http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  1839-1840 of 2004

PETITIONER: Sobhagyamal & Anr

RESPONDENT: Gopal Das Nikhra

DATE OF JUDGMENT: 22/02/2008

BENCH: P.P. Naolekar & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NOS. 1839-1840 OF 2004

P.P. NAOLEKAR, J.:

1.      The brief facts material for the decision of this case are that  Gopal Das (respondent herein) was inducted as a tenant in the suit  premises on the monthly rent of Rs.350/- w.e.f. 14.12.1973.  As the  respondent was not paying the rent of the suit premises regularly and  was defaulter, a notice demanding arrears of rent was issued by the  landlord on 28.6.1975.  Despite the service of notice, the respondent  did not pay the rent within two months from the service of notice and,  therefore, the landlord filed a civil suit being Suit No. 75A/1979 for  eviction of the respondent from the suit premises on the ground of  Section 12(1)(a) of the Madhya Pradesh Accommodation Control Act,  1961 (hereinafter referred to as "the Act") (i.e. default in payment of  rent) and on the ground of Section 12(1)(b) (i.e. sub-letting) and later  on, by amendment, on the ground of Section 12(1)(f) (i.e. bonafide  necessity of the accommodation for non-residential purposes).  On  institution of the suit, the respondent deposited the rent within one  month of the service of writ of summon of the court on him.  The suit  was decreed by the trial court on the ground of bonafide requirement  under Section 12(1)(f) of the Act.  With regard to the default, the trial  court found as under: "14.    Issue No. 9 is decided against defendant, hence  rent of Rs.2800/- from 13.12.74 to 12.8.75, mesne profits  237/- and interest 161/- as per agreement total  Rs.3198.00 are due of the plaintiff on the defendant and  he is entitled to get the above amount, I give such finding.

15.     Though, the defendant did not pay rent within two  months after receipt of notice, but he raised dispute of  rent under section 13(2) of the Act which was not  decided.  As such the defendant has deposited all the  upto date amount, hence I give finding that defendant has  not paid or deposited all the arrears of rent within two  months from receipt of notice but deposited during  pendency of suit.  Therefore, the defendant will get  benefit of Section 13(5) and Section 12(3) and the plaintiff  is not entitled to get decree under section 12(1)(a) of the  Act."

Thus, the respondent was given benefit under Section 12(3) of the  Act.  The respondent preferred an appeal being Appeal No. 27A/1980  challenging the decree for ejectment on the ground of bonafide need.   It would be pertinent to note that the landlord did not prefer any  appeal or file any cross-objection challenging the refusal of decree on  the ground of arrears of rent.  The first appellate court confirmed the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

decree passed by the trial court.  The respondent preferred a second  appeal being Second Appeal No.47/1982.  The second appeal  preferred by the respondent was allowed by the High Court and the  suit of the landlord on the ground of bonafide need was dismissed as  premature.  While allowing the appeal of the respondent, the High  Court observed: "No decree for ejectment on the ground under  Section 12(1)(a) of the Act could have been passed against the  Appellant, because he had, admittedly, complied with the provisions  of Section 13(1) of the Act."  Against the said judgment and decree of  the High Court, the landlord filed a special leave petition in this Court.   During the pendency of the proceedings, the then landlord Lakshmi  Chand expired and his legal representatives (appellants herein) were  brought on record.  The special leave petition was converted into Civil  Appeal No. 3931/1986.    During the pendency of the aforementioned  proceedings, since the respondent had not deposited the rent or paid  it to the landlord, the appellants served a notice dated 27.2.1991  upon the respondent demanding arrears of rent intimating him that he  had committed a default in payment of rent due from 13.12.1984 to  13.2.1991.  The said notice was served on the respondent on  5.3.1991.  Despite the service of notice of demand for arrears of rent,  the respondent did not pay the rent within two months of the service.   The appellants/landlord filed a second suit being Suit No. 78A/1992  against the respondent under Section 12(1)(a) of the Act on the  ground of default in payment of rent.  During the pendency of these  proceedings, matter was taken up by the Supreme Court in Civil  Appeal No 3931/1986 and was disposed of on 24.8.1994.  The  Supreme Court  held that insofar as the finding recorded by the High  Court on the question of bonafide necessity is concerned, the Court  does not find any ground to interfere with the same.  The Court  further held:         "It appears that a second suit for eviction has been  filed on the ground of default in payment of rent and the  same is pending. The submission of Shri Jain is that the  said suit may be prejudiced by the following observations  contained in the judgment of the High Court:

"It is manifest that the suit for ejectment was not  maintainable, because on the date of suit the period  of lease as per clause (1) of the lease deed (Ext.  P.1) had not come to an end."

       Shri Jain has contended that the said observations  can be construed to mean that the High Court has found  that the earlier suit for eviction on the ground of default in  payment of rent was premature.  We are unable to  construe the said observations in this light.  In our view  the said observations only refer to the suit insofar as it  relates to eviction on the ground of bonafide personal  necessity."

Thus, the first proceeding came to an end. 2.      In the second proceeding, by judgment and decree dated  8.3.2000, the trial court decreed the suit holding that the rent from  13.12.1984 was due from the respondent and thus he had committed  default in payment of rent and was liable to be ejected on the ground  of arrears of rent.  The respondent preferred an appeal in the High  Court being F.A. No.86/2000.  On 21.12.2000, the appeal of the  respondent was allowed and the judgment and decree of the trial  court was set aside.  The High Court held that since the appellants  herein did not take any steps to get the defence of the respondent  struck out while the case was pending before the Supreme Court the  appellants were precluded from getting a decree for default of the  period when the case was pending before the Supreme Court.  The  appellants herein preferred a letters patent appeal before the Division  Bench.  LPA was dismissed as not maintainable and thus the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

appellants are before us.  

3.      From the aforesaid facts, it is apparent that the  respondent/tenant got benefit of Section 12(3) of the Act in  the  previous proceedings and thus no decree for ejectment was passed  against him on the ground of arrears of rent under Section 12(1)(a) of  the Act.  The second proceeding of filing a suit for ejectment under  Section 12(1)(a) of the Act was initiated by the appellants  herein/landlord after service of notice demanding arrears of rent due  during the pendency of the previous proceedings.  It was contended  by the respondent that non-deposit of rent in court in the previous  proceedings or tendering rent to the landlord could not be considered  as arrears of rent; and that at best his defence against eviction could  have been struck out under Section 13(6) of the Act.  Non-payment of  rent during the pendency of the previous proceedings would not be  treated as arrears of rent to give a cause of action to the landlord to  file a suit on the ground of arrears of rent.  The High Court upheld this  contention and found that no ground under Section 12(1)(a) of the Act  was available to the appellants herein/landlord for non-payment of  rent by the respondent/tenant during the pendency of the previous  proceedings before the Court.

4.      It is contended by the learned counsel for the appellants that  during the pendency of the proceedings in the court after taking  benefit under Section 12(3) of the Act, a tenant is liable to deposit the  rent or to tender it to the landlord to avoid any decree under Section  12(1)(a) of the Act on the ground of arrears of rent.  A tenant having  taken benefit under Section 12(3) of the Act, is bound to pay the rent  to the landlord or deposit it in the court to avoid the decree for  ejectment under Section 12(1)(a) of the Act.  Since the  respondent/tenant had committed default in payment of rent for three  consecutive months, the High Court should have confirmed the  decree passed by the trial court on the ground under Section 12(1)(a)  of the Act, the tenant having failed to pay the rent to the landlord even  on service of notice of demand on him.   It is further urged that  Section 13(6) of the Act does not give a protection to the tenant from  the ejectment on non-payment of rent to the landlord for three  consecutive months. 5.      It is urged by the learned counsel for the respondent/tenant that  since the matter was pending consideration before the court the  appellants/landlord at best could have moved an application under  Section 13(6) for striking out defence if the respondent/tenant had not  deposited the rent as required under Section 13(1) of the Act, but the  said default in payment of rent would not be treated as arrears of rent  giving cause of action to the appellants/landlord to institute a suit for  ejectment on the ground of arrears of rent.  6.      To appreciate the submissions made by the learned counsel  appearing for the respective parties, it will be necessary to refer the  relevant provisions of the Act, which read as under:

"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;

xxx                                     xxx                             xxx

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

(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.

xxx                                     xxx                             xxx"

"13.  When tenant can get benefit of protection  against eviction. \026 (1) On a suit or any other proceeding  being instituted by a landlord on any of the grounds  referred to in Section 12 or in any appeal or any other  proceeding by a tenant against any decree or order for his  eviction, the tenant shall, within one month of the service  of writ of summons or notice of appeal or of any other  proceeding, or within one month of institution of appeal or  any other proceeding by the tenant, as the case may be,  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 till the decision of the suit, appeal or  proceeding, as the case may be.

xxx                                     xxx                             xxx

(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, appeal or proceeding, as the case  may be."

7.      A landlord can seek ejectment of his tenant from the premises  let out to him only on the ground/s enumerated in Section 12 of the  Act.  Clause (a) of sub-section (1) of Section 12 of the Act authorises  the landlord to seek ejectment of his tenant if he has neither paid nor  tendered the whole of the arrears of rent legally recoverable from him  within two months of the service of notice demanding the arrears of  rent.   Sub-section (3) of Section 12 puts a caveat on the right of the  landlord to get ejectment on the ground of arrears of rent if the tenant  makes payment or deposit as required by Section 13. However, by  virtue of the proviso to sub-section (3), the benefit given to the tenant,  on compliance of the payment of rent as provided under Section 13,  would be available to him only once in respect of that  accommodation, but on default in the payment of rent in respect of  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

same accommodation for three consecutive months he would not be  entitled for protection by depositing the rent as provided under  Section 13 in the subsequent proceedings initiated by the landlord for  ejectment of the tenant on the ground of arrears of rent.

8.      Section 13 of the Act requires that the tenant shall within one  month of the service of writ of summons or notice of appeal or of any  other proceeding deposit the rent when the proceedings are initiated  by the landlord on any of the grounds referred to in Section 12 or  within one month of institution of appeal or any other proceeding  when taken by the tenant against any decree or order for his eviction.    The period of one month given to the tenant for depositing the rent  from the date of the summons or the notice of appeal or of any other  proceeding could be extended by the court on an application made to  it.   The rent which is required to be deposited under the Section can  be in the court or it may be made over to the landlord.  The Section  further requires that after the deposit of the arrears of rent the tenant  shall continue to make deposit or pay month by month by 15th of each  succeeding month a sum equivalent to the rent at that rate till the  decision of the suit, appeal or proceeding, as the case may be.  Sub- section (5) of Section 13 provides that if the 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 recovery of possession on the  ground of default in the payment of rent by the tenant.  Sub-section  (6) gives an option to the landlord if the tenant does not deposit the  rent or pay it to the landlord as required under Section 13 to move an  application for the defence against eviction to be struck out.  Sub- section (5) of Section 13 has no application in a case when the  ejectment is not sought by the landlord on the ground of arrears of  rent, but the suit is instituted by the landlord on any other ground/s of  Section 12 of the Act.  Striking out of the defence of the tenant on an  application moved by the landlord, is a provision applicable in the suit  for ejectment on any of the grounds mentioned under Section 12  inclusive of under Section 12(1)(a) of the Act, whereas sub-section  (5) of Section 13 would apply only when the suit is instituted for  ejectment on the ground of arrears of rent under Section 12(1)(a) of  the Act. 9.      From the aforesaid, it is clear that Section 12(3) of the Act  provides for an exception to the general rule contained in Section  12(1)(a) that in the event tenant becomes a defaulter, he is liable to  be evicted.    From the proviso to Section 12(3) of the Act, it is clear  that the protection given to the tenant is only one time protection.   Proviso appended to Section 12(3) controls the main provisions.  The  exemption contained in Section 12(3), thus, is not extended to the  tenant who becomes a defaulter for more than once.  In view of the  aforesaid, we are of the opinion that once the tenant had availed the  benefit of the proviso to Section 12(3) of the Act, the said benefit was  not available to the tenant in committing a further default in payment  of rent for three consecutive months. 10.     The tenant can only be protected against ejectment on the  ground of arrears of rent in the subsequent proceedings if he deposits  the rent in the court or pay it to the landlord during the pendency of  the proceedings in the court or pay it to the landlord after the suit is  decided by the court.  If there is a default for three consecutive  months in the payment of rent and the rent has not been tendered  within two months of the service of notice by the landlord for payment  of arrears, a cause of action accrued in favour of the landlord to  initiate proceedings for ejectment of the tenant by filing a suit under  Section 12(1)(a) of the Act and thereafter Section 12(3) or Section  13(5) would not be attracted. 11.     The High Court has committed an error in applying the  provisions of sub-section (6) of Section 13 to the second suit initiated  by the landlord under Section 12(1)(a) on the ground of arrears of  rent.  That provision is only for the purpose of striking out of the  defence of a tenant if the rent is not deposited as required under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

Section 13 which has nothing to do with the provisions of sub-section  (3) of Section 12 or sub-section (5) of Section 13.   12.     In the present case, the trial court gave benefit to the tenant of  Section 12(3) of the Act in the previous proceedings.  The tenant by  not depositing the rent either in the court or paying it to the landlord,  has committed a default and there being three consecutive defaults in  the payment of rent as referred in proviso to sub-section (3) of  Section 12 of the Act and on non-payment of arrears of rent within  two months of the service of notice of demand, the landlord would be  entitled to file a second suit for ejectment on the ground of arrears of  rent and the court has to pass a decree for ejectment under Section  12(1)(a) of the Act. 13.     For the aforesaid reasons, Civil Appeal No. 1839/2004 is  allowed.  The impugned judgment dated 21.12.2000 passed by the  High Court in F.A. No. 86/2000 is set aside.  Plaintiffs’ (appellants  herein) suit is decreed for ejectment under Section 12(1)(a) of the Act  and trial court’s judgment and decree is confirmed.  Since the matter  is pending consideration for ejectment of the tenant since 1992, we  direct the executing court to execute the decree within the period of  three months from the date of filing of the execution application by the  landlord. 14.     In view of our order in Civil Appeal No. 1839/2004, no orders  are required to be passed in Civil Appeal No. 1840/2004.  Civil  Appeal No. 1840/2004 stands disposed of accordingly.