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2009 Supreme(MP) 984
A.M. Naik, J.
Ahmed Ali v. Smt. Zahida Begam and others
Second Appeal No.405 of 1999 (Gwalior): against judgment and
decree, passed in Civil Appeal No.43-A of 1999 by
District Judge, Guna; Decided on 23.9.2009.
R.P. Rathi for appellant;
S.K. Jain for respondents.
Headnote:(1) Accommodation Control Act, 1961 (M.P.) -- S.13(2) -- delay in paying/depositing rent -- tenant-defendant depositing entire amount of auction to purchase house including tenanted premises -- having bona fide belief of becoming owner -- delay may be condoned.
Defendant-appellant had participated in the auction proceedings conducted by the Court and had offered a highest bid for purchasing the property which included the suit premises. His highest bid was accepted and consequently, he deposited the entire bid amount. Despite there being objections to auction proceedings he did not withdraw the money which was deposited by him pursuant to acceptance of his highest bid. It was only on 5.7.1995 that this Court in Writ Petition No. 1540/1991 set aside the auction proceedings. There is nothing wrong or mala fide on his part if he entertained genuinely the belief that his highest bid having been accepted by the Court he became owner of the suit premises and was not required to pay/deposit the rent.
Thus, it is found that in the facts and circumstances of the case there was sufficient cause for condonation of delay. Consequently, the application for condonation submitted before the lower appellate Court stands allowed and the delay stands condoned. AIR 1989 SC 2185 followed. [Paras 14 & 16
(2) Accommodation Control Act, 1961 (M.P.) -- Ss.12(1)(a), 12(3) and 13(5) -- first default in deposit of rent condoned -- no other default committed -- eviction decree under S.12(1)(a) is liable to be set aside giving benefit of Ss.12( 3) and 13(5). [Para 17
(3) Accommodation Control Act, 1961 (M.P.) -- S.12(1)(c) -- title of landlord denied after having deposited full amount of auction sale in his favour -- ground also not pleaded in plaint -- decree cannot be granted.
Defendant had participated in the auction proceedings and was adjudged as the highest bidder in the proceedings for auction of entire house which included the suit premises. He deposited the entire bid amount of Rs.40,000/- within time. Objections to auction were not accepted in the Courts below and issuance of sale certificate alone was awaited which could not be issued on account of stay granted by this Court. At that time defendant had a right to entertain a bona fide belief that he had become owner of the suit premises on account of having been purchased by him in the Court, auction and was not required to pay/deposit the rent. Auction proceedings were set aside on 5.7.1995 in Writ Petition No. 1540/ 1991. When the defendant came to know about quashment of auction proceedings, he deposited whole of the arrears of rent expressing thereby that he was prepared to accept the plaintiff as landlord. Had there been no quashment of auction proceedings his bona fide belief would have got converted into the reality. He did not insist to continue with his denial after auction proceedings were set aside by this Court. On the contrary he thereafter, immediately, accepted the plaintiff as landlord in view of the order of this Court in Writ Petition No. 1540/1991.
Thus, in the peculiar facts and circumstances of this case, denial on the part of defendant-appellant at early stages before setting aside of auction does not amount to denial of title within the meaning of section 12(1)(c) of the M.P. Accommodation Control Act, 1961. (2000) 1 SCC 451 followed. [Paras 23 & 25
¼1½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-Á-½ && /kkjk 13¼2½ && HkkM+k lank;A fu{ksi djus esa foyac && vfHk/kkjhA izfroknh us HkkM+s ds ifjlj lfgr x`g dks dz; djus ds fy, uhykeh dh laiw.kZ jde dk fu{ksi fd;k && mls Lokeh gksus dk ln~Hkkoukiw.kZ fo‘okl gS && foyac ekQ fd;k tk ldrk gSA
izfroknh&vihykFkhZ us U;k;ky; }kjk dh xbZ uhykeh dh dk;Zokfg;ksa esa Hkkx fy;k Fkk rFkk laifRr] ftlesa okn ifjlj lfEefyr Fkk] dk dz; djus ds fy, lcls Å¡ph cksyh yxkbZ FkhA mldh lcls Å¡ph cksyh yxkbZ FkhA mldh lcls Å¡ph cksyh Lohdkj dh xbZ rFkk ifj.kker%] mlus cksyh dh laiw.kZ jde fuf{kIr dhA ogk¡ uhykeh dh dk;Zokfg;ksa ij vkifRrRr;k¡ gksus ds ckotwn mlus og /ku okil ugha fy;k tks mlds }kjk mldh lcls Å¡ph cksyh dh Lohd`fr ds vuqlj.k esa fuf{kIr fd;k x;k FkkA 5-7-1995 dks gh bl U;k;ky; us fjV ;kfpdk dz-1540@1991 esa uhykeh dh dk;Zokfg;ksa dks vikLr fd;kA mldh vksj ls dqN Hkh xyr ;k vln~Hkkoiw.kZ ugha gS ;fn mlus okLro esa ;g fo‘okl eu esa j[k fy;k gS fd U;k;ky; }kjk mldh lcls Å¡ph cksyh Lohdkj fd, tkus ls og okn ifjlj dk Lokeh gks x;k gS rFkk mls HkkM+ dk lank;@fu{ksi djus dh vko‘;drk ugha FkhA
vr%] ;g fu"d"kZ fudkyk tkrk gS fd ekeys ds rF;ksa rFkk ifjfLFkfr;ksa esa foyac dh ekQh ds fy, i;kZIr dkj.k FkkA ifj.kker%] fupys vihy U;k;ky; ds le{k ekQh ds fy, izLrqr vkosnu eatwj gksrk rFkk foyac ekQ gksrk gSA , vkb vkj 1989 ,l lh 2185 vuqlfjrA iSjk 14 ,oa 16
¼2½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-Á-½ && /kkjk 12¼1½¼d½] 12¼3½ rFkk 13¼5½ && HkkM+s ds fu{ksi esa izFke O;frdze ekQ fd;k x;k && vU; dksbZ O;frdze ugha fd;k x;k && /kkjk 12¼1½¼d½ ds v/khu csn[kyh dh fMdzh /kkjk 12¼3½ rFkk 13¼5½ dk Qk;nk nsrs gq, vikLr gksus ;ksX; gSA iSjk 17
¼3½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-Á-½ && /kkjk 12¼1½¼10½ && vius i{k esa uhyke&fodz dh laiw.kZ jde dk fu{ksi fd, tkus ds i‘pkr~ Hkw&Lokeh ds gd dk izR;k[;ku && okni= esa Hkh vk/kkj dk vfHkopu ugha fd;k x;k && fMdzh iznku ugha dh tk ldrhA
izfroknh us uhykeh dh dk;Zokfg;ksa esa Hkkx fy;k Fkk rFkk mls okn ifjlj lfgr laiw.kZ x`g dh uhykeh dh dk;Zokfg;ksa esa lcls vf/kd cksyh yxkus okys ds :i esa U;k;fu.khZr fd;k x;k FkkA mlus cksyh dh laiw.kZ jde :-40]000@& le; ds Hkhrj fuf{kIr dhA fupys U;k;ky; esa uhykeh ij vkifRrRr;k¡ xzg.k ugha dh xbZa rFkk ek= fodz; izek.ki= tkjh gksuk izrhf{kr Fkk tks bl U;k;ky; }kjk jksd eatwj gksus ds dkj.k tkjh ugha gks ldrkA ml le; izfroknh dks ;g ln~Hkkoiw.kZ fo‘okl eu esa j[kus dk vf/kdkj Fkk fd mlds }kjk dz; fd, tkus ds dkj.k og okn&ifjlj dk Lokeh gks x;k Fkk rFkk mls HkkM+s dk lank;@fu{ksi djus dh vko‘;drk ugha FkhA fjV ;kfpdk dz-1540@1991 esa 5-7-1995 dks uhykeh dh dk;Zokfg;k¡ vikLr dh xbZaA tc izfroknh dks uhykeh dh dk;Zokfg;k¡ vfHk[kafMr gksus ds ckjs esa irk pyk] mlus HkkM+s dh laiw.kZ cdk;k rn~}kjk ;g vfHkO;Dr djrs gq, fuf{kIr fd;k fd og oknh dks Hkw&Lokeh ds :i esa Lohdkj djus ds fy, rS;kj FkkA ;fn uhykeh dh dk;Zokfg;k¡ vfHk[kafMr ugha dh xbZ gksrha] mldk ln~Hkkoiw.kZ fo‘okl okLrfodrk esa ifjofrZr gks tkrkA bl U;k;ky; }kjk uhykeh dh dk;Zokfg;k¡ vikLr djus ds i‘pkr~ mlus vius izR;k[;ku dks tkjh jpkus ij cy ugha fn;kA blds foijhr rRi‘pkr~ mlus fjV ;kfpdk dz-1540@1991 esa bl U;k;ky; ds vkns‘k dks n`f"V esa j[krs gq,] rqjar oknh dks Hkw&Lokeh ds :i esa Lohdkj fd;kA
vr%] ekeys ds fof’k"V rF;ksa rFkk ifjfLFkfr;ksa esa] uhykeh vikLr gksus ds iwoZ izkjafHkd izdzeksa esa izfroknh&vihykFkhZ dh vksj ls izR;k[;ku e-iz- LFkku fu;a=.k vf/kfu;e] 1961 /kkjk 12¼1½¼10½ ds vFkZ ds varxZr gd ds izR;k[;ku dh dksfV esa ugha vkrk gSA ¼2001½1 ,l lh lh 451 vuqlfjrA iSjk 23 ,oa 25
1. 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 paragraphs 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 upto 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-l 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 owner appellate Court in the following manner:
"So far as the bona fide on the part of the appellant not to deposit the rent is concerned, it is pleaded that Ahmed Ali appellant had purchased the property in auction sale. He had deposited 1I4th of the bid money amounting to Rs.10,000/- on 24th 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 nor 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, 1990. 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 prepa
