1991 Supreme(MP) 746

IN THE HIGH COURT OF MADHYA PRADESH
M.W. DEO, J.
Balibai - Appellant
Vs.
Vidyawati - Respondents
S.A. No. 556 of 1975 (I)
Decided On : 09-09-1991

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S. 12 (1) (a) – whole arrears of rent deposited by tenant – no decree for eviction can be passed under.

       (2) Accommodation Control Act, 1961 (M.P.) – S. 12 (1) (c) – title of legal representatives of the landlord denied by legal representatives of tenant – disclaimer not made a ground for eviction – no issue framed or tried – no decree can be passed.

        Short Note

       1. The defendants/appellants in the written – statement denied relationship of the landlord and tenant and alleged that Pannalal used to carry out repairs; that they were in possession for a very long time and that the defendants had become owner, of the suit – premises as no rent was demanded or paid by them at any time. Consequently liability to pay arrears rent was also denied.

       2. The trial Court by its judgment and decree held that the appellants were tenants and were liable to pay rent which was within limitation and also granted decree for eviction. The first appellate Court mainly dealt with the question of relationship between landlord and tenant and confirmed the decree for eviction.

       Held : The learned counsel for the appellants submitted that the appellants have deposited all arrears of rent now and that in view of the dictum in the case) of Lacchobai Rathor v. Registered Shri Murti God Madan Mohanji (1988 JLJ 213), a decree for eviction could not be granted against them under Section 12 (1) (a) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). The contention of course implies that the appellants have given up their contest regarding relationship of landlord and tenant and accepted themselves to be tenants of the respondents on a monthly rent of Rs. 8/ – . Now T.N. Singh, J., in the case of Lacchobai (supra) held as follows : –

       “A conjoint reading of sub – section (1), (5) and (6) of Section 13 and Section 12(3), according to me, is clearly menifestive of legislative intent that if a tenant sue under section 12(1) (a) made deposit for payment of rent, due and payable by him, at any time, with the leave of the trial Court or appellate Court, his eviction cannot be ordered by such a Court as also by an executing Court. That indeed is the inexorable mandate of Section 13 (3) which in the crowing glory of the benevolent provision or section 12 (3) which expressly limits also tenant's statutory protection in terms of the proviso to strike a reasonable balance between an individual's right to his property and important social cause.”

       3. I respectfully agree with the theme regarding Section 12 (1) (a) and section 13 of the Act put forth by T.N. Singh, J., in Lacchobai’s case (supra) though I am not expressing anything regarding extension of the theme to the execution proceedings because that is not the controversy before me. However, stated in simple words, the theme according to me is that as regards Section 12 (1) (a) of the Act, a landlord cannot succeed in getting a decree for eviction on the ground of non – payment of arrears if the tenant deposits or pays all such arrears. In other words, a tenant cannot occupy without paying rent and a landlord cannot evict [under Section 12 (1) (a)] if the tenant pays rent at any time. The non – payment of rent within a statutory limit of two months does not result in a penal consequence in the shape of right to the plaintiff to evict the tenant even if tenant were to pay all rent. As T.N. Singh, J., very aptly observed, a reasonable balance between the landlord's right to his property and the protection to the tenant to occupy till the time he pays rent has to be struck atleast vis – a – vis Section 12 (1) (a) ibid.

       4. I am, therefore clearly of the view that notwithstanding the fact that the appellants had contested issue of relationship of landlord and tenant and put all kinds of conditions of payment of rent, yet they arc entitled, in light of the theme stated above, to the benefit of protection under the Act if the tenant had paid all arrears, even at the stage of second appeal. Of course this position holds goods vis – a – vis only ground under clause (a) of Section 12 (1) of the Act.

       5. The learned counsel for the respondents very strongly contended that such lenience and condonation cannot be and should not be granted to appellants who had committed all kinds of default and had even denied relationship of landlord and tenant. The simple answer, as stated above, is the theme or the legislative intent under Section 12 (1) (a) ibid. The appellants certainly deserve to succeed on that count.

       6. The learned counsel for the respondents contended that in reply to quit notice, Ex. P – 2, the appellants denied the title of the respondents in reply Ex. P – 3 and it was stated in the plaint that this was one of the reasons why the respondents were obliged to file the suit for eviction and as such a case of disclaimer is clearly made out to support decree for eviction under Section 12 (1) (c) of the Act. It was rightly said that the stand was taken to support a decree for eviction because the learned counsel for the appellants is correct when he says that the trial Court or the first appellate Court never considered or tried issue whether on facts and in circumstances of the case, a decree for eviction was either asked or could granted under Section 12 (1) (c) of the Act on the ground of disclaimer. A reading of judgment of the trial Court and of the first appellate Court leaves no room for doubt that neither of them addressed themselves nor were they addressed by the parties on the question of ground of disclaimer as grounds for eviction under clause (c) of Section 12 (1) ibid.

       7. The learned counsel for the respondents referred to the case of (Sri Sri Sri) Krishna Chandra Gujapti Narayan Deo v. Challa Ramanna and others (AIR 1932 Privy Council 50), and I think that it supports the appellants more than the respondents. The law laid down is that a point not mentioned in the judgment must be said to have been given up. As stated above, the point of disclaimer was not put in issue, was not tried and was not adjudicated by the trial Court and so was it not agitated much – less decided in the first appellate Court and, therefore, even if allegation supporting it is to be found in the plaint it must be deemed to have been given up.

       8. It is difficult for me to accept the bald contention of the learned counsel for the respondents that a disclaimer ipso facto gives rise to a ground for eviction under clause (c) of Section 12 (1) ibid. It is true that it is not necessary to prove and establish clearly that the denial of the title of the landlord by the tenant must result in adversely affecting his interest. At the same time, it cannot be put as a rule of thumb that the denial per se constitutes ground under clause (c) of Section 12 (1) of the Act. Taking a case of a tenant facing a landlord with a derivative title the tenant can deny the relationship of landlord and tenant between him and such landlord and yet it would not be just to say that he has made such disclaimer so as to invite the punishment of eviction under clause (c) ibid. Consequently if a tenant disclaims and if there are circumstances which really do not bring it within the knowledge of legal representatives as to who was the landlord, it would not be just to visit such legal representatives of the tenants with the punishment of eviction if they deny relationship of landlord and tenant though the same is later proved at the trial. 1988 JLJ 213 and AIR 1932 PC 50 relied all. Appeal allowed.