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PETITIONER: SHYAMCHARAN SHARMA

       Vs.

RESPONDENT: DHARAMDAS

DATE OF JUDGMENT04/12/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: 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

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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]. 335      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.

JUDGMENT:      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.

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    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

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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

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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

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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. 340