Madhya Pradesh High Court
Krishna Devi Santar vs Atul Lalwani on 21 January, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
M.P.No.6468/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 21st OF JANUARY, 2025
MISCELLANEOUS PETITION NO.6468/2024
Krishna Devi Santar
VS.
Atul Lalwani
------------------------------------------------------------------------------------------
Appearance:
Petitioner by Shri Ajay Gupta, Senior Advocate with Shri Suyash
Shrivastava, Advocate.
Respondent by Shri Shobhitaditya, Advocate on caveat.
................................................................................................................................................
Reserved on : 26.11.2024
Pronounced on : 21.01.2025
ORDER
With the consent of learned counsel for the parties, the
matter was finally heard on 26.11.2024 and today the order is being
pronounced.
2. This petition is filed under Article 227 of the Constitution of
India challenging the impugned order dated 11.11.2024 (Annexure-P/11)
passed in a pending civil suit by the Civil Judge, Junior Division,
Bhopal. By this order, the trial court rejected an application submitted
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M.P.No.6468/2024
by the petitioner-defendant in a pending civil suit filed for seeking a
decree of eviction on the ground of Section 12(1)(a) and 12(1)(f) of the
M.P. Accommodation Control Act, 1961 (for brevity “Act, 1961”). The
trial court in the pending civil suit had passed an order under Section
13(6) of Act, 1961 and closed the right of the defendant-petitioner as he
did not comply with the order of the trial court by depositing the rent as
was provisionally fixed by the court. Such order was assailed by the
petitioner before the High Court but the High Court affirmed the order
of the court below by dismissing the petition i.e. M.P.No.2481/2024.
Thereafter, the defendant-petitioner filed the application on 26.02.2024
for leading evidence on the issue of arrears of rent, but that application
has been rejected by the trial court by the impugned order, which has
given rise to filing of present petition.
3. Learned senior counsel for the petitioner sanguinely
submitted that the order passed by the court below declining opportunity
to the defendant-petitioner to lead evidence in respect of the issue
related to decree of arrears of rent is precarious and does not stand the
test of settled legal position. He accentuated that striking out of defence
was confined to the decree of eviction and not otherwise. He further
submitted that earlier order passed by the court below exercising power
provided under Section 13(6) of Act, 1961 did not actually debar the
defendant-tenant to contest the issue as to arrears of rent, but the court
without heeding to that aspect, erroneously did not allow the defendant
to lead evidence or to defend herself, in respect of the decree of arrears
of rent. To reinforce his assertion, he placed reliance on the decision of a
Division Bench of this court in the case of Kewal Kumar v. Satish
Chandra and another passed in M.P.No.4866/1989 saying that the
Division Bench has clarified this situation and relying upon the decision
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M.P.No.6468/2024
of the Supreme Court has very categorically held that the striking of
defence for not depositing the rent by the tenant would not debar the
tenant to contest the issue as to arrears of rent.
4. In contrast, Shri Shobhitaditya, learned counsel appearing
for the respondent submitted that the case is at the verge of final
decision and the petitioner failed to deposit the rent and therefore
eviction on the ground of Section 12(1)(a) and 12(1)(f) can be claimed
and the petitioner-defendant has no right to lead any evidence. He relied
upon a decision of this court in the case of Manorama Devi Wd/o
Parmanand and Others v. Suresh S/o. Kailash Narain and Others
rendered in S.A.No.285/1998 on 28.11.1998 and reported in 1999(1)
MPLJ 436.
5. I have heard the submissions of learned counsel for the rival
parties and also perused the documents available on record.
6. Indeed, it is a case of seeking decree of eviction on the
ground of Section 12(1)(a) and 12(1)(f) of Act, 1961 filed by the
landlord-plaintiff (respondent) against the tenant-defendant (petitioner).
In addition, a decree of arrears of rent has also been claimed amounting
to Rs.2,73,544/-. The trial court vide order dated 12.02.2024 exercising
the power provided under Section 13(6) of Act, 1961 had struck of the
defence of the petitioner-tenant. Such order was assailed by the
petitioner before the High Court but the High Court affirmed the order
of the court below by dismissing the petition i.e. M.P.No.2481/2024.
Thereafter, the defendant-petitioner filed the application on 26.02.2024
for leading evidence on the issue of arrears of rent, but that application
has been rejected by the trial court by the impugned order, which
resulted into filing of present petition. At this juncture, it is imperative to
go-through the observations made by the Division Bench in Kewal
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M.P.No.6468/2024
Kumar (supra) wherein dealing with akin issue, it has been observed as
under:-
Recently, the Supreme Court, in Modula India v. Kamkshya Singh
Deo, AIR 1989 SC 162, had occasion to review the decisions of the
various High Courts and of the Supreme Court, as to the consequences
of defence against eviction being struck out in terms of the rent
legislations as also under the provisions of the Code of Civil
Procedure. It held that the provision of striking out the defence is one
in terrorem. It was observed that under the Rent Acts such provisions
are not mandatory and it is not obligatory on the Court, merely
because there is a default, to strike out the defence. It is a matter for
exercise of great judicial restraint. The Court held that it does not
necessarily follow that merely because the defence against eviction
stands struck out, the defendant is completely helpless and that his
conduct of the case should be so crippled as to render a decree against
him inevitable. Further observations are that the provisions of this type
should be construed strictly and that the disabilities of a person in
default should be limited to the minimum extent consistent with the
requirements of justice. In ultimate analysis, the Court held as
follows : –
“We, therefore, think that the defendant should be allowed his right
of cross-examination and arguments. But we are equally clear that this
right should be subject to certain important safeguards. The first of
these is that the defendant cannot be allowed to lead his evidence.
None of the observations or decisions cited have gone to the extent of
suggesting that in spite of the fact that the defence has been struck off,
the defendant can adduce evidence of his own or try to substantiate his
own case.”
From the above decision it can now safely be held that the
defendant, whose defence against eviction is struck out in a suit for
eviction on grounds under the Rent Act, can cross-examine the
plaintiff and his witnesses and address the Court on the basis of the
plaintiff’s case only with a view to point out the falsity of the
weaknesses of the plaintiffs case. Another thing which is clear is that
the defendant-tenant can still contest the issues which are not based
upon any of the grounds of eviction mentioned in the Rent Act and in
our case, under the various clauses of Section 12(1) of the M. P.
Accommodation Control Act. We have noted above that one of the
grounds mentioned in Section 12(l,)(a) of the Act is non-payment of
arrears of rent despite notice of demand in that behalf. We have also
noted that the Act, by enacting Section 13 and Section 12(3), has
permitted further latitude to the tenant to avoid a decree of eviction on
such a ground. The scheme of Section 13 has also been noted. It
permits the tenant to contest arrears as also the rate of rent and if that
is done, the operation of Section 13(1) is arrested and the Court is
bound to fix provisional rent and also allow time to the defendant to
deposit the same. In Shyamcharan Sharma v. Dharamdas, AIR 1980
SC 587 a case under the M. P. Accommodation Control Act, the
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M.P.No.6468/2024
Supreme Court held that the Court has further discretion to condone
the default and extend time for payment or deposit. It is also
noteworthy that if the Court fixes provisional rent to be paid by the
tenant during the pendency of the eviction suit based on the grounds
Under Section 12(1) of the Act, the issue as to the amount of arrears of
rent due or as to the rate is not tried at that stage in the sense in which
an issue is tried by giving the parties opportunities to lead evidence.
What is contemplated at that stage is just a summary enquiry as the
Court may deem fit in order to fix a ‘reasonable provisional rent’ in
relation to the accommodation, to be paid or deposited in accordance
with the provisions of Sub-section (1) of Section 13. Sub-section (2) of
Section 13 further provides that save for reasons to be recorded in
writing, no Court shall entertain any plea on this count at any
subsequent stage. This expression would only mean a prohibition
against raising a plea against fixation of reasonable provisional rent. In
our judgment, the provisions of Section 13 and particularly that
contained in Sub-section (2) thereof do not contemplate a trial on any
issue or an elaborate enquiry as to the arrears of rent or as to the rate of
rent, if the tenant were to join issues with the plaintiff in that regard.
The provision is only meant for the benefit of the tenant to avoid a
decree for his eviction based on the ground Under Section 12(l)(a) of
the Act, which is as follows : –
“12(1) Notwithstanding anything to the contrary contained in any
other law or contract, no suit shall be filed in any Civil Court, against a
tenant for his eviction from any accommodation except on one or more
of the following grounds only, namely : –
(a) that the tenant has 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.”
In Premdas’s case (supra), the Division Bench of this Court has in
quite unequivocal terms stated that the issues other than those relating
to eviction based on the grounds. Under Section 12(1) of the Act can
all be tried and even if the defence against eviction is struck out, the
tenant shall have a right to contest all other issues. Therefore, in a suit,
where apart from the relief of ejectment, although based on the ground
Under Section 12(l)(a) of the Act, a decree for arrears of rent is also
claimed and if the tenant denies the arrears of rent or claims
adjustment, an issue shall have to be struck down relating to arrears of
rent. The tenant can well demonstrate that the arrears, as claimed, are
not due. When the issues in the suit are tried in those proceedings in
the suit, the defendant-tenant shall get a right to properly contest those
issues. If this is not permitted, the tenant shall have to suffer a decree
for ejectment, because his defence against’ eviction has been struck out
and, at the same time, shall also have to suffer a decree for certain
amount allegedly due as arrears of rent, but without any opportunity to
him to contest that fact in issue. This, is our opinion, shall condemn
the defendant without due opportunity. We are, therefore, of the
opinion that even where the defence against eviction in a suit, also
based on the ground Under Section 12(1)(a) of the Act, is struck out in
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M.P.No.6468/2024
terms of Section 13(6), for non-payment of reasonable provisional
rent, as fixed Under Section 13(2) of the Act, the tenant shall still be
entitled to content the issue as regards the quantum of rent, which, in
our opinion, is different from the ground upon which eviction may be
sought Under Section 12(1) of the Act. Even otherwise, we find that
the defendant shall be entitled, in terms of the decision of the Supreme
Court in Modula India‘s case (supra), to cross-examine the plaintiff to
show that his Claim of arrears of rent is false or untrue and also to
address the Court in that regard.
We may refer to a decision of a Single Bench of this Court in
Gurmukhdas v. Shaliram Grover, C. Re. No. 541 of 1975 decided on
20-2-1975. We have gone through the full text of that decision. After
quoting from Premdas’s case (supra), the learned Single Judge rightly
concluded that the ‘defence against eviction’, as used in Section 13(6)
of the Act, is restricted only to the defence available to the tenant
Under Section 12 of the Act. The learned Judge, however, went on to
observe, “it appears to me clear that the defendant could not do
indirectly what he was precluded to do directly. The question of arrears
of rent is a ground on which the tenant could be evicted, which occurs
in Section 12 of the Act. Now; if the defendant was permitted to lead
evidence on the question of quantum of arrears of rent, he was
certainly permitted to agitate the question of arrears itself, which if his
defence was struck out, was precluded from raising. The defendant
was, therefore, precluded from leading any evidence as regards arrears
of rent, even though it was for the limited purpose of establishing
quantum.” With due respect to the learned Single Judge, who decided
that case, we find ourselves unable to agree with the conclusion so
reached. In reaching that conclusion, the learned Single Judge missed
the true import of the provisions of Section 13(2) and Section 13(6) of
the Act. A tenant is entitled to contest the arrears of rent which may be
claimed in a suit for ejectment based on grounds Under Section 12(1),
including the ground under clause (a) thereof. If he does not contest
that issue, he shall suffer two decrees, one for ejectment and the other
for arrears of rent. This shall be, of course, when the plaintiff proves
his case. If, however, the defence against eviction is struck out, the
defendant is precluded from leading evidence on those issues. Even so,
he is entitled to cross-examine the plaintiff to demolish his case and to
address arguments. That is the effect of striking out the defence. He
can contest any other issue in the suit and can get the suit dismissed
for any other relief, which may include the claim as to the arrears of
rent. Although, at first sight, it appears incongruous that a tenant may
suffer a decree for non-payment of arrears of rent because the defence
against eviction is struck out, still he may get the relief against the
actual amount of arrears of rent claimed. But a little deeper probe into
the matter would demonstrate that the tenant suffers a decree not
because the issue as to quantum of rent is tried, but because of the
special provision of the Act, namely, Section 13 and its various sub-
sections, including Sub-section (6), which vests a discretion in the
Court to strike out the defence against eviction. We, therefore, hold
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M.P.No.6468/2024
that the case in Gurmukhdas’s case (supra) was not correctly decided
and is hereby over-ruled.
(emphasis supplied)
7. Furthermore, in the case of Sabiha Masood v. Tahabbur
Ali Khan, 1998(2) MPLJ 610, this court has also considered the aspect
that striking out of defence in the case of eviction is confined to the plea
of eviction and tenant would not be permitted to disapprove the
availability of grounds under Section 12(1)(f) of Act, 1961, but for other
issues, he can be permitted to lead evidence. It has been observed as
under:-
3. In the suit for eviction based on a ground Under Section 12(1), the
defendant has two types of defences (1) which are known as common
law defence and (2) which are available to the tenant under the
Accommodation Control Act itself. The Common Law defence are like
the liability to pay the rent, the arrears of rent, the relationship of
landlord and tenant and the ownership of the property. But under the
Accommodation Control Act, the defences which are available to the
tenant are to disprove the case of the landlord and show to the Court by
leading cogent evidence that availability of a ground Under Section
12(1) is not made out. When a tenant challenges the ownership or the
relationship of landlord and tenant, this may probably be a dispute
Under Section 13(3) of the Act. A Court before striking out the defence
is required to decide the said dispute. If despite direction the tenant does
not deposit the rent then his defence available to him under the
Accommodation Control Act can certainly be struck out but this striking
out the defence available to a tenant under the Accommodation Control
Act would not have the effect of striking out the defences of the tenant
which are available to him under the Common/General Law. If a tenant
wants to take advantage of the defences which are available to him
under the Accommodation Control Act, then he should deposit the rent
but if he does not deposit, then such defence would not be available to
him. If such a tenant proves his common law defence by leading cogent
evidence that there does not exist relationship of landlord and tenant or
the plaintiff is not the owner or even by cross-examining the plaintiff’s
defences that a ground is not available to the landlord to evict the
defendant, then this right is not hampered by striking out the defence.
The effect is only that the defendant would not be permitted to lead
evidence to disprove the availability of the ground Under Section 12(1)
of M. P. Accommodation Control Act.
5. The Court below had given the time to the defendant to deposit the
rent by 12-9-1997. The period had already expired. Considering the
totality of the circumstances, it is however directed that if the tenant
deposits the rent as claimed by the landlord or which has accrued in
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M.P.No.6468/2024
favour of the landlord latest by 3-11-1997, the deposit shall be treated to
be a proper one. Not only this, the tenant is required to comply with the
provisions of Section 13(1) to have his defences available to him under
the Rent Control Act. If the tenant does not deposit the rent then his
defences against eviction available to him under M. P. Accommodation
Control Act shall stand struck out.
(emphasis supplied)
8. In the case at hand, a decree of eviction has been claimed by
the respondent-plaintiff under Section 12(1)(a) and 12(1)(f) of Act, 1961
and also claimed a decree of arrears of rent. As regards decree of
eviction, the plaintiff cannot be permitted to lead evidence in pursuance
to the order of striking out of his defence passed by the court exercising
power under Section 13(6) of Act, 1961 and that order was also affirmed
by this Court. However, so far as issue of arrears of rent and decree
thereof is concerned, the defendant-tenant can disapprove this claim by
leading cogent evidence because the legal position as has been involved
in this case has already been considered by the court and also observed
that striking out of defence is confined to the decree of eviction claimed
under Section 12(1) of Act, 1961 but decree of arrears of rent is not
included therein and as such the order of striking out of defence does not
debar the tenant to disapprove the stand of the plaintiff. Ergo, if he is
not permitted to lead evidence to that effect, would not only tantamount
to illegality in the eyes of law, but would also amount to depriving the
tenant from defending other issues available to him/her under the
common law. Adverting to the case of Manoram Devi (supra), as relied
upon by learned counsel for the respondent, I find that this decision does
not answer the issue in hand. Albeit, in that case, it has been observed
that once defence is struck of, the defendant cannot be permitted to lead
evidence on the plea/ground which is not part of written-statement.
Thus, such a law has no applicability in the fact-situation at hand.
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M.P.No.6468/2024
9. In view of the above discourse, based on underlying factual
and legal assimilation, I am of the unwavering opinion that the
impugned order passed by the trial court precluding the defendant-
petitioner to lead evidence to disapprove the decree of arrears of rent, is
vulnerable. The defendant has denied the arrears of rent in her written-
statement and has taken a stand that certain amount has already been
deposited by her with the plaintiff, which is required to be adjusted and
such a stand has to be proved by her before the court. Accordingly, the
impugned order dated 11.11.2024 is set aside. The trial Court is directed
to permit the defendant confining her to lead evidence with respect to
the issue of arrears of rent only.
10. Quite apart, looking to the present stage in praesenti of the
case, the trial Court is directed to decide the suit within a period of three
months from the date of receipt of copy of this order. Needless to
emphasise that if on the given date, the defendant-petitioner fails to
produce evidence, the trial court may consider closing her right to lead
evidence.
11. The petition is allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
sudesh
SUDESH KUMAR
SHUKLA
2025.01.22
10:11:12 +05’30’
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