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PETITIONER: JAMNALAL & ORS.

       Vs.

RESPONDENT: RADHESHYAM

DATE OF JUDGMENT:       18/04/2000

BENCH: N.S.Hegde, S.S.M.Quadri

JUDGMENT:

     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

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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

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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

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(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,

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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

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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 thereunder.   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

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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 another  Vs.   Ramachandra  Rao [1970 MPLJ 902]  a  Division 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

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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 of   sub-section  (1).   In   Jivrambhai  and  another   Vs. 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 statement to be correct.  In Chhogalal Jankilal Vs.  Idol of 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

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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 approve the same.  In Anandilal Vs.  Shiv Dayal Pandey [1977 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

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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.