IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA ON THE 5^th OF SEPTEMBER, 2022 MISC. PETITION No. 3654 of 2022 BETWEEN:-

AADIL S/O AZHAR MANSURI, AGED ABOUT 38 YEARS, OCCUPATION: MECHANIC BALIPUR ROAD WARD NO. 1, TEHSIL MANAWAR DISTRICT DHAR (MADHYA PRADESH)

.....PETITIONER (BY SHRI DURGESH SHARMA-ADVOCATE )

AND FIRDOUS BEE W/O SALIM KHAN MANSOORI, AGED ABOUT 45 YEARS, OCCUPATION: BUSINESS/ HOUSE WIFE MELA MAIDAN WARD NO. 05, TEHSIL MANWAR DISTRICT DHAR (MADHYA PRADESH)

.....RESPONDENTS (BY MS BHARTI LAKKAD-GOVERNMENT ADVOCATE)

This petition coming on for admission. this day, the court passed the following:

ORDER

1. By this petition preferred under Article 227 of the Constitution of India the petitioner/defendant has challenged the order dated 13-07-2022 passed by the trial Court, whereby an application under Order 13 (1) (6) of MP. Accommodation Control Act, 1961 filed by plaintiff/respondent has been allowed and his defence against eviction has been struck off.

2. The plaintiff has instituted an action against the defendant on Signature Not Verified grounds under Section 12(1) of the Act, 1961 contending that there is a Signed by: RASHMI Signing time: 12r-Oeclta-2t2ionship of landlord and tenant between the parties and that defendant is in arrears of rent. The defendant in his written statement has denied such relationship and has contended that he is in occupation of the suit premises as a licencee. He has stated that he is not liable to pay any rent to plaintiff.

3. Plaintiff then filed an application under Section 13 (6) of the Act, 1961 for defence of defendant against eviction to be struck off submitting that he has not complied with the provisions of Section 13(1) of the Act, 1961. The defendant filed his reply to the said application which has been allowed by the trial Court observing that despite lapse of period of thirty days from the date of service of summons upon him, defendant has not deposited the entire arrears of rent.

4. Learned counsel for the petitioner submits that the impugned order is illegal having been passed without complying with the provisions of Section 13 (2)(3) of the Act, 1961. Trial Court ought to have first determined the quantum of arrears of rent liable to be paid by the defendant and then only should have decided plaintiff’s application. The rate of rent has also not been decided by it. The relationship of Landlord and Tenant between the parties has not been established by the plaintiff. Since, defendant is not tenant of plaintiff he is not liable to pay any rent.

5. The suit has been filed by the plaintiff for eviction of the defendant under the Act, 1961 contending relationship of landlord and tenant between him and defendant. He shall succeed if the said relationship is established and shall fail if it is not. However, at the present stage, while determining application under Section 13(6) of the Act, 1961 it was not required for the trial Court to have given any finding as regards such a relationship. It has nowhere been Signature Not Verified provided that prior to passing of an order under Section 13(6) it has to be Signed by: RASHMI

5:36:28 PM found that relationship of landlord and tenant actually exists between the parties.

6. The defendant has taken a plea that he is not tenant of plaintiff and has never paid any rent to him and is not liable to pay any arrears of rent or the current rent. There is hence no dispute between the parties as regards the quantum of arrears of rent or the rate of rent. The provisions of Section 13(2) and (3) of the Act, 1961 hence do not get attracted. Since, defendant has taken a specific plea that he is not tenant of plaintiff he does not have a right to defend the suit on grounds under Section 12(1) of the Act, 1961 without payment of arrears of rent and current rent. He shall fail or succeed on the basis of plea taken by him. All the other general defences as available to the defendant under the general law shall be av