The main legal point established in the judgment is that the tenant's bona fide belief and the requirement for the landlord to establish that the denial of title was not bona fide influenced the court's decision.

JUDGMENT

This appeal arises from the judgment and decree for eviction passed in favour of landlord by the Courts below in concurrent manner.

2. Relevant facts giving rise to the present appeal are that a suit was instituted by Mohammad Nazir Khan (predecessor of respondents) for eviction and arrears of rent in respect of the suit premises situated on first floor as described in paragraph 1 and 2 of the plaint and shown in red colour in the plaint map. Defendant was inducted as a tenant in the suit premises by the plaintiff on rent @ Rs. 30 p.m. Rent was paid up to 31-12-1980. Thereafter, since the respondent was in arrears of rent w.e.f. 1-1-1981, a notice of demand vide Ex-P/1 dated 9-10-1986 was issued by registered post. It was served upon the defendant on 13-10-1986. Despite this notice, defendant did neither pay whole of the arrears of rent nor tender it. Consequently, plaintiff instituted a suit for eviction on ground under section 12(1)(a) of M. P. Accommodation Control Act, 1961 and arrears of rent for a period of three years preceding institution of the suit. After institution of the suit, present respondents were substituted in place of original plaintiff on account of his death.

3. Defendant/appellant submitted written statement, stating therein that he had obtained the suit premises on rent @ Rs. 30/-p.m. from the original plaintiff. However, house comprising the suit premises was put to auction by the Court which was purchased by him jointly with Nanhi Bai for a sum of Rs. 40,000/- in the year 1980. Entire money was deposited by him and Nanhi Bai in the Court. Sale certificate was awaited on account of stay granted by the Court. Second Appeal No. 221/1986 was pending before this Court, at the time of submission of written statement. On account of purchase, relationship of tenant and landlord between the plaintiff and defendant ceased to exist and the suit was, therefore, liable to be dismissed.

4. Learned trial Judge, after recording the evidence decreed the suit in favour of plaintiff vide judgment and decree dated 30-1-1992. Appeal preferred against it was also dismissed vide judgment and decree dated 24-7-1996. Aggrieved by it, appellant preferred Second Appeal No. 277/1996 which was partly allowed and the matter was remitted back to the lower appellate Court in the following manner:

So far as the bonafide on the part of the appellant to not to deposit the rent is concerned, it is pleaded that Ahmed Ali appellant had purchased the property in an auction sale. He had deposited 1/4h of the bid money amounting to Rs. 10,000/- on 24th of December, 1980 and a further amount of Rs. 30,000/- in the Court on 9th of January, 1981 in an execution case. He submits that on account of a decision given by this Court in Writ Petition No. 1540/91 decided on 5th of July, 1995, the auction sale made in his favour was set at naught. This, according to him, would be another factor which should have been taken note of by the first appellate Court.

There appears to be some justification in the argument raised by the learned counsel for the appellant. The matter is, accordingly, remanded to the first appellate Court who would re-decide the matter in the light of the facts indicated above. The question as to whether delay is to be condoned or not would of course be a matter which would be within the discretion of the first appellate Court but then this discretion is to be exercised judiciously.

5. In the meantime, auction in favour of the defendant/appellant was set aside by this Court on 5-7-1995 in Writ Petition No. 1540/1991 which came into notice of the defendant on 20th July, 1995. On the next date i.e. 21st July, 1995, the entire arrears of rent were deposited with an averment that the defendant having deposited the entire bid amount as the highest bidder in the auction, was under an impression that he was not required to pay/deposit the rent. Since the auction was finally set aside on 5-7-1995, defendant was consequently prepared to p