refer to clause (a) of sub-section (1),
sub-section (3) of Section 12 and also Section 13 of the Act, as it stood at
the material time, which are relevant for our purpose: 12. Restriction on
eviction of tenants.
(1) Notwithstanding anything to the contrary
contained in any other law or contract, no suit shall be filed in any Civil
Court against a tenant for his eviction from any accommodation except on one or
more of the following grounds only namely :- (a) that the tenant has neither
paid nor tendered the whole of the arrears of the 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;
(b) to (p) *** *** *** (2) *** *** *** (3) No
order for the eviction of a tenant shall be made on the ground specified in
clause (a) of sub-section (1), if the tenant makes payment or deposit as
required by Section 13 :
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.
(4) to (11) *** *** ***
13. When tenant can get benefit of protection
against eviction.
(1). On a suit or proceeding being instituted
by the landlord on any of the grounds referred to in Section 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 upto 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 of equivalent to the rent at the rate.
(2) If in any suit or proceeding referred to
in sub-section (1), there is any dispute as to the amount of rent payable by
the tenant, the Court shall fix a reasonable provisional rent in relation to
the accommodation to be deposited or paid in accordance with the provisions of
sub-section (1) till the decision of the suit or appeal.
(3) If, in any proceeding referred to in
sub-section (1), there is any dispute as to the person or persons to whom the
rent is payable, the Court may direct the tenant to deposit with the Court the
amount payable by him under sub-section (1) or sub-section (2), and in such a
case, no person shall be entitled to withdraw the amount in deposit until the
Court decides the dispute and makes an order for payment of the same.
(4) If the Court is satisfied that any
dispute referred to in sub-section (3) has been raised by a tenant for reasons
which are false or frivolous, the court may order the defence against eviction
to be struck out and proceed with the hearing of the suit.
(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.
A cursory reading of clause (a) of
sub-section (1) of Section 12 of the Act makes it clear that non-payment of
arrears of rent legally recoverable from a tenant 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, is one of the grounds for filing a suit
in a Civil Court against a tenant for his eviction from the rented
accommodation. But the legislative mandate contained in sub-section (3) of
Section 12 is that no order of eviction of a tenant shall be made if he makes
payment or deposit as required by Section 13 of the Act. The proviso appended
to Section 12(3) restricts entitlement to the benefit available under that sub-
section. It cannot be availed by a tenant who having obtained such benefit once
in respect of any accommodation again makes a default in payment of rent of
that accommodation for three consecutive months. The scheme of Section 13 of
the Act suggests that the provisions thereof are intended for the benefit of
both the tenant as well as the landlord. While Section 13 affords protection to
a defaulting tenant, willing to abide by the obligation to pay the rent
regularly, against eviction on the ground of default in payment of rent, it
also ensures payment of rent to the landlord, which he is entitled to receive
for both the pre- litigation period as well as during the pendency of the
litigation. A perusal of Sub-section (1) of Section 13 discloses that it
imposes twin obligations on the tenant against whom a suit or proceeding is
instituted on any of the grounds mentioned in sub-section (1) of Section 12.
The first is that 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, the tenant shall deposit in the Court or pay to the landlord
an amount, representing (a) arrears of rent for the period for which the tenant
may have made default and (b) rent for the period subsequent thereto upto the
end of the month previous to that in which the deposit or payment is made, duly
calculating the same at the rate of rent at which it was paid. And the second
is payment/deposit of rent for the period thereafter, that is, future rent
which he shall continue to deposit or pay, month by month, by the 15th of each
succeeding month, at that rate. For the purpose of depositing the amount of
rent, sub-section (1) refers to three periods in chronological order, i.e., (i)
period for which arrears of rent are due, which is the subject matter of notice
of demand served on the tenant; (ii) period for which rent became due
subsequent to the notice of demand till the date of deposit of rent in Court;
and (iii) period for which rent will become due in future, after the date of
deposit as aforementioned, till the decision of suit or appeal. The following
illustration will help in elucidating the import of the provisions under
consideration; if a tenant has last paid rent of tenanted premises, say, @
Rs.1000/- for the months of January and did not pay for February, March and
April and notice of demand claiming arrears of rent for those months was served
on him in May; the Act permits him to pay the arrears of rent within two months
of service of demand, i.e., till end of July. Assuming he has failed to do so
and the landlord files the suit under Section 12(1)(a) of the Act of which writ
of summons is served on the tenant on September 15, for his appearance in the
Court, he has the second opportunity to pay arrears of rent in Court within one
month of service of summons on him i.e. till October 14 or within such further time
as the Court may allow; but at that stage along with arrears of rent for the
said months he has also to pay/deposit rent for the months from May to the end
of September. The second obligation of depositing the future rent continuously
from month to month covers the period commencing from October and ending with
the decision of suit or appeal. The arrears of rent and the future rent for
each month, in the illustration, have to be calculated at the rate of
Rs.1000/-. The abovestated two obligations are independent of each other.
Compliance of the second does not depend upon fulfilment of the first
obligation. It is evident that Section 13(1) applies on institution of a suit
on any of the grounds in clauses (a) to (p) of Section 12(1) and not merely to
one under clause (a) default in payment of rent. In cases under clauses other
than (a), the tenants might have been paying the rent regularly and the
question of payment/deposit of arrears of rent or rent for the period
subsequent to service of summons, may not arise.
Can then, based on the word thereafter, it be
argued that there will be no liability to deposit future rent the second
obligation noted above. In our view such a contention will be defeating the
object of the provision and will be impermissible. Having stated how the amount
of rent payable by the tenant for the periods specified therein should be
calculated and deposited, the provision imposes further obligation to deposit
the rent month by month till the termination of the suit or proceedings. The
word thereafter is merely indicative of sequence of the second obligation to
deposit the future rents; it is certainly not suggestive of the fact that if
the first obligation for any reason cannot be complied with then the occasion
to comply with the second obligation does not arise or that it automatically
comes to an end. It would be unthinkable that that could be the intention of
the legislature. The tenants liability to deposit the rent for any of the
periods, noted above, in the Court does not depend upon and has no relation to
depositing the rent for any of the earlier periods. When the rate of rent
payable each month and the quantum of arrears of rent are admitted, no problem
arises in complying with Section 13(1) of the Act.
Difficulty may, however, arise in complying
with the two requirements of sub- section (1) of Section 13, noted above, when
dispute is raised by the tenant with regard to either the amount of rent
payable by him or with regard to the person who is entitled to receive the
rent. Sub-section (2) of Section 13 of the Act takes care of the situation when
there is dispute as to the amount of rent payable by the tenant and directs
fixation of a reasonable provisional rent in relation to the accommodation,
which will be a summary inquiry, by the Court. The dispute may arise in any of
the following circumstnces : (i) rate of rent and the quantum of arrears of the
rent are in dispute though not the period for which arrears of rent are due;
(ii) rate of rent and the quantum of arrears rent are in dispute and also the
period for which it is due; (iii) rate of rent is admitted but the quantum of
arrears of rents or/and the period for which it is due are disputed. A careful
reading of the sub-section shows that the Court is enjoined to fix a reasonable
provisional rent, in relation to the accommodation, to be deposited or paid in
accordance with the provision of sub-section (1) if there is a dispute as to
the amount of rent payable by the tenant. The clause the court shall fix a
reasonable provisional rent in relation to the accommodation clearly indicates
that any dispute as to the amount of rent is confined to a dispute which
depends on the rate of rent of the accommodation either because no rate of rent
is fixed between the parties or because each of them pleads a different sum.
Where the dispute as to the amount of rent payable by the tenant has no nexus
with the rate of rent, the determination of such dispute in a summary inquiry
is not contemplated under sub-section (2) of Section 13. Such a dispute has to
be resolved after trial of the case. Consequently, it is only when the
obligations imposed in Section 13(1) cannot be complied with without resolving
the dispute under sub-section (2) of that Section, that Section 13(1) will
become inoperative till such time the dispute is resolved by the Court by
fixing a reasonable provisional rent in relation to the accommodation. It
follows that where the rate of rent and the quantum of arrears of rent are
disputed the whole of Section 13(1) becomes inoperative till provisional
fixation of monthly rent by the Court under sub-section (2) of Section 13,
which will govern compliance of Section 13(1) of the Act. But where rate of
rent is admitted and the quantum of the arrears of rent is disputed, (on the
plea that the rent for the period in question or part thereof has been paid or
otherwise adjusted), sub-section (2) of Section 13 is not attracted as
determination of such a dispute is not postulated there under. Therefore, the
obligation to pay/deposit the rent for the second and the third period
aforementioned, referred to in Section 13(1), namely, to deposit rent for the
period subsequent to the notice of demand and for the period in which the
suit/proceedings will be pending that is (future rent) does not become
inoperative for the simple reason that Section 13(2) does not contemplate
provisional determination of amount of rent payable by the tenant. As
resolution of that category of dispute does not fall under Section 13(2) the
tenant has to take the consequence of non payment/deposit of rents for the said
periods. If he fails in his plea that no arrears are due and the Court finds
that the arrears of rent for the period in question were not paid, it has to
pass an order of eviction against the tenant as no provision of Section 13 of
the Act protects him.
Sub-section (3) of Section 13 of the Act
deals with a case where the dispute is as to the person or persons to whom the
rent is payable. If the court is satisfied that the dispute raised by the
tenant in regard to the person or persons to whom the rent is payable is false
or frivolous, sub- section (4) says, the court in its discretion may order
striking out the defence against the eviction instead and proceed with the
hearing of the case. So also sub-section (6), in the case of non-compliance in
depositing or payment of rent of any amount as required by Section 13(1) of the
Act, enables the court to order striking out the defence against the tenant
instead and proceed with the hearing of the suit.
Sub-section (5) directs that if the tenant
makes deposit or payment as required under sub-section (1) or sub-section (2)
of Section 13 of the Act, the Court is barred from making a decree or order for
the recovery of the possession of the accommodation on the ground of default in
payment of rent by the tenant but the court may allow such cost as it may deem
fit to the landlord. Where the rate of rent payable by the tenant for the
accommodation is not in dispute and the quantum of arrears of rent is not
paid/deposited either because the tenant pleads that he has paid the arrears of
rent or adjusted the same towards the amounts 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 sub- section
(2) is not attracted because the plea taken by the tenant has to be adjudicated
by full fledged trial and not in a summary inquiry postulated for fixing a
reasonable provisional rent in relation to the accommodation in question. This
being the position a 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 under sub-section
(1) because where the dispute raised by the tenant is outside the ambit of
sub-section (2), sub-section (1) of Section 13 of the Act does not become
inoperative. There can no debate on the proposition that the tenant is relieved
of the consequences of default in payment of rent on his paying/depositing the
rent under sub-section (1) at the rate last paid or at the rate fixed
provisionally under sub-section (2) of Section 13 of the Act but if the tenant
takes a false or frivolous plea in regard to the amount of rent payable by him,
which does not involve fixation of provisional rent under Section 13(2), he
runs the risk of suffering an order of eviction either under sub-section (6) of
Section 13 or after trial under Section 12(1)(a) of the Act. We are not
persuaded to accept the contention of the learned Amicus that the legislature,
having provided a ground for eviction of a tenant under Section 12(1)(a) of the
Act, nor merely diluted but has nullified its effect by enacting Section 12(3)
and sub-sections (2) and (5) of Section 13 of the Act. A liberal but harmonious
construction of clause (a) of sub-section (1), sub-section (3) of Section 12
and sub-sections (1), (2), (5) and (6) of Section 13 does not lead us to the
conclusion that clause (a) of sub-section (1) of Section 12 has in effect been
rendered illusory. Now, we shall advert to the cases cited at the bar which are
decided by the High Court of Madhya Pradesh on the interpretation of the
above-said provisions. In Firm Ganeshram Harvilas and Bench of the Madhya Pradesh
High Court had to consider the effect of Section 12(3) and Section 13(2) of the
Act. The Division Bench has held, interalia, that every kind of dispute as to
the amount of rent payable by the tenant is within the scope of Section 13(2)
of the Act. This, in our view, is too broad a proposition to merit acceptance.
With regard to the word thereafter in second part of sub- section (1) of
Section 13, the Division Bench rightly concluded that it meant after one month
of the service of the writ of summons on the tenant, or, where time is
extended, after the time so extended under the first part Amarsingh [1972 MPLJ
785] the observation of the Division Bench of the Madhya Pradesh High Court
that as soon as the dispute under Section 13(2) of the Act is raised and it is
brought to the notice of the Court the operation of Section 13(1) of the Act
gets arrested so far as the amount to be deposited in Court is concerned and it
remains in suspense until provisional rent is fixed, is also too wide a Bhagwan
Shri Satyanaraya through Kamaldas Guru, Pujari [ 1975 MPLJ 657] the landlord
claimed that the defendant-appellant was the tenant on a monthly rent of Rs.5
and that he failed to pay the arrears of rent within two months from the
service of the demand notice. In the written statement the tenant pleaded that
the monthly rent was initially Rs.2 which was first enhanced to Rs.2-8-0 per
month and then to Rs.3 per month. He alleged that there was never any agreement
to pay the rent of Rs.5 per month and pleaded that on receiving notice of
demand he sent all the arrears at the rate of Rs.3 per month and deposited
subsequent rent of Rs.132 calculated at the rate of Rs.3 per month in the Court
of the Rent Controller on the date of his filing the written statement. The
trial court, however, did not fix any reasonable provisional rent as required
by sub-section (2) of Section 13 of the Act and the tenant continued to deposit
in the court rent at the rate of Rs.3 per month. After trial the court found
that the rent of the house was Rs.5 per month, as pleaded by the landlord, and
not Rs.3 per month as alleged by the tenant and ordered eviction of the tenant
under Section 12(1)(a) of the Act.
The Appellate Court held that in depositing
rent at the rate of Rs.3 per month, during the pendency of the suit, there was
compliance of Section 13(1) of the Act he by the tenant but not during the
pendency of the appeal as the trial court had found that the rate of rent was
Rs.5 per month;
therefore, he was not entitled to the
protection of Section 12(3) and Section 13(5) of the Act and, therefore, he was
liable to be evicted. In second appeal, a learned Single Judge of the High
Court proceeded on the assumption that on a dispute being raised by the tenant
under sub-section (2) of Section 13 of the Act, the obligation to deposit the
rent under Section 13(1) remained suspended until the court fixes the
provisional rent; the tenant will not be in default if no provisional rent is
fixed by the court as the operation of sub-section (1) of Section 13 of the Act
was arrested and that assumption was endorsed by the Full Bench of the Madhya
Pradesh High Court. On a difference of opinion between two Division Benches of
that High Court, the question referred to the Full Bench was, whether it is
sufficient for the tenant to raise the dispute in his written statement or
whether he must make an application inviting the attention of the Court to the
specific dispute and ask the Court to fix the provisional rent. It, however,
answered that question as follows: The operation of sub-section (1) of Section
13 of the Madhya Pradesh Accommodation Control Act, 1961, is arrested when a
dispute as is referred to in sub-section (2) is raised by the defendant-tenant
in his written statement and it is not necessary that he should make an
application inviting the attention of the Court to the specific dispute and
asking the Court to fix provisional rent. Apart from the fact that the decision
of the Full Bench that when a dispute is raised under Section 13(2) of the Act,
the operation of Section 13(1) is arrested, is obiter dicta, for the
aforementioned reasons we cannot MPLJ 822], for non- payment of rent within two
months from the service of notice of demand, the landlord terminated the
tenancy. The tenant disputed that he was in arrears of rent. The trial court
found that the tenant had committed default in payment of rent and decreed the
suit. However, the Appellate Court reversed the decree holding that the
landlord failed to prove that the tenant was in arrears of rent. In view of the
difference of opinion between Vyas, J., in Jhammanlals case [Second Appeal
No.179 of 1970 decided at Gwalior (M.P.) on 5-8-1976] who, relying on the Full
Bench decision (supra), held that on raising of dispute by the tenant the
operation of the whole of Section 13(1) of the Act was arrested and Oza, J., in
Dewabais case [1977 M.P.L.J. 446] opining that only that part of Section 13 (1)
of the Act which is subject matter of dispute raised under Section 13(2) of the
Act, will be arrested and that compliance of the remaining part of the
provision by the tenant is mandatory, two questions were referred to Division
Bench. The Division Bench answered the questions referred to it as follows:-
(1) Even when there is no dispute with regard to the rate of rent and the
dispute is only with regard to the arrears of rent, on such a dispute, till the
Court passes an order under sub-section (2) of Section 13 of the Act is
arrested. To be more specific, the liability of the tenant to deposit monthly
rent for the preceding month under the second part of Section 13(1) does not
commence until an order under sub- section (2) of Section 13 is made.
(2) The order contemplated under sub-section
(2) of Section 13 of the Act is the one with regard to that part of deposit under
Section 13(1), for which there is a dispute.
From what is stated above, it is evident that
answer to question No.1, recorded by the Division Bench of the High Court, does
not lay down correct law. The Division Bench is also not correct in holding,
The key to the problem is found in the word thereafter (i.e. after that)
necessarily refers to the tenants' liability becoming operative under the first
part of Section 13(1). If that liability is arrested, the liability under the
second part does not commence, because the liability under the second part
commences only thereafter which means when the liability of the tenant under
the first part is ripe for performance. In the instant case, the findings of
the courts below are : that the tenant did not pay the rent for the period from
March to July 1976; indeed, the finding of the trial Court which was confirmed
by the Appellate Court is that the tenant forged receipts (Exs.:D1 to D4) for
the said months and that he had committed default in payment of rent. It appears
that on the application of the landlord the trial court fixed provisional rent
@ Rs.60/- per month and left the question of arrears of rent to be decided on
trial. Consequently, non-determination of provisional rent by the trial Court
under sub-section (2) of Section 13 of the Act becomes inconsequential. There
is thus non-compliance of Section 13(1) of the Act and the tenant is not
entitled to the benefit of Section 13(5) read with Section 12(3) of the Act.
Inasmuch as the order impugned in this appeal is passed by following the
judgment of the High Court in Anandilals case which we have not approved, the
impugned order of the High Court passed on December 16, 1997, cannot be
sustained. Accordingly, the appeal is allowed and the impugned order is set aside.
In the result, the eviction petition, filed by the appellants, stands allowed.
The respondent-tenant is directed to handover vacant possession of the suit
accommodation to the landlords on or before October 31, 2000, on his giving a
usual undertaking. He shall pay to the landlords or deposit in the trial court
the arrears of rent, if any due, within four weeks from today and continue to
pay/deposit the monthly rent on or before 15th of each month, in advance,
during the said period. In default of compliance of any of the aforesaid
conditions, the landlords will be at liberty to have the decree of eviction
executed in accordance with law.
There shall be no order as to costs. Before
parting with the case, we must record our appreciation for the tremendous work
done by Mr.A.M. Khanwilkar. He studied the case thoroughly, searched the case
law on the subject exhaustively and presented the case of the respondent
effectively. We acknowledge his assistance with thanks.
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