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High Court Of Madhya Pradesh
U. N. Bhachawat, J.
TEJ KUMAR JAIN - Appellant
Versus
PURSHOTTAM - Respondents
Second Appeal 231 Of 1979
Decided On : 02/18/1980
ACCOMMODATION CONTROL ACT - GROUNDS FOR EVICTION - SECTION 12 (1) (A) - TENDER OF RENT - SECTION 24 (1) - INTERPRETATION - RENT PAYABLE IN ADVANCE - NOTICE OF DEMAND - ARREARS OF RENT.
Fact of the Case:
Plaintiff-landlord filed a suit for ejectment against the defendant-tenant on the grounds enumerated under Sections 12 (1) (a), 12 (1) (c), and 12 (1) (e) of the M. P. Accommodation Control Act, 1961 (the 'Act'). The trial court and the lower appellate court negatived the plaintiff's contention regarding the grounds under Section 12 (1) (a) and 12 (1) (e) of the Act, but accepting the case of the plaintiff under Section 12 (1) (e) of the Act, decreed the suit.
Finding of the Court:
The High Court held that the finding of the lower appellate court that the ground under Section 12 (1) (a) of the Act was not made out was vitiated because the lower appellate court had misread the evidence and held that the defendant had tendered the arrears of rent but the plaintiff purposely avoided accepting them. The Court also held that in view of Section 24 (1) of the Act, on the date of the notice of demand, the rent demanded had not become due, and therefore no rent was in arrears, and accordingly Section 12 (1) (a) of the Act did not come into play on account of the non-payment of the demanded rent within the statutory period in compliance with the notice.
Issues: 1. Whether the finding of the lower appellate court that the ground under Section 12 (1) (a) of the Act was not made out was vitiated due to misreading of evidence and holding that the defendant had tendered the arrears of rent which the plaintiff purposely avoided accepting? 2. Whether in view of Section 24 (1) of the Act, on the date of the notice of demand, the rent demanded had not become due, and therefore no rent was in arrears, and accordingly Section 12 (1) (a) of the Act did not come into play on account of the non-payment of the demanded rent within the statutory period in compliance with the notice?
Ratio Decidendi: 1. The Court held that there was no evidence to support the conclusion of the lower appellate court about the alleged tender and refusal by the plaintiff. The trial court had rightly concluded that there was no tender or any rent by the defendant No. 1 after the receipt of notice Ex. P. 5 by him. 2. The Court held that Section 24 (1) of the Act contemplates two classes of cases: (i) where the parties have by contract fixed the time for payment of rent, and (ii) where there is no specific time fixed by the parties. In the instant case, there was a specific agreement to pay the monthly rent in advance, and therefore the rent became due even though the month of tenancy had not expired. Section 24 (1) of the Act also provides that the tenant shall pay rent within the time fixed by the contract.
Final Decision: The appeal was dismissed, and the defendant was granted six months' time to vacate the premises.
( 1 ) THIS is an appeal arising out of a suit for ejectment by the defendant against the judgment and decree dated the 28th June, 1979 of the Court of First additional District Judge, Indore in Civil First Appeal No. 37-A of 1978, whereby it has confirmed the judgment and decree dated 28th July, 1977, of the Court of Third Civil Judge, Class II, Indore in Civil Suit No. 8a of 1972.
( 2 ) PLAINTIFF-LANDLORD (respondent herein) had filed the present suit against the defendant (appellant herein) for evicting him from the suit accommodation basing the claim for eviction on the grounds enumerated under Sections 12 (1) (a), 12 (1) (c) and 12 (1) (e) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as the 'act' ).
( 3 ) THE two courts below negatived the plaintiff's contention regarding the ground under Section 12 (1) (a) and 12 (1) (e) of the Act, but accepting the case of the plaintiff under Section 12 (1) (e) of the Act, decreed the suit.
( 4 ) IT may be mentioned that the learned counsel for the plaintiff while supporting the decree on the ground under Section 12 (1) (e) of the Act which was found in favour of the plaintiff also asserted in support to the impugned decree, that the ground under Section 12 (1) (a) of the Act which was decided against the plaintiff should have been decided in favour of the plaintiff.
( 5 ) LEARNED counsel for the defendant had raised a preliminary objection that as the plaintiff did not file a cross-objection within one month from the date of the service of the summons of this appeal, the counsel for the plaintiff was not entitled to assail the finding of the Courts below regarding the ground under section 12 (1) (a) of the Act.
( 6 ) SUBMISSION of the learned counsel for the appellant in support of his preliminary objection was that earlier to the Civil Procedure Code Amendment act of 1976 (Act No. 104 of 1976), the position was that a respondent could support the decree of the Court below by asserting that the matter decided against him should have been decided in his favour without filing any cross-objection; but after the amendment by the said Amendment Act, under Order 41, Rule 22 of the Code of Civil Procedure (hereinafter referred to as 'the code'), position, has changed. He submitted that even to support the decree by the successful party on the question decided against him filing of cross-objection within the prescribed period of limitation is imperative.
( 7 ) LEARNED counsel for the respondent in counter submitted that the position remains unchanged even after the amendment in Order 41, Rule 22 of the Code and the respondent has a right to support the decree, assailing the finding given by the lower court against him on a particular point.
( 8 ) THE decision of the preliminary objection involves the interpretation of Order 41, Rule 22 of the Code as it stands, at present. The relevant Rule 22 (1) is as under".
"order XLI--Appeals from Original Decree, xxxxx upon hearing respondent may object to decree as if he has preferred separate appeal-22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 'a' (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection)'a' to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. B (Explanation--A respondent aggrieved by a finding of court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficie
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