1. This is defendant’s first appeal challenging the judgment and decree dated 24.06.2017 passed by the learned Additional District Judge, Raipur (C.G.) in Civil Suit No. 50-A/2012 by which the learned trial Court has decreed the suit and directed the defendant to hand over the vacant possession of the part of the suit house No. 39/25 to 32 to plaintiff within two months on the ground that despite getting protection under Section 13(1) of the Chhattisgarh Accommodation Control Act, 1961 (for short, 'the Act, 1961') the tenant committed default in payment of rent for three consecutive months and also directed to pay the rent from the date of the judgment to the date of handing over the suit premises.
2. The parties are referred to as described in the civil suit before the learned trial Court.
3. The brief facts as reflected from the plaint’s averments are that plaintiff has filed the civil suit for eviction, vacant possession and recovery of arrears of rent for the suit property part of House no. 39/25 to 32 situated at Mahatma Gandhi Road, Jawahar Nagar Ward, Raipur (hereinafter referred to as ‘the suit property’) under the provision of Section 12 (1) (a), (d) and (h) of the Act, 1961 contending that plaintiff is the owner of the suit property and the said property described in map attached to the plaint was given to the defendant for commercial use on rent of Rs. 2700/- per month. It has been contended that the defendant is not using the suit property for which it was rented and is not paying the rent for the last 5 years. It has also been contended that as per law he can only claim rent for 3 years therefore, he has filed the suit for claiming recovery of arrears of rent for 3 years amounting to Rs. 97,200/-. The plaintiff also claimed the damages at the rate of Rs. 100/- per day. It has been further contended that the plaintiff requires the suit premises for his bonafide need as the premises is in very dilapidated condition, as such, it is unsafe for use of humanbeing. It has also been contended that the plaintiff has already decided to reconstruct the suit premises and is having sufficient fund and plan for construction. The defendant had last paid the rent in the month of April, 2011, thereafter, the plaintiff demanded for handing over the vacant possession of the suit premises, but the defendant has not vacated the suit premises which has necessitated him to file the present suit.
4. The defendant filed his written statement denying the allegations made in the plaint mainly contending that the plaintiff is not the owner of the suit property. Owner of the suit property is Smt. Neelam Devi Gupta. It has been contended that he is regularly using the suit premises for commercial purpose and his business is continuously carried out in the said premises. It has been denied that the suit premises is in dilapidated condition which needs to be reconstructed. He has also denied that the plaintiff has demanded the vacant possession of the suit premises in April, 2011. It has been further contended that the suit is time barred, therefore, the suit is liable to be dismissed.
5. The learned trial Court on the pleadings of the parties framed as many as 8 issues. During pendency of the suit the defendant was not paying the rent, therefore, the plaintiff moved an application under Section 13(6) of the Act, 1961 on 10.01.2013 for strucking off right of defend against eviction as defendant is not paying the monthly rent regularly. The learned trial Court vide its order dated 04.10.2016 has directed the plaintiff to deposit the rent from the date of filing of the suit till September, 2016 and thereafter on 15th day of every successive month. The trial Court has also observed if the compliance is not made within 30 days then right of defence from eviction will be struck off . The defendant in compliance of the order deliberately submitted cheque of Rs. 97,200/- in the name of Laxminarayan Nathani who has already expired as such trial Court struck off the right of defence of the defendant in view of Section 13(6) of the Act, 1961 as well as non compliance of the order dated 04.10.2016 and 08.11.2016. Being aggrieved with this order the defendant has preferred writ petition (227) No.760 of 2016 and this Court vide order 16.03.2017 has allowed the petition directing the defendant to deposit the remaining amount of rent in arrears with the Court below before the next date of hearing. On doing so defendant / petitioner be permitted to raise his defence in the eviction suit. This Court has also directed the learned trial Court to decide the suit within 3 months as the suit was pending since 2011.
6. The plaintiff to substantiate his case has examined himself as PW-1 and PW-2 Surendra Singh who purchased his tenanted premise from the Grand Father of the plaintiff and exhibited documents namely EX P1and EX P2 – Map of reconstruction of tenanted premises. The plaintiff’s witness in his examination-in-chief by way of affidavit reiterated the stand which he has taken in the plaint and has stated that he has demanded possession of the premises for the last so many years and also demanded possession in April, 2011. The witness was extensively cross examined by the defendant wherein he has stated that defendant is his tenant for 30-35 years. He has also stated that the name of the defendant’s shop is reflected in the board but shop is always remained close. The other witness Surendra Singh Dutta has submitted his examination-in-chief supporting the case of the plaintiff. He has stated that the suit property is in dilapidated condition.
7. The defendant examined himself as DW-1 and exhibited documents namely Ex D1- Rent Receipt and Ex D2 to D8 – Electricity Bills.The witness in his chief examination by way of an affidavit as provided under Order 18 Rule 4 C.P.C. has reiterated the stand taken by him in the written statement. The witness has admitted in the cross examination that he has not given any rent after 10.10.2012. He has also admitted that he is mechanical engineer from America. He has also admitted that he has not produced any certificate regarding condition of the suit property. He has also admitted that he has not submitted any electricity bill which pertains to the period when the suit is pending before the trial Court.
8. The learned Trial Court on appreciation of oral and documentary evidence available on record passed the impugned judgment dated 24.06.2017 whereby the suit filed by the plaintiff was decreed under Section 12(1)(a) of the Act, 1961 and the defendant was directed to vacate the suit premises within two months. The learned trial Court after appreciating the evidence has recorded its finding the defendant for the first time has paid arrears of rent to the Rs. 97,200/- and he has to deposit the rent for the subsequent period regularly then only he can get protection from eviction but, he has not deposited the rent for continuously for 3 months, therefore, he cannot get protection from eviction. The learned trial Court has also recorded its finding that the plaintiff has proved that the defendant has not paid rent regularly which gives ground for eviction and accordingly it has passed decree directing the defendant to vacate the suit premises. This judgment and decree dated 24.06.2017 passed by learned Trial Court is being assailed in this first appeal.
9. The appellant vehemently criticized the judgment and decree passed by the learned trial Court and would submit that that learned trial Court has failed to appreciate that the defendant has paid entire rent, as such the default pointed out by the learned trial Court in payment of rent in accordance of Section 13(1) of the Act, 1961 is bad-in-law. Further, the learned trial Court also erred in holding that the defendant failed to deposit rent for three consecutive months after 10/10/2012. He would further submit that the Hon'ble High Court vide its order dated 06/03/2017 passed in W.P. (227) No. 760/2016 has granted time to the defendant for depositing the amount of rent in arrears with the Court below. The defendant has paid the entire rent during the pendency of the suit before the trial Court as per the direction issued by this Court . The time for depositing of rent had already been extended therefore, the defendant is entitled for protection under Section 12 (3) of the Act, 1961. The proviso to Section 12 (3) is applicable in the case where in the earlier suit, the tenant has obtained benefit of Section 12 (3) of the Act and subsequently commits the defaults in payment of rent of accommodation for 3 consecutive months. To substantiate his contention he would refer to the judgment of the Hon'ble Supreme Court in Shyamcharan Sharma vs Dharamdas {(1980) 2 SCC 151} and Judgment of the Hon'ble High Court of Madhya Pradesh in Manoharlal Gopilal Pandey vs Dr. Abdul Majid Khan {(1997) 1 MPLJ 232} and would pray that the present appeal may be allowed and Judgment and decree passed by the Ld. Trial Court be kindly set-a side.
10. Learned counsel for the respondent would submit that the judgment and decree passed by the learned trial Court is legal and justified and does not warrant interference by this Court. He would further submit the defendant/tenant did not pay rent even for 3 consecutive months. There is no protection for second default in the entire. Thus, the decree of eviction is justified. The defendant has accepted the tenancy by showing the receipt. The defendant has not disputed the fact that the suit property is in poor condition and needs thorough repair that cannot be done without getting the vacant possession. The photographs filed by the appellant also prove that the suit premises are getting dilapidated, therefore, he would submit that in absence of any material placed on record the judgment and decree passed by the trial Court does not warrant any interference by this Court and would pray for dismissal of the appeal. Learned counsel for the respondent to substantiate his contention would refer to judgment of the Hon'ble Supreme Court in the case of Atma Ram v. Shakuntala Rani, (2005) 7 SCC 211, Monoj Lal Seal v. Octavious Tea & Industries Ltd., (2015) 8 SCC 640, Sarla Goel v. Kishan Chand, (2009) 7 SCC 658 and judgment of the Hon’ble High Court of Madhya Pradesh in the case of Faqir Mohammad v. Gulabchand, 2010 SCC OnLine MP 294 : (2011) 2 MP LJ 445.
11. This Court vide order dated 29.08.2017 has stayed the judgment and decree passed by the learned Court below and interim order was continued and this Court vide its order dated 27.10.2017 has again directed the appellant to deposit monthly rent by 15th of every month during pendency of the appeal. On 05.09.2023, the defendant moved an application for issuance of appropriate direction, vacating the stay and payment of monthly rent as per the market value wherein it has been specifically contended that the same building premises other tenants are paying Rs. 90,000/- of shop area 900 Sq.ft. at Mahatma Gandhi, Main Road, Raipur and also filed rent agreement with other tenant .
12. The appellant thereafter moved an application for suitable order and hearing of the appeal by some other Bench vide I.A. No. 4 2023 filed on 1408/2023 mainly contending that the judge is from Raipur and has intimate knowledge of its people, social order, organization and officers, as such, he has fear that he will not get justice, therefore, the appeal may be transferred to another Bench.
13. This court before entering into merit of the case is considering this Interim Application filed by Appellant in Person. It is well settled position of law that it is within the domain of the judge hearing the matter to recuse himself or not. Question is whether the judge should recuse in order to prevent the embrassment caused to judge by a member of the bar or by litigant by seeking his recusal would destroy the very edifice of an independent judicial system. This issue has come up for consideration before the Hon’ble Supreme Court in case of Indore Development Authority vs Manohar Lal and Others {2020 (6) SCC 304} wherein the Hon’ble Supreme Court in paragraph 31 to 34 has held as under:-
31. Recusal has been prayed for on the ground of legal pre dis-position. Where recusal is sought on the ground, various ques-tions arise for consideration. Firstly, legal predisposition is the outcome of a judicial process of interpretation, and the entire ju-dicial system exists for refining the same. There is absolutely nothing wrong in holding a particular view in a previous judg-ment for or against a view canvassed by a litigant. No litigant can choose, who should be on the Bench. He cannot say that a Judge who might have decided a case on a particular issue, which may go against his interest subsequently or is part of a larger Bench should not hear his case. Furthermore, if a party or his Counsel can at length argue on the question of recusal of the Judge before him, he can also successfully question the correctness of a judgment rendered by him. A litigant has got the right to make arguments which suit his cause before a Judge/Judges having taken a contrary view earlier. Moreover, if it is open to one litigant to seek recusal and recusal is permit-ted, then the right has to be given to the opposite party to seek recusal of a Judge who may have decided a case against his interest. In case it is permitted to either side, that would end ju-dicial independence. Then parties will be choosing Benches to their liking. In that case, the Judges holding a view can be termed to be disqualified. In case the submission of recusal is accepted, the Judges having either side view, cannot hear the matter and have to recuse from hearing. In that case to find neutral Judges would be difficult to find and that would be sub-vert to the very concept of independent judicial system. If liti-gants are given the right to seek recusal of a judge on the ground that in a smaller Bench, a view has been taken by the Judge, the correctness of which has to be decided by the larger Bench, which includes the same Judge, then on a parity of rea-soning recusal might be sought on the ground of the judge hav-ing taken a view one way or the other even in a different case in which similar issues are involved if the judge has decided simi-lar issues earlier, in the same Court or in a different Court. This would open the flood gates of forum shopping. Recusal upon an imagined apprehension of legal predisposition would, in reality amount to acceding to the request that a Judge having a partic-ular view and leanings in favour of the view which suits a partic-ular litigant, should man the Bench. It would not only be allow-ing Bench hunting but would also be against the judicial disci-pline and will erode the confidence of the common man for which the judicial system survives.
32. The question that comes to the mind is whether one of us should recuse in order to prevent the embarrassment caused to a Judge by a member of the Bar, by seeking his recusal. Re-cusal would be the easiest way to solve it. On the other hand, a larger question arises. If request for recusal on the ground of le-gal predisposition in the form of a judgment is acceded to, that would destroy the very edifice of an independent judicial sys-tem.
33. The entire judicial system is based on sound constitutional principles. The roster making power is bestowed on the Chief Justice of India so that litigants are not able to choose the Judges before whom they have to argue a matter, and he is a constitutional functionary who has been enjoined with this task at the highest pedestal to exercise the power of roster making. He is the repository of faith. Once he has exercised his power, it is not for the Judges to choose. As per their oath, they have to discharge their duties without fear and favour and in a dispas-sionate manner without any ill will, bias towards litigants, or a cause. The question which arises is whether merely delivering a judgment of which correctness is to be examined, would dis-qualifying a Judge from being part of the larger Bench. The an-swer to the question has to be in the negative as there is a con-sistent practice of this Court which has evolved that the Judges who have rendered a decision earlier in smaller combination, have also formed part of the larger Bench, and there are umpteen occasions as mentioned above when Judges have overruled their own view. In LITEKY (supra), the United States Supreme Court has held that rather it may be advantageous to have them on a Bench hearing the matter as judgments are rendered after hearing the arguments of learned counsel for the parties. There is always a scope to further develop the law and to correct the errors, and this can better be done by having Judges on the Bench, who have earlier rendered judgments with respect to the subject matter to which of the parties the view taken suits is not relevant.
34. If requests for recusal are acceded to for the asking, liti-gants will be unscrupulously taking over the roster making pow-ers of the Chief Justice and that would tantamount to interfer-ence with the judicial system, by the mighty to have a particular Bench by employing several means and putting all kinds of pressures from all angles all around. It is the test of the ability of the judicial system to withstand such onslaught made from ev-ery nook and corner. Any recusal in the circumstances is ruled out, such prayer strengthens the stern determination not to suc-cumb to any such pressure and not to recuse on the ground on which recusal sought because for any reason, such a prayer is permitted, even once, it would tantamount to cowardice and give room to big and mighty to destroy the very judicial system. Moreover, recusal in such unjustified circumstances, would be-come the norm.
14.The record of the case would further demonstrate the appellant in person after filing of the application for hearing of the matter to another bench has participated in the proceeding filed reply to the application for issuance of appropriate direction, vacating the stay and payment of monthly rent as per the market value. Thereafter, the appeal was listed before this Court on 06.10.2023 on that day on the request of the parties the appeal was adjourned to 11.10.2023 on that date the appellant in person and counsel for the respondent argued their matter. This Court has directed the appellant and respondent to file written synopsis within two weeks. The appellant has submitted his written synopsis on 18.10.2023 which has also been taken into consideration by this Court while deciding the appeal. Considering the above stated legal position and considering the fact of subsequent participation of appellant in proceedings before this Court the application filed by the appellant deserves to be rejected and accordingly it is rejected.
32. I have heard the appellant in person and the learned counsel for the respondent appeal on merit and perused the record of the Court below with utmost satisfaction.
33. On pleadings of the parties, material placed on record the point to be determined by this Court is :-
'Whether the findings recorded by Ld. Court below is legal justified and does not suffer from perversity or illegality which warrant interference by this Court ?
34. Before adverting to the legal submission made by the appellant and respondent it would be expedient for this Court to extract relevant provisions of the C.G. Accommodation and Control Act, 1961 which are applicable for deciding the present controversy raised in the appeal.
12(3) No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub- section (1), if the tenant makes payment or deposit as required by Section 13 :
Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any accommodation, he again makes a default in the payment of rent of that accommodation for three consecutive months.”
13. When tenant can get benefit of protection against eviction. - [(1) On a suit or any other proceeding being instituted by a landlord on any of the grounds referred to in Section 12 or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, 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 subsequent thereto up to the end of the month previous to that in which the deposit or payment is made ; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be.
(2) If in any suit or proceeding referred to in sub-Section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall, on a plea made either by landlord or tenant in that behalf which shall be taken at the earliest opportunity during such suit or proceeding, fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provisions of sub-Section (1) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage].
(3) If, in any proceeding referred to in sub-Section (1), there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under sub-Section (1) or sub-Section (2), and in such a case, no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same.
(4) If the Court is satisfied that any dispute referred to in sub-Section (3) has been raised by a tenant for reasons which are false or frivolous, the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.
(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-Section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in te payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.
[(6) If a tenant fails to deposit or pay any amount as required by this Section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceeding, as the case may be.]
35. The record of the court below would clearly demonstrate that the defendant who was examined on 22.02.2017 in his cross-examination in para 6 has admitted that after 10/10/2012 he has not paid any rent. Therefore, as per proviso to section 12 (3) and Section 13 of the Act, 1961 the tenant cannot get protection if he commits default for continuously for three months as well as if tenant has already granted protection in view of orders passed during pendency of the suit . The defendant has not deposited the rent for three months, as such the learned trial Court has decided the issue No. 6 in favour of the plaintiff which is as per law laid down by The Hon’ble Supreme Court in case of Atma Ram (supra) wherein the Hon’ble Supreme Court has held in para 1 as under:-
“1…..the High Court recorded finding that the appellant tenant had defaulted in the threshold that this is case of second default and the appellant having availed of the benefits under Section 14(1) of Dehli Rent Control Act is not entitled to such benefit in case of second default.”
36. The learned trial Court has also recorded its finding in paragraph 13 of the judgment which cannot be perverse or contrary to the evidence on record and even the plaintiff in his evidence has categorically admitted that he has not paid rent after 10.10.2012. Again the Hon’ble Supreme Court in case of Mohan Lal (Supra) has considered the issue regarding protection of beneficial provisions for the tenants can be made available only after strict compliance of the statutory provisions thus, it was incumbent upon the defendant to comply with the provisions of Section 13 strictly which he miserably failed to do it. Again the High Court of Madhya Pradesh in case of Faqir Mohammad (supra) has held that if any precedent is to be fulfilled before the benefits can be claimed he must comply strictly with that condition. If he fails to do so he cannot take advantage of benefits conferred by such a provision.
37. The submission made by the appellant in person that the proviso to 12(3) is applicable only if the tenant has obtained benefit once in respect of any accommodation in other suit or other proceedings. This submission is contrary to proviso to 12(3) of the Act, 1961 which has already been extracted by this Court in foregoing paragraphs. From perusal of proviso it is quite vivid that the benefit to the tenant is grated once in respect of any accommodation. The protection is to the tenant for any accommodation it does not provide in a different suit or proceeding. The judgments referred to by the appellant in Shyamacharan (Supra) as well as Manoharlal (Supra) are not applicable to the present facts of the case wherein the Hon’ble Supreme Court has considered the provisions and has granted extension of time to the tenant for depositing the rent, whereas in the present case extension was granted to the tenant appellant by this Court while deciding the writ petition and order to struck off the defence was set aside. From evidence brought on record the defendant is unable to prove that the finding recorded by the learned trial Court that he has committed default in payment of rent is perverse or contrary to the records. Thus the learned trial Court has rightly passed the decree in favour of the plaintiff.
38. From the above stated factual and legal position as set out it is quite vivid that in the instant case also after making payment of rent on 10/10/2012, the tenant has committed various defaults of non payment of rent and made him liable for being evicted. Thus, the present appeal deserves to be dismissed and accordingly it is dismissed.
39. The learned trial Court has directed the appellant to vacate and handover the suit property within two months to the plaintiff, but the landlord is yet to secure possession. Be that as it may, this Court allows time until 10.03.2024 to the appellant to handover vacant possession of the premises. If any rent has been deposited by the appellant before the trial Court, the same shall be withdrawn by the respondent.
40. A decree be drawn up accordingly.
