Shyam Bhagwan Dubey vs Sheikh Nizam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(MP) 872

1994 JLJ 143
S.K. Jha, C.J.
Shyam Bhagwan Dubey v. Sheikh Nizam and others
S.A. No. 564 of 1985; against the judgment and decree passed by Shri S.K. Tiwari, Ist Additional Judge to the Court of District Judge, Durg, in Civil Appeal No. 19-A of 1984, arising out of judgment and decree passed by Smt. Maitri Shrivastava, 2nd Civil Judge, 2nd Class, Durg, in Civil Suit No. 137-A of 1983; Decided on 9.12.1992.

Advocates:
J.P. Sanghi for appellant; A.K. Khaskalam for respondents.

Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- Ss. 13 (1) and 12 (1) (a) -- tenant depositing rent in accordance with S. 13 (1) -- eviction suit only under S. 12 (1) (a) for non-payment of rent -- Courts would grant relief against forfeiture of tenancy -- tenant has to give interest on rent amount with costs of the suit. (1969) 3 SCR 950 followed. [Para 4
       (2) Transfer of Property Act, 1882 -- S. 114 -- arrears of rent paid at the hearing of the suit -- Court may relieve tenant in default against forfeiture -- this power may also be exercised by appellate Court. [Para 5
       (3) Accommodation Control Act, 1961 (M.P.) -- S.12 (1) (a) and 13 (1) -- suit for eviction for non-payment of rent -- tenant has to deposit even time barred rent in order to get benefit of non-eviction.
       Relief against forfeiture is provided for it ensures to the advantage and benefit of both the parties. While the tenant enjoys the immunity from eviction for default in the payment of rent, the landlord gets the corresponding benefit of recovering even such arrears as are not legally recoverable. The harshness is commensurate with the advantage that either party obtains in such a state of affairs. AIR 1975 Pat. 283 (FB) relied on. [Para 6
       (4) Accommodation Control Act, 1961 (M.P.) -- S.13 (1) -- tenant depositing rent under -- cannot claim refund thereof even if he has deposited time barred rent -- for protection from eviction he has to deposit or pay full rent due. AIR 1975 Pat. 283 (FB) relied on. [Para 7
        ¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 13 ¼1½ rFkk 12 ¼1½ ¼d½ & vfHk/kkjh }kjk /kkjk 13 ¼1½ ds vuqlkj HkkM+s dk fu{ksi & csn[kyh dk okn dsoy /kkjk 12 ¼1½ ¼d½ ds v/khu HkkM+s ds vlank; ds fy, & U;k;ky; vfHk/k`fr ds leigj.k ds fo#) vuqrks"k nsaxs & vfHk/kkjh dks okn dh [kpZ lfgr HkkM+s dh jde ij C;kt nsuk gksxkA ¼1969½ 3 ,l lh vkj 950 vuqlfjrA ¿iSjk 4

       ¼2½ laifÙk varj.k vf/kfu;e] 1882 & /kkjk 114 & HkkM+s dh cdk;k dk lank; okn dh lquokbZ ij fd;k x;k & U;k;ky; O;fDrØeh vfHk/kkjh dks leigj.k ds fo#) vuqrks"k ns ldrk gS & ;g ‘kfDr vihy U;k;ky; }kjk Hkh ç;qDr dh tk ldrh gSA ¿iSjk 5

       ¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 12 ¼1½ ¼d½ rFkk 13 ¼1½ & HkkM+s ds vlank; ds fy, csn[kyh dk okn & vfHk/kkjh dks csn[kyh ls cpus dk Qk;nk ysus ds fy, le; oftZr HkkM+s dk Hkh fu{ksi djuk gksrk gSA

       leigj.k ds fo#) vuqrks"k nksuksa Ik{kksa dh lqfo/kk vkSj Qk;ns lqfuf‘pr djus ds fy, micaf/kr fd;k x;k gSA vfHk/kkjh dks tc fd HkkM+s ds lank; ds O;fDrØe ds dkj.k csn[kyh ls mUeqfDr dk miHkksx djrk gS] Hkw&Lokeh ,sls cdk;k dh olwyh dk Hkh laxr Qk;nk ysrk gS tks oS/k :Ik ls olwyh ;ksX; ugha gSaA ;g dBksjrk] dk;Zdyki dh ,slh fLFkfr esa] nksuksa Ik{kksa dks çkIr gksus okys ykHk ds le ifjek.k esa gSaA , vkb vkj 1975 iVuk 283 ¼iw.kZ U;k;ihB½ voyafcrA ¿iSjk 6

       ¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½ & /kkjk 13 ¼1½ & ds v/khu vfHk/kkjh }kjk HkkM+s dk fu{ksi & mlds çfrnk; dk nkok ugha dj ldrk Hkys gh mlus le; oftZr HkkM+k fuf{kIr fd;k gks & csn[kyh ls laj{k.k ds fy, mls laiw.kZ ns; HkkM+k vnk djuk gksxkA , vkb vkj 1975 iVuk 283 ¼iw.kZ U;k;ihB½ voyafcrA ¿iSjk 7

JUDGMENT

S.K. Jha, C.J.--1. The only substantial question which has been framed in this suit at the time of admission of its appeal is "whether the amount deposited by the tenant in compliance to the provisions of section 13 (1) of the M.P. Accommodation Control Act, 1961, can be allowed to be refunded to the tenant even though the tenant was in arrears of rent and had deposited the same to seek protection against eviction."

2. The only relevant facts for the disposal of this appeal are these:

There is a small shop which was let out by the appellant/landlord to the respondents/tenants/defendants round about the year 1972 or 1973. The respondents/tenants defaulted in payment of rent. Hence, the present suit was filed by the appellant/landlord for eviction of the respondents/tenants from the suit premises. The issues framed in the suit were:

(i) Whether the defendants could be evicted from the disputed premises or not?

(ii) Whether the defendants had defaulted in the payment of rent on account of which they could be evicted?

(iii) Whether the plaintiff/landlord was entitled to a sum of Rs. 150/- per month as rent or as compensation for occupation by the tenants?

The answer with regard to all these three issues were in favour of the landlord/appellant. It may be mentioned here that the question with regard to the rate of rent being Rs. 150/- per month which was claimed by the appellant landlord was disputed by the tenants/defendants who are respondents here. As already stated above, the trial Court on a discussion of evidence on record found that the claim of the plaintiff/appellant with regard to the rate of rent being Rs. 150/- per month was correct. All the three issues which were decided in favour of the appellant by the trial Court were upheld in appeal filed by the tenants/defendants in the Court of appeal below which had affirmed the decree for eviction.

3. The Court of appeal below, however, while upholding the decree directed the appellant to refund any amount deposited in terms of section 13 (1) of the M.P. Accommodation Control Act, 1961 (Act No. XLI of 1961) for the period before institution of the suit. It is against this direction which has been incorporated as a part of the decree of the lower appellant Court that the appellant ha& come before this Court. I think the point is simple and the appeal has to be allowed. The relevant portion of section 13 (1) of the Act of 1961 reads as follows:

"13 (1): On a suit ....... being instituted by a landlord on any of the grounds referred to in section 12 or in any appeal or any other proceedings.................the tenant shall, within one month of the service of writ of summons or notice of appeal.....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 upto 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." It is quite clear that such a provision for the protection of the tenant from eviction by the landlord or the peril and hazard of having his defence struck out under Sec. 13 (6) has been incorporated by subsequent insertion of section 13 (1), (2) and (6) of the Act with effect from 16.8.1983. This enabling provision has been incorporated beneficial to the defaulting or erring tenant as well as protecting the landlord's interest for damages for the use and occupation of the premises comprising the leasehold during the time that the protracted litigation continues in Courts of law. One thing which is remarkable is that the payment which is in deposit or payment of the rent t

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