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HIGH COURT OF MADHYA PRADESH
SHIVDAYAL, J.
Chitra Kumar Tiwari and another
Vs.
Gangaram
S. A. No. 864 of 1965 from decree of Shri K. N. Singh, III Addl. District Judge, Jabalpur;
Decided on : 17-1-1966
On the plain meaning of section 13(6) of the Act, it is directory and the Court 'may' in exercise of its direction, refuse to strike out defence. The direction is indicated by the word 'may' in sub-section (6). AIR 1965 SC 585, AIR 1959 SC 422, AIR 1961 SC 849 and AIR 1962 SC 1694 referred to.
The object and purpose of this provision is to prevent dilatory tactics of the tenant in resisting a suit on frivolous grounds. The requirement is in terrorem. However, striking out the defence is an extreme step as it deprives the tenant of a very valuable right, that is, to resist the suit on the ground that any requirement under section 12(1) of the Act is not fulfilled. Therefore that power must be sparingly used and the defendant must not be visited with that penalty except in suitable cases, and only as a last resort, that is, where the Court is satisfied that the tenant is guilty of contumacy or positive mala fides. 1964 JLJ-SN 170, 1964 JLJ-SN 161 and AIR 1964 SC 1317 relied on. AIR 1964 SC 1341 & (1954) SCR 565 distinguished. DVIVEDI'S COMMENTARY page 338 and Khare's Accommodation control Act, 1961, page 269 cited. [Para 8]
The provision for striking out the defence under section 13(6) is in terrorem; it is discretionary; not mandatory. The Court may refuse to strike out the defence by condoning the delay in making payment or deposit required by section 13(1). The discretion must be exercised judiciously. The power to strike out the defence should be sparingly used, as it is an extreme step which should not be taken except in cases of contumacy or positive mala fides.
If a default under section 13 (1) escaped unnoticed in the trial Court and the suit was dismissed, a Court of appeal will not exercise the discretionary power under section 13 (6) to a strike out the defence. [Para 28]
If the Court does not take action on any delay made in depositing the rent in any particular month, it shall be deemed to have exercised discretion in favour of the tenant and condoned the delay. [Para 15]
(2) Accommodation Control Act, 1961 (M.P.) - Ss. 12(3), 13 (5) and 13(6) - scope and effect of the provisions - meaning and purpose of proviso to lection 12 (3) - conflict between seection 13 (5) and section 12 (3)--result.
Section 12 (3) of the Act is a new protection under the new Act. Patently enough, the legislature intended to give the tenant a further and final protection, that is to say, even if he was a defaulter and even if he did not pay the arrears of rent within two months of the service of a notice of demand, and the landlord institutes a suit for the enforcement of the right which has ripened under section 12 (1) (a), still, he shall not be evicted if he deposits or pays rent as required by section 13. [Para 26]
Refusal to strike out defence under section 13(6) does not revive the lost protection under section 12 (3). A default committed under section 13 entails two consequences which are undoubtedly distinct and independent of each other. As soon as there is a default, the tenant forfeits the protection which awaited him under section 12(3). There is no discretion bestowed upon the Court, if section 13 is complied with, which means the whole of it, the Court cannot refuse to dismiss a suit based on section 12(1)(a); conversely, if by reason of any default, it cannot be said that there has been compliance with the whole of section 13, the tenant does not earn that benefit which could be given him under section 12 (3). Now, all this has nothing to do with the question whether the Court should or should not order the defence against eviction to be struck out under section 13(6) because of the said default. There, the Court is clothed with a discretion. There the object and purpose are quite different. Even if the protection under section 12 (3) is forfeited, the tenant can still pursue his defence in spite of a default if the Court does not strike it out under section 13 (6). [Para 27]
In the implementation of section 12(3), the Court bas no discretion. If the tenant has earned the protection, no decree for eviction under section 12(1) (a) can be passed. On the other hand, any non-compliance with section 13(1)—even a single default-will not allow the tenant to acquire the protection which awaited him under section 12 (3). It is wrong to think that the said protection survives unless and until there are three consecutive defaults during the pendency of the suit. The proviso to section 12 (3) does not come into play in a pending suit. The "benefit" referred to in the Proviso is no other benefit than the dismissal under the enacting part of section 12 (3) of a suit for eviction under section 12 (1) (a), notwithstanding all its requisites being satisfied, on the sole ground of compliance with section 13; and such benefit is 'obtained' at the stage of the termination of the suit, not earlier. [Para 28]
The consequence of non-compliance with section 13 in relation to section 12 (3) is distinct and independent from the consequence which it may entail under section 13 (6). In the former case, the tenant does not earn the special protection against eviction; in the latter, he runs the risk of the defence against eviction being struck out. Refusal to strike out the defence under section 13 (6) does not revive the lost protection under section 12 (3).
The proviso to section 12 (3) is not a surplusage. Far from being otiose, its proviso is the life and soul of the scheme comprising sections 12 (1) (a), 13 (1) and 12 (3). It has a very significant purpose; it prevents from being perpetuated, or repealed the tendancy of a tenant to ever pay the rent except on the institution of a suit, which would have otherwise been the effect of the substantive part of section 12 (3).
Apparently section 13 (5) is substantial repetition of the enacting part of section 12 (3) but in reality it enacts a special provision for awarding costs to the landlord whose suit is dismissed merely by giving the benefit under section 12 (3). It is permissible to read 'although" immediately before "no decree or order shall be made" (and, for the sake of grammatical accuracy, to substitute "yet" for "but"). Undoubtedly, the wording of section 13 (5) is not happy. But, if it overlaps section 12 (3), to that extent, it is redundant and cannot prevail upon or override section 12 (3). [Para 28]
(3) Accommodation Control Act, 1961 (M. P.) - Ss. 12 (3) and 13(6)—tenant not depositing one month's rent in time-suit of landlord for eviction cannot be dismissed under 12 (3)-but the defence of the tenant cannot be struck out.
Even a single default under section 13 (1) takes away from the defendant tenant the protection under section 12 (3) of the Act, and if the rent for any month is deposited late by the tenant-defendant, the Court has no jurisdiction to dismiss the suit of the plaintiff landlord with the aid of section 12 (3). The tenant did not make payment or deposit 'as required by section 13, and thus, has not earned the protection which awaited him under section 12 (3). [Para 18]
But where the delay in making the default is such that the trial Court thought it fit not to strike out the defence, the defendant is entitled to resist the suit and the pleas in defence taken by him will remain open. [Para 29]
1. The suit from which the second appeal arises was instituted by Smt. Sahodra Bai and the present appellants Chitra Kumar and Laxman Kumar, for recovery of arrears of rent and ejectment of Gangaram respondent on the grounds that the tenant did not pay the arrears of rent due by him within two months of notice of demand under section 12(1) (a) of the M. P. Accommodation Control Act, 1961 (hereinafter called the 'Act') and that the plaintiffs genuinely required the suit accommodation for their residence under section 12 (1) (e) of the Act. The arrears of rent were claimed for 16 months at Rs. 13 per month from 1 April 1961 to 31 July 1962.
2. The suit was resisted by the defendant on the grounds that the plaintiffs are not the landlords; that the defendant had paid rent upto 30 September 1961; that he was further entitled to deduct Rs. 73-50 p. which he incurred on the repairs and that the plaintiffs did not bona fide require the suit accommodation.
3. In the trial Court the tenant deposited the entire arrears of rent as claimed in the suit, within one month of the service of writ of summons on him. Thereafter, he went on depositing rent every month as required under second part of section 13 (1) of the Act, except the rent for the month of December 1962, which should have been deposited by 15 January 1963 but was in fact deposited on 23 January 1963. However, this default escaped unnoticed in the trial Court.
4. The trial Judge held the plaintiffs to be the landlords of the suit house by virtue of section 2 (b) of the Act. He held that the tenant was not liable to be evicted as he had deposited arrears of rent within one month of the service of writ of summons on him. He further held that the plaintiffs did not need the house for their residence and that the accommodation in their possession was not insufficient to meet their requirements. In the result, he dismissed the suit.
5. The plaintiffs took an appeal and reiterated the ground of requirement for their own residence under section 12 (1) (e). The ground under section 12 (1) (a) was not raised in the memorandum of appeal. But, while the appeal was being heard, the appellants contended that the defence was liable to be struck out because the tenant did not comply with the provisions of section 13 (1) of the Act. During the pendency of the appeal Smt. Sahodra Bai died. An application for leave to amend the plaint was then made in the first appeal Court to introduce a new ground that the suit premises were also required for Chitra Kumar plaintiff.
6. The learned Judge of first appeal Court refused leave to amend the plaint. Regarding striking out the defence, he observed that the appellant did not point out for which particular months the defendant had made default in payment of rent under section 13 of the Act. Moreover, in his opinion, the provision being discretionarry, the trial Court should have been moved, and the defence could not be: truck out at the appellate stage in those circumstances. He then agreed with the trial Court in its finding on the third plaintiff's requirement of the suit premises. In the result, the appeal was dismissed except that the decree for costs was modified.
7. In this second appeal Shri Awasthi, learned counsel for the appellants contends that because of non-compliance with the second part of section 13 (1) of the Act, the defence was bound to be struck out under section 13 (6) of the Act, which provision is mandatory. The two sub sections of section 13 read thus :-
"(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 land lord 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 subsequen
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