Back
High Court Of Madhya Pradesh
Shiv Dayal and S. M. N. Raina, JJ.
FIRM GANESHRAM HARVILAS - Appellant
Versus
RAMCHANDRA RAO - Respondents
Second Appeal 235 Of 1968
Decided On : 01/30/1970
The words "any dispute" in sub-section (2) of section 13 of the Act are comprehensive enough in their import to cover every kind of dispute as to the amount of rent payable by the tenant. The dispute may relate to the rate of rent or period for which the tenant is in arrears, or the landlord not adjusting any dues despite an agreement, or the landlord denying payment alleged by the tenant. To put if differently, every dispute as to the amount of rent which is payable by the tenant will be a dispute within the meaning of sub-section (2). [Para 10
The dispute as to the amount of rent payable by the tenant may be initiated either by the landlord or by the tenant. [Para 12
Since the fixation of provisional rent under sub-section (2) is meant solely for the purposes of sub-section (1) and for no other purpose, nor it has any hearing on the merits of the dispute, which is ultimately to be decided in the final judgment of the Court, the defendant may raise a dispute even before he has filed the written Statement. A party who raises the dispute must do so at the earliest opportunity and must seek early fixation of provisional rent. [Paras 13 & 14
(2) Accommodation Control Act, 1961 (MP) - Ss.13 (1) & 13 (2) - dispute as to amount of rent raised - Court should extend time for deposits under sub-section (1) till the dispute is decided - after the decision the provisional rent becomes the basis of deposits.
As soon as a dispute under sub-section (2) is raised before the Court, it is its duty to fix provisional rent as soon as possible. The Court will extend time within the first part of subsection (1), if necessary, so that the tenant may be able to deposit rent within one month or the extended time, as the case may be. The word "thereafter" in second part of subsection (1) clearly means "after one month of the service of the writ of summons", or "after the time extended" under the first part. If the Court has extended time of one month to four months under the first part, the tenant will be required to deposit rent under the second part after the expiry of the period of four months. The word 'thereafter' does not necessarily mean the period commencing from the 31st day of the service of the writ of summons. [Paras 15 & 16
According to wording used in sub-section (1), the basis of calculation of rent to be deposited will be that rate at which the last payment before the institution of the suit was made. But this provision is controlled by sub-section (2), so that where provisional rent is fixed under that sub-section, such provisional rent becomes the basis of the deposits or payments. [Paras 9 & 20
(3) Accommodation Control Act, 1961 (MP) - S.13 (2) - fixation of provisional rent -nature of the enquiry for this purpose - distinction between an enquiry on dispute for the purposes of the suit and for fixation of provisional rent.
As the provisional rent to be fixed by the Court under sub-section (2) must be "reasonable" it is implicit that the Court must hold an enquiry and on the basis of the enquiry, it must fix a reasonable provisional rent. This enquiry cannot be the same as the trial and the determination of the issue which will arise in the suit pertaining to the dispute as to the amount of rent payable by the tenant. In the suit there will be an issue and after recording evidence of the parties, the issue will be decided finally in the judgment of the suit. Sub section (2) of section 13 cannot envisage an elaborate and parallel trial of the same issue as a preliminary trial. Moreover, the final decision of the issue will not fix "a provisional rent". Two things, therefore follow as a natural and necessary consequence: (1), that the enquiry must be preliminary and immediate and its disposal must be as expeditious as possible; and (2) the enquiry will be a summary one. [Para 19
The scope and size of the enquiry will depend upon the nature of the dispute and the material before the Court on the date on which it is called upon to make an order under Sub-section (2). No hard and fast rules can be formulated for this purpose. The Court may require the parties to file affidavits. The Court may even on perusal of documents filed by the parties forthwith fix a reasonable provisional rent. The Court has merely to satisfy itself prima facie what provisional rent will be reasonable. The discretion is wide hut has to be exercised judicially and objectively. Even documentary material present at that stage before the Court may be found to be enough to guide it in making the discretionary order. One thing, however, is certain that the stage of fixing a provisional rent is not one when the Court should enter into a full dressed trial or any elaborate enquiry. [Para 19
(4) Accommodation Control Act, 1961 (MP) - Ss.13 (1), (2) & (6) & 12 (3) - dispute raised but not pressed or dispute not specific - Court not fixing provisional rent-consequences.
Where no provisional rent is fixed, because the party raising the dispute did not press for it, and the Court also overlooked the dispute, the tenant must deposit rent as indicated in sub-section (1), or, at his own risk, deposit or pay such rent as he thinks is due. In the latter case, the tenant will have to bear the consequences if the Court, when the question is raised either under section 13 (6) or section 12 (3) of the Act, decides that the amount of rent payable by the tenant was a larger sum. [Para 22
If the tenant does not raise a specific dispute and pray for fixation of provisional rent and the Court also omits to fix a provisional rent, the tenant cannot, at the conclusion of the trial, claim protection of section (12) (3) of the Act on the ground that if provisional rent had been fixed, he would have complied with the provisions of section 13 (1). [Para 22
1968 JLJ 146 (FB) & 1966 JLJ 1028 relied on. 1963 JLJ SN 240, 1964 JLJ SN 169 1968 JLJ 367 & 1970 MPLJ SN 8 referred to.
( 1 ) THIS Second Appeal has been referred to this Bench in the following circumstances. The respondent brought a suit against the appellants for their ejectment from a non-residential accommodation and for recovery of arrears of rent. It was alleged that the monthly rent was Rs. 45/-as agreed between the parties. The defendant paid rent upto March 30, 1965, but did not pay any rent equivalent Citation: thereafter. The plaintiff served a notice dated December 29, 1965, on the defendants determining the tenancy on January 31, 1966, and to pay arrears of rent, Rs. 540/- from April 1, 1965, to March 31, 1966. This notice was served on defendant No. 2 on December 31, 1965. Since the defendants did not pay arrears of rent within two months of the notice, it was a ground for ejectment. Another ground for ejectment was that the plaintiff needed the suit premises for starting his own business.
( 2 ) ON June 19, 1966, a writ of summons was served on the defendants. On July 16, 1966, that is, within one month of the service of the writ of summons, the defendants deposited Rs. 720/-as arrears of rent. On July 18, 1966, they filed their written statement resisting both the grounds taken in the suit. They alleged that they were no doubt in arrears of rent as alleged by the plaintiff but the reason was that on July 10, 1960, the plaintiff had borrowed from the defendants a sum of Rs. 8252/ -. The defendants asked the plaintiff to repay the loan and to adjust the amount towards rent. The plaintiff went on assuring the defendants that this would be done. ( 3 ) THE trial Court passed a decree only under Section 12 (1) (a) of the M. P. Accommodation Control Act, 1961, (hereinafter called the Act ). The issue relating to genuine requirement was decided against the plaintiff. The defendants appealed but their appeal was dismissed.
( 4 ) THE defendants then preferred this second appeal. One of the contentions was that the defendants had raised a dispute relating to the amount of rent due. It was the duty of the trial Court to fix provisional rent under Section 13 (2) of the Act, which it did not do. The defendants had deposited the arrears of rent within one month of the service of the writ of summons. They were, therefore, entitled to the benefit of Section 12 (3) of the Act and it could not be said that they did not comply with the provisions of Section 13 (1) of the Act.
( 5 ) THIS second appeal was heard by Mr. Justice Golvalkar. He was of the opinion that since the question with regard to the interpretation of the expression "dispute as to the amount of rent" in Section 13 (2) of the Act frequently arises, it should be decided by a Division Bench.
( 6 ) THE questions we have to decide are these:- (
1) Whether 'dispute' within the meaning of Sub-section (2) of Section 13 of the M. P. Accommodation Control Act, 1961, is confined to a dispute relating to rate of rent? (2) Whether any enquiry will be made for the purposes of fixing provisional rent under Sub-section (2), and, if so, what will be its nature ? (3) Whether Sub-section (2) applies to the first part of Section 13 (1) or equivalent Citation: to the second, or to both ? (4) If the tenant disputed the amount of rent claimed by the landlord, but no provisional rent was fixed by the Court, could the tenant, at the conclusion of the trial of the suit, claim benefit of Section 12 (3) of the act on the ground that if provisional rent had been fixed, he would have complied with the requirements of Sub-section (1)?
( 7 ) AS we read Section 13 of the Act, it is in two parts, which would indicate while reproducing it as follows:-" (
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 to pay to the landlord an amount calculated at the r
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
