Rohit Arya, J.@mdashThis petition by petitioner/tenant is directed against the order dated 11/9/2012 passed by Fourth Civil Judge, Class-I, Gwalior in Civil Suit No. 39-A/2011. By the aforesaid order, petitioner''s application u/s 13(2) of the M.P. Accommodation Control Act, 1961 (in short the Act of 1961) has been rejected and application filed by respondent/landlord u/s 13(6) of the Act of 1961 has been allowed to the effect that if the petitioner does not deposit the entire arrears of rent due from 1/12/2007 his defence shall be struck off.
2. The facts necessary for disposal of this petition are to the effect that suit for eviction, arrears of rent and for possession has been filed by respondent/landlord against the petitioner/tenant seeking eviction of a shop admeasuring 10 X 10 ft. of respondent''s husband''s ownership situated at Sabd Pratap Ashram, Gwalior on the premise that by virtue of rent agreement dated 1/3/2006 tenancy in respect of the suit shop was created and petitioner/defendant was put in possession thereof as a tenant on monthly rent of Rs. 1,000/- excluding the electric charges. The rent agreement was signed by respondent/landlord as well as petitioner/tenant on stamp paper.
3. The petitioner/tenant filed written statement. Though it is denied that the rent of the suit premise was Rs. 1,000/- per month, but nowhere it is stated that the rent of the suit premises was Rs. 500/- per month. There is also no averment of denial of execution of rent agreement or alleging the same to be forged. Though under clause ''special objections'' it is submitted that as per the plaint averments, arrears of rent to the tune of Rs. 49,000/- has been demanded at the rate of Rs. 12,000/- per annum for the period 1/12/2007 to 31/1/2011, but as a matter of fact the plaintiff/respondent used to take various items from petitioner''s grossery shop as and when required and the total value of such grossery items and the cash received by him is Rs. 1,10,640/-. As such, excess amount has been paid to the plaintiff/respondent by him.
4. During pendency of the eviction proceedings respondent/plaintiff filed an application u/s 13(6) of the Act of 1961 contending that the defendant is in arrears of rent w.e.f. 1/12/2007 at the rate of Rs. 1,000/- per month. Despite having entered appearance in the pending suit defendant/petitioner has not deposited arrears of rent as required u/s 13(1) of the Act of 1961, therefore, defence of defendant/petitioner be struck off.
5. Reply to the application was filed by defendant/petitioner. In the reply, for the first time it is stated that the rent of the suit premises was not Rs. 1,000/- per month, instead it was Rs. 500/- per month. It is denied that defendant/petitioner is in arrears of rent w.e.f. 1/12/2007. It is submitted that in fact the plaintiff/respondent has already taken various items from petitioner''s grossery shop of the value of Rs. 1,10,640/- and, therefore, after adjustment of the same, the outstanding be credited to the petitioner/defendant. It is accordingly prayed that since there is no arrears of rent, the application u/s 13(6) of the Act of 1961 deserves to be rejected. Thereafter, the petitioner/defendant filed an application u/s 13(2) of the Act of 1961 for fixing the standard rent of the suit premises on the same premise i.e. the rent of the suit premises is not Rs. 1,000/- per month, as alleged, but only Rs. 500/- per month and after adjustment of the amount of Rs. 1,10,640/- due against the plaintiff/respondent, the outstanding be credited to the petitioner/defendant. It was accordingly prayed that the petitioner/defendant be permitted to deposit the rent in the Court. Reply to the application was filed and averments made therein were denied by the respondent/plaintiff.
6. The trial court while addressing upon the application filed by the petitioner/defendant u/s 13(2) of the Act of 1961 and another by respondent/plaintiff u/s 13(6) of the Act of 1961 decided the same by common impugned order dated 11/9/2012. The trial court has found that the tenancy is not disputed between the parties. There is no denial of factum of execution of rent agreement between the parties. The rent agreement bearing signature of plaintiff and defendant bears stipulation that the rent of the said premises is Rs. 1,000/- per month. The assertion of the defendant/petitioner that the rent of the suit premises is Rs. 500/- is not supported by any evidence much less documentary evidence on record, so much so that there is no such averment in written statement and for the first time the said figure has been mentioned in reply to the application u/s 13(6) of the Act of 1961. Further, the claim of the petitioner/defendant that an amount of Rs. 1,10,640/- is outstanding against the respondent/plaintiff; value of various items allegedly procured by the plaintiff from the shop of defendant, is not supported by any documentary evidence. As such, mere assertion as regards rent of Rs. 500/- and outstanding amount of Rs. 1,10,640/- is found to be unacceptable and accordingly, on such critical evaluation of the material placed before the court, the trial court reached the conclusion that petitioner/defendant is in the arrears of rent since 1/12/2007 at the rate of Rs. 1,000/- per month and accordingly, disposed of the application of the petitioner/defendant u/s 13(2) of the Act of 1961 and that of respondent/plaintiff u/s 13(6) of the Act of 1961. In the conclusion, it is directed that in the event defendant/petitioner fails to deposit the arrears of rent, his defence shall be struck off.
7. Learned counsel for the petitioner/defendant has contended that the trial court having not held any enquiry for fixing the standard rent, as contemplated u/s 13(2) of the Act of 1961, in fact has committed grave illegality. The trial court ought to have held an enquiry for fixing the standard rent. Hence, the impugned order is unsustainable.
8. Before adverting to the aforesaid submission, it is considered apposite to reproduce sub-section (2) of Section 13 of the Act of 1961, which reads as under:-
"13. When tenant can get benefit of protection against eviction.- (1) XXXXXXX
(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 subsection (1) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage."
9. A bare perusal whereof suggests that unless there is a dispute as to the amount of rent payable by the tenant in the pleadings of the parties, the court shall not invoke the jurisdiction to fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub-section (1) to Section 13 of the Act of 1961. In the instant case, there is no averment that the rent of the suit premises is Rs. 500/- per month, instead, as pleaded by the plaintiff in the plaint and as indicated in the rent agreement, it is Rs. 1,000/- per month. There is no basis for the alleged claim of outstanding amount of Rs. 1,10,640/- to be adjusted against the outstanding rent. These are the jurisdictional facts existence whereof are conditions precedent for invoking jurisdiction of the court u/s 13(2) of the Act of 1961 for fixing the reasonable rent of the accommodation in question. This is so for the reason unless there is a dispute as to the amount of rent payable by the tenant with due regard to the pleadings of the parties, the court shall not venture into fixing the reasonable provisional rent. In absence of pleadings in the written statement that rent of the suit premises is Rs. 500/-, mere assertion in reply to the application u/s 13(6) and in the application u/s 13(2) of the Act of 1961 that rent of the suit premises is Rs. 500/- that too without any basis or supporting evidence, cannot fulfill the requirement of the Section 13(2) of the Act of 1961 for invoking jurisdiction of the court to fix the reasonable rent of the suit premises. The Full Bench of this Court in
10. In the opinion of this Court, no illegality or error has been committed by the trial court. The trial court was justified having ordered for deposit of arrears of rent w.e.f. 1/12/2007 to 31/1/2011, failing which consequence ''striking off defence'' to follow. Accordingly, this writ petition sans merits is dismissed.
