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Cites 2 docs
Jagadish Kapoor vs New Education Society Through ... on 26 August, 1967
B.C. Kame vs Nemi Chand Jain on 5 March, 1970
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Supreme Court of India
Shyamcharan Sharma vs Dharamdas on 4 December, 1979
Equivalent citations: 1980 AIR 587, 1980 SCR (2) 334
Author: O C Reddy
Bench: Reddy, O. Chinnappa (J)
           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
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.

S. S. Khanduja and Lalit Kumar Gupta for the Appellant. T. P. Naik and S. K. Gambhir for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J.-The respondent-landlord sought eviction of the appellant-tenant from the suit premises an two grounds: (i) failure to pay arrears of rent of Rs. 158.25 despite service of notice of demand and (ii) bonafide requirement of premises for landlord's personal occupation. The second ground was rejected by all the sub- ordinate courts and we are no longer concerned with that ground. In regard to the first ground, the trial Court found that the tenant was 336 in arrears of payment of rent but that the tenant was entitled to the Protection of s. 12(3) of the Madhya Pradesh Accommodation Control Act, 1961, as the tenant had deposited the arrears of rent within the time allowed by the Court on his application. When the appeal preferred by the landlord was pending before the Additional District Judge, Satna, the tenant filed an application for condonation of delay R in depositing the rent, month by month, which had become payable after the filing of the suit, as stipulated by s. 13(1) of the Act. It appears that, on several occasions, when the suit and the appeal were pending before the trial court and the appellate court respectively, the tenant had deposited the monthly rent a day or two or three, beyond the prescribed date. The amount had been received by the court and drawn out by the landlord, apparently without any protest. Taking advantage of the filing of the tenant's application for condonation of delay, the landlord contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non-compliance with the provisions of s. 13 ( 1 ) of the Madhya Pradesh Accommodation Control Act. The appellate court negatived the landlord's contention and dismissed the appeal. The landlord preferred a Second Appeal to the High Court of Madhya Pradesh. The High Court, holding that the court had no power to extend time, decreed the suit for eviction. The tenant, having obtained special leave, has appealed to this Court.

Shri Khanduja, learned counsel for the appellant, raised two contentions before us. The first contention was that the High Court was wrong in holding that the Court had no power to condone the delay in depositing the monthly rent falling due after the filing of the suit for eviction. The second contention was that, in the circumstances of the case. the respondent must be considered to have waived or abandoned the right to insist on dis-entitling the tenant of the protection to which he was otherwise entitled. Shri Naik, learned counsel for the respondent, contended to the contrary on both the questions.

The Madhya Pradesh Accommodation Control Act, 1961, was enacted, as recited in the statement of objects and reasons, "for the purpose of controlling, letting of and rents of residential and nonresidential accommodation and giving adequate protection to tenants of such accommodation in areas where there is dearth of accommodation". Section 12(1) of the Act provides that no suit shall be-filed ill any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds specified therein. Several grounds are specified, such as, failure to pay the arrears of rent after the service of notice of demand, unlawful sub-letting of the whole or 337 part of the accommodation, creation of a nuisance, bonafide requirement of the accommodation by the landlord for his own occupation, causing of substantial damage to the accommodation etc. etc. The ground with which we are concerned is that mentioned in s. 12(1) (a) and-it is: "that the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner". Thus, where a tenant is in arrears of rent, a landlord is obliged, before instituting a suit for eviction on that ground, to serve a notice of demand calling upon the tenant to pay or tender the whole of the arrears of rent within two months of the date of service of the notice. S. 12(3) provides that an order for the eviction of a tenant shall not be made on the ground specified in s. 12(1) (a), if the tenant makes payment or deposit as required by s. 13. S. 13,sub-ss. (1), (5) and (6) which are relevant for the present purpose are as follows:

"13. (1) on a suit or proceeding being instituted by the landlord on any of the grounds referred to in s. 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.
xx xx xx xx xx (5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.
(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."
338

It is true that in order to entitle a tenant to claim the protection of s. 12(3), the tenant has to make a payment or deposit as required by s. 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straight away, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by sub-ss. (5) and (6) of s. 13. Since there is a statutory provision expressly prescribing the consequence of non- deposit or non-payment of the rent, we must look to and be guided by that provision only to deter mine what shall follow. S. 13 (6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him. S. 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction. In other words, the Court, having regard to all the circumstances of the case, may or may not strike out the defence. If s. 13 were to be construed as mandatory and not as vesting a discretion in the Court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by s. 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction. We think that s. 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by s. 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by s. 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Another construction may lead, in some cases, to a perversion of the object of the Act namely, 'the adequate protection of the tenant'. S. 12(3) entitles a tenant to claim protection against eviction on the ground specified in s. 12(1) (a) if the tenant makes payment or deposit as required by s. 13. On our construction of s. 13 that the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection. of s. 12(3). One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment.

339

of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit. Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in s. 13(1) as the consequence of non- payment was proposed to be dealt with by a separate sub- section. namely s. 13(6). Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would. therefore, be no question of striking out the defence and, so, there would be no question of s. 13(6) covering the situation.

In Jagdish Kapoor v. New Education Society, a full bench of the Madhya Pradesh High Court held that s. 13((6) of the Madhya Pradesh Accommodation Control Act did not make it obligatory for the court to strike out the defence but vested in the court a discretion to strike out or not to strike out the defence. Having so held, the full bench stopped short of giving full effect to their conclusion by holding D. that the Court could condone the default and refuse to strike out the defence but it could not give the benefit of s. 12(3) or 13(5) to the tenant. We do not see any justification for adopting this narrow construction of ss. 12 and 13. In our view the discretion given to the court under s. 13(6) must be held to imply a discretion to condone the delay and extend the time in making deposit or payment under s. 13(1). In B. C. Kame v. Nem Chand Jain, a tenant had committed default both in payment of arrears as well as in payment of the monthly rent which became payable after the filing of the suit. This Court took the view that on an application made by the tenant time for deposit or payment could be extended. Though the observations made by the Court read as if they were made with reference to the default in payment. Of arrears, a reference to the facts of the case as set out in the very judgment shows that there was default both in payment of the arrears of rent that had accrued before the filing of the suit and in payment of the monthly rent that fall due after the filing of the suit.

We are accordingly of the opinion that the Court has the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit. In that view it is not necessary to express our opinion on the question of waiver or abandonment. The appeal is allowed with costs and the suit for eviction is dismissed.

N.V.K.					     Appeal allowed.
340