The main legal point established in the judgment is the statutory liability of the tenant to deposit or pay rent during the pendency of an appeal, the consequences of non-compliance, and the discretionary jurisdiction of the appellate court.

S.P. Srivastava, J.

1. Heard the learned counsel for the plaintiff-appellant as well as the learned counsel representing the defendants-respondents.

2. Perused the record.

3. The plaintiff-appellant had filed a suit being Original Civil Suit No. 28-A of 1984 against Kamarlal Soni praying for a decree of his eviction from the premises in dispute which was under his tenancy and further a decree for recovery of arrears of rent and damages for use and occupation. The aforesaid suit had been filed on the grounds envisaged under Sections 12 (1) (a) and 12 (1) (o) of the M.P. Accommodation Control Act. The plaintiff had alleged that the defendant, Kamarlal, had defaulted in the payment of rent for the period subsequent to 31-10-1981.

4. The trial Court on an appraisal of oral and documentary evidence brought on record came to the conclusion that relationship of landlord and tenant existed between the plaintiff and the defendant and the premises in dispute had been let out to the defendant at a rental of Rs. 40/- per month. The trial Court further, came to the conclusion that the defendant had failed to prove that any amount of rent due for the period subsequent to 1-11-1981 had been paid to the plaintiff within the time in spite of the service of the notice. In other words, the defendant was found to be a defaulter within the meaning of Section 12 (1) (a) of the M.P. Accommodation Control Act. However, since the defendant had complied with the conditions stipulated in Section 13 (1) of the aforesaid Act the trial Court relieved him from the decree of eviction exercising the jurisdiction envisaged under Section 12 (3) of the aforesaid Act which provides that 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 (1) of the Act.

5. So far as the question regarding the availability of the ground envisaged under Section 12 (1) (o) of the M.P. Accommodation Control Act was concerned, the trial Court came to the conclusion that the plaintiff had succeeded in establishing the aforesaid ground as well. But, exercising the jurisdiction envisaged under Section 12 (11) of the Act which provides that no Order for the eviction of a tenant shall be made on the ground specified in Clause (o) of Sub-section (1), if the tenant within such time as may be specified in this behalf by the Court vacates the portion or portions of accommodation not let to him and pays to the landlord such amount by way of compensation as it may direct, specified a period of two months from the date of the judgment to vacate the portion in dispute and pay to the landlord damages at the rate of Rs. 10/- per month for that portion of accommodation which had been taken possession of though not included in the accommodation let out to him.

6. The aforesaid decree passed by the trial Court was challenged by the plaintiff in a First Appeal which was filed on 26-11-1987. The notices of the appeal were duly served on the defendant who was represented by Shri Dandotiya, Advocate, who filed his appearance in the appeal on his behalf on 18-11-1988. On 5-10-1989 the plaintiff-appellant moved an application under Section 13 (6) of the M.P. Accommodation Control Act asserting that the defendant-respondent had not deposited the decretal amount i.e., the amount due under the decree passed by the trial Court and has also defaulted in depositing or paying the entire amount of rent due for the period subsequent to the date of decree and it was asserted that since during the pendency of the appeal the mandatory requirements contemplated under Section 13 (1) of the Act had not been complied with by the defendant his defence may be struck off. A copy of the aforesaid application was duly served on the counsel for the defendant, but in spite of several opportunities having been provided no objections were filed denying or controverting the assertions made by the plaintiff.

7. I