1. This second appeal under Section 100 of CPC is at the instance of defendant/tenant challenging the concurrent judgments of two courts below. Trial court by judgment dated 23/12/2006 had decreed the suit for eviction being CS No. 108- A/04 on the ground of arrears of rent and the first appellate court by judgment dated 17/5/07 by dismissing the regular civil appeal No. 12/07 has affirmed the judgment of trial court.
2. At the outset it may be mentioned that against the interlocutory order dated 19/7/2016 in this appeal the SLP(C) No. 32022/16 was filed which was dismissed by order dated 11/11/2016 by requesting this court to dispose off the appeal taking into consideration the fact that landlord is an aged lady suffering from various ailments expeditiously within six months.
3. The undisputed facts are that respondent no.1/plaintiff had let-out the suit premises on monthly rent of Rs. 125/-. The plaintiff had earlier filed CS No. 3A/95 for eviction of respondent no. 2 which was dismissed on 12/12/2002 and thereafter notice demanding arrears of rent was served and the present suit was filed.
4. Respondent no.1/plaintiff has filed present suit for eviction and arrears of rent pleading that earlier suit was dismissed for non impleading the appellant Wahidulla and that appellant and respondent no. 2 are the joint tenants. It was further pleaded that they had committed default in payment of rent repeatedly and the rent from 1/11/2000 and prior to that i.e. since 1994 amounting to Rs. 4,000/- was in arrears, demanding which a registered notice was sent but the tenant had paid only Rs. 625/- for the period 3/11/2000 to 3/3/2003 alongwith her reply. Since the entire arrears were not cleared therefore, eviction was sought under Section 12(1)(a) of MP Accommodation Control Act. The eviction was also sought on the ground of bonafide need for business of major son under Section 12(1)(f) of the Act.
5. The defendants/tenants had denied the plaint averments and had also denied the arrears of rent.
6. Trial court had dismissed the suit rejecting the ground of bonafide need by assigning the reason that respondent no. 1 is widow and under Section 23(j) she is covered by special category of landlord, hence the Rent Controlling Authority had jurisdiction to grant eviction on ground of bonafide need. Trial court had found that tenants had committed default in payment of rent therefore, had decreed the suit under Section 12(1)(a) of the Act and the said decree has been maintained by the first appellate court.
7. The two courts below have recorded following categorical concurrent findings of fact:
a. The rent from 1/11/2000 and rent for 32 months for the
prior period upto 31/10/2000 amounting to Rs. 4 thousand was
in arrears.
b. The appellant himself had admitted that vide notice dated
1/11/2000 respondent no. 1 had demanded the arrears for 32
months. He had admitted that he had not deposited the arrears
within one month from service of summons. He had also
admitted that alleged repairing of shops 15-20 years back was
not done by him by taking any written permission from
respondent no.1 nor he had furnished any bill or account of
expenditure incurred in repairing or had taken any action
against respondent no. 1 for adjustment of said bill in the rent.
c. It is found proved on the basis of admission of appellant
himself that even after service of notice and after receipt of
summons in the suit within the prescribed period of one month
neither he had deposited the rent in the court nor he had paid it
to the landlord.
d. The appellant could not prove that arrears of rent was
required to be adjusted under any other head. He also could
not prove that arrears of rent was required to be adjusted
against the alleged amount spent in repairing of the premises.
e. The appellant had admitted that there were arrears of rent
of Rs. 4 thousand before filing of the suit.
f. That on 16/10/2003 i.e. on the date of filing of the suit the
rent for 3 years was in arrears and summons were served on
3/5/04 and arrears amounting to Rs. 4 thousand were
deposited by appellant on 10/8/2004 whereas the same was
required to be deposited within one month of service of
summons on or before 3/6/2004.
g. The appellant had not disclosed any reasonable cause for
delay in depositing the rent.
8. This court vide order dated 5/3/08 had admitted the
appeal on following substantial questions of law:
(a) Whether on the facts of the case the courts
below committed an error of law in passing eviction
decree against the appellant under Section 12(1)(a)
of the MP Accommodation Control Act, 1961?
(b) Whether on the proved facts of the case, the
courts below wrongly exercised their jurisdiction in
law u/s 13(1) of the said Act, in not condoning the
default in deposit of rent month by month as prayed
for repeatedly before the trial court as well as the
lower first appellate court?
9. Since both the questions are inter-related therefore, they
are being decided as under:-
10. Learned counsel for appellant submits that by the notice Ex.P-2 arrears of rent were claimed w.e.f. 1/11/2002 therefore, alongwith reply dated 3/3/2003, five month''s rent amounting to Rs. 625/- was paid. Hence new plea could not have been raised in the plaint. He further submits that Rs. 4,000/- was spent by appellant for repairing of the house therefore, the same ought to have been adjusted and after adjusting the said amount no rent was due.
11. As against this learned counsel for respondent has submitted that since ground for eviction under Section 12(1)(a) of the Act has been established therefore, the decree has rightly been passed.
12. I have heard the learned counsel for parties and perused the record.
13. Under Section 12(1)(a) of the Act, the decree of eviction can be granted if the tenant had neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner . As per Section 12(3) no order of eviction of a tenant can be made under Section 12(1)(a) if the tenant makes payment or deposits as required by Section 13 of the Act and as per Section 13(1), the tenant is required to deposit the rent within one month of service of writ of summons or within such further time as the court may on an application allow.
14. By the eviction notice Ex.P-2 respondent no. 1/landlord had demanded rent not only from 1/11/2002 but also for 32 months prior to it and also stated that in the earlier suit the plea of spending Rs. 4,000/- in repairing could not be proved, therefore, respondent /landlord was entitled to Rs. 4,000/- in addition to the rent from 1/11/2002, therefore, learned counsel for appellant is not right in his submission that notice Ex.P-2, was only confined to arrears of rent w.e.f. 1/11/2002. Both the courts below have already examined this aspect in detail. The plea of appellant relating to spending Rs. 4,000/- for repairs has remained unproved. The two courts below have rightly found that rent was due and recoverable from 1/11/2000. It has been found proved in evidence that rent w.e.f. 1/11/2002 was due and prior to this the rent for 32 months amounting to Rs. 4,000/- upto 31/10/2000 was due and it was demanded by serving a notice on the appellant. The courts below have also found that though the arrears of rent amounting to Rs. 4,000/- was due but the same was not deposited within one month after service of summons in the suit. The suit was filed on 16/10/03 and summons was served on 3/5/04 whereas the arrears of rent amounting to Rs. 4,000/- were deposited by appellant on 10/8/04 much beyond the period of 30 days prescribed under Section 13(1) of the Act that too without filing any application for extension of time at that stage. Though the appellant had belatedly filed the application for condonation of delay in depositing the rent but no justifiable reason was disclosed, hence the same was properly rejected.
15. The two courts below have also concurrently found that after filing of the suit also the appellant had committed repeated defaults in depositing the rent. In terms of second part of Section 13(1) of the Act, the tenant is required to deposit the rent pending the suit or appeal month by month by 15th of each succeeding month. The courts below have found that appellant had deposited the rent for April, May, June and July, 2004 on 10/8/04; rent for August and September, 2004 on 20/10/04; for October 2004 on 22/11/2004; for February 2005 on 16/3/05; for April and May 2005 on 15/6/05; for November 2005 on 24/12/05; for May 2006 on 19/6/06; for July 2006 on 17/8/06; for October and November 2006 on 15/12/2006; which reveals that repeated defaults were committed by appellant pending the suit in depositing the rent. During pendency of the appeal also the appellant had committed several defaults in depositing the rent before due date. There was no proper explanation for the same, therefore, the application for extension of time was rightly rejected.
16. The Supreme court in the matter of Sayeda Akhtar Vs. Abdul Ahad reported in (2003) 7 SCC 52 in a case where suit was decreed by the trial court on the ground of arrears of rent and the decree was affirmed by the first appellate court but High court had allowed the second appeal on the ground that default committed by the tenant deserved condonation and the courts below ought to have given further time to deposit the arrears of rent, has held that when two defaults i.e. rent for month of November 1985 and rent for months of May & June 1988 were committed and application for condonation was filed on 5/2/1990 such an application could not have been entertained for condonation of default in deposit of rent and the order of High court interfering with finding of fact arrived at by the first appellate court has been held to be unsustainable. While holding so, the Supreme court has held as under:
"6. A bare perusal of the aforementioned provision would
clearly go to show that although the court has the
jurisdiction to extend the time for depositing the rent
both for the period during which the tenant had
defaulted as well as the period subsequent thereto but
therefore an application is to be made. The provision
requiring an application to be made is indisputably
necessary for the purpose of showing sufficient cause
as to why such deposit could not be made within the
time granted by the Court. The court does not extend
time or condone the delay on mere sympathy. It will
exercise its discretion judicially and on a finding of
existence of sufficient cause.
7. In Nasiruddin and Ors. v. Sita Ram Agarwal [(2003) 2
SCC 577], this Court noticed the said provision as well
as the decision in Shyamacharan Sharma v.
Dharamdas and observed that the court has been
conferred power to extend the time for deposit of rent
but on an application made to it.
8. The finding of the court of appeal in this behalf is:
"The appellant has not moved application before the
court below for condoning the delay in depositing of
rent, by this Court the relevant application had already
been dismissed. Therefore, the appellant is not entitled
to the protection of Section 12(i)(a), 12(iii) and 13(v) as
has been laid down in 1989 M.R.C.J. 155."
9. The High Court in its impugned judgment did not point
out as to how the court of appeal committed an error of
records in arriving at the said finding. Admittedly, there
had been two defaults i.e. rent for the month of
November 1985 and rents for the months of May and
June 1988. The High Court purported to have recorded
that the appellant had applied for condonation of delay
in payment of rent on 5.2.1990 in relation to default to
deposit rent for the month of November 1985 and for
the months of May and June 1988. An application for
condonation of delay could not have been entertained
on 5.2.1991 for commission of default in depositing the
rent. We, therefore, are of the opinion that the High
Court was not correct in interfering with the findings of
fact arrived at by the first appellate court.
17. Counsel for appellant has placed reliance upon judgment
of the Supreme court in the matter of Shyamcharan Sharma
Vs. Dharamdas reported in AIR 1980 SC 587 but that is a
judgment mainly on the issue of striking off defence for non
payment of rent under Section 13(6) of the Act. He has also
placed reliance upon Single Bench judgment of this court in the
matter of Gopalds and others Vs. Rajesh and another
reported in 2005(4) MPLJ 352 but in that case the defendant
had tendered the entire arrears of rent legally recoverable from
him within two months from the date of service of notice,
therefore, it was found that plaintiff/landlord had no cause of
action to file the suit under Section 12(1)(a) of the Act. Similarly
the Single Bench judgment in the matter of Manisha Lalwani
Vs. Dr.D.V. Paul reported in 2007(2) MPLJ 52 relied upon by
counsel for appellant is also of no help to the appellant since in
that case the tenant within 11 days of the receipt of notice of
demand for the arrears of rent had sent the amount by bank
draft. These judgments are distinguishable on fact and the
benefit of these judgments cannot be granted to the appellant
since in the present case the courts below have concurrently
found that appellant had not only committed default in
depositing the rent after service of notice of demand but had
also committed default in depositing the arrears of rent within
one month from service of summons in terms of first part of
Section 13(1) of the Act and had repeatedly committed default
in depositing the rent not only pending the suit but also pending
the appeal in terms of second part of Section 13(1) of the Act.
18. In view of the concurrent finding of fact recorded by the two courts below in respect of above defaults in payment of rent and the fact that nothing has been pointed out to show that these findings are incorrect or erroneous, I am of the opinion that the questions framed by this court are to be answered in favour of respondent and against the appellant and the same are accordingly answered.
19. The appellant has also filed IA No. 1007/17 for condonation of delay in depositing the rent but after rejection of similar applications by the trial court and by the first appellate court and upholding orders of rejection by this court for the same purpose another application is not maintainable. That apart it is noticed that no proper explanation in the said application has been furnished. Hence IA No. 1007/17 is rejected.
The appeal is accordingly dismissed.
C.C. as per rules.
