Madhya Pradesh High Court
Radheshyam vs Jasweer Singh S/O Mohan Singh ... on 27 October, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
IN THE HIGH COURT OF MADHYA PRADESH
AT Indore
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 27th OF OCTOBER, 2025
MISC. PETITION No. 2738 of 2025
RADHESHYAM AND OTHERS
Versus
JASWEER SINGH S/O MOHAN SINGH (DECEASED) THROUGH LRS
SURENDRA KAUR AND OTHERS
Appearance:
Shri Maqbool Ahmed Mansoori - Advocate for the petitioners.
None present for the respondents.
ORDER
This miscellaneous petition under Article 227 of the Constitution of
India is filed feeling aggrieved by the Order dated 26.04.2025 passed in RCS-
A-38 of 2016 by The Additional Judge to the Court of Civil Judge Junior
Division, Neemuch, whereby the Court of first instance has rejected the
application submitted by the plaintiff under Section 13(6) of the MP
Accommodation Control Act.
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
2. The plaintiff (petitioner herein) had filed a civil suit seeking
decree of eviction and recovery of the arrears of rent against the defendant
(respondents), with regard to two shops situated at Bagicha No. 21, Neemuch.
During the course of trial, the plaintiff submitted an application under Section
13(6) of the M.P. Accommodation Control Act stating therein that despite
fixing the rate of provisional monthly rent, the defendant has neither paid the
arrears of rent nor he is paying the monthly rent regularly. The plaintiff
requested that the defence of the defendant in the eviction suit be struck off.
The Court of first instance, initially, allowed the application vide Order dated
24.04.2024 and the defence of defendant was struck off.
3. The defendant filed miscellaneous petition under Article 227 of
the Constitution of India before the High Court assailing the Order dated
24.04.2024. The High Court of Madhya Pradesh quashed the impugned Order
dated 24.04.2024 vide Order dated 09.01.2025 passed in MP No. 2765 of 2024
and remitted the matter directing the trial Court to decide the application under
Section 13(6) of the M.P. Accommodation Control Act, afresh, in accordance
with law.
4. In compliance with Order dated 09.01.2025 passed by this Court
in MP No. 2765 of 2024, The trial Court reconsidered the application and
rejected the same vide impugned Order dated 26.04.2025.
5. The impugned order dated 26.04.2025 is assailed in present
petition on following grounds-
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
1. The impugned order is incorrect, illegal, and against the facts and
documents available on record.
2. The arrear of rent deposited by the defendant is, manifestly, not in
conformity with the mandate of Section 13(1) of the M.P.
Accommodation Control Act and despite recording a specific finding in
this regard in favour of the plaintiff, the trial Court rejected the
application. The impugned order is bad in law and non-sustainable.
3. The trial Court committed an error in holding that the dispute regarding
rent receipt of ₹ 17,000/- shall be decided on merit at the time of final
adjudication of the suit.
4. The right to lead evidence of defendant was closed by the trial Court in
exercise of power conferred under Order XVII Rule 3 of CPC vide Order
dated 05.11.2024. The trial Court committed error in fixing the case for
defendant's evidence without any prayer for recalling the order dated
05.11.2024.
6. On these grounds, it is prayed that the impugned order dated
26.04.2025 be quashed and the trial Court be directed to fix the case for final
argument.
7. The learned counsel for the petitioner referring to Section 13(1) of
the M.P. Accommodation Control Act, 1961 contended that the tenant
(defendant) was under obligation to pay the amount calculated at the rate of
rent and was under further obligation to continue to pay the monthly rent,
month by month, by the 15th of each succeeding month. The trial Court had no
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
jurisdiction to extend the time for depositing the rent or to condone the delay in
payment of rent without application for condonation by the defaulter. Learned
counsel referred to the orders in cases of Sayeda Akhtar v. Abdul Ahad
reported in 2003(7) SCC 52; Rakesh Bhargav v. Mahesh Prasad 2018 Part I
MPJR 49 and the order dated 29.01.2024 passed in Second Appeal no. 41 of
2003 to buttress his contentions.
8. Heard learned counsel for the petitioner, perused the record.
9. The impugned order reveals that the trial Court verified the
amounts deposited as arrears of rent and concluded that the defendant had
already paid the amount in excess of the amount calculated at rate of monthly
rent fixed by the Court. The trial court noted that while the defendant often
delayed payment of rent, he also paid the rent in advance several times. The
trial court referred to the precedent cited by both the parties and concluded that
it would not be appropriate to invoke the penal provision of striking off the
defense merely due to irregularity in payment of rent by the defendant.
10. The Full Bench of the High Court of M.P., in case of Jagdish
Kapoor Vs. The New Education reported in 1967 MPLJ 837 held as under-
4. The material provision to consider in this case is section 13 (6) of the Act which is
as follows:
"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."
It will be seen that this provision says that "the Court may order the defence against
eviction to be struck out" (underlining is ours) and not that the Court "shall order the
defence to be struck out". The use of the word "may" prima facie shows that the
striking out of the defence under section 13 (6) is in the discretion of the Court. It is
well settled that "may" is a discretionary and enabling word, unless the subject-
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
matter shows that the exercise of the power given by the provision using the word
"may" was intended to be imperative by the person to whom the power is given.
There is no indication whatsoever in the M. P. Accommodation Control Act, 1961, to
show that the exercise of the power of striking out of the defence under section 13
(6) was imperative whenever the tenant failed to deposit or pay any amount as
required by section 13.
5. It must be remembered that the striking out of the defence is in the nature of a
penalty. Section 13 (6) is not a provision intended for the benefit of any party. The
provisions being penal in their nature, the rule of construction that when a power or
faculty is given to the Court that may be exercised for the benefit of particular
persons under certain specified circumstances and it is shown that those particular
circumstances exist under which it was contemplated that the power should be
exercised, then there is an obligation on the Court to exercise the power and the use
of the word "may" in such circumstances has a compulsive force, can have no
applicability. In our opinion, there is no warrant whatsoever for reading the word
"may" used in section 13 (6) as having a compulsive force.
6. The conclusion that section 13 (6) gives discretion to the Court in the matter of
striking out of the defence becomes obvious on a comparison of section 5 (2) of the
Madhya Pradesh Accommodation Control Act, 1955, which was repealed by the
Madhya Pradesh Accommodation Control Act, 1961, and section 13 (6) of the 1961
Act. Section 5 (2) of the Act of 1955 was in the following terms:
"In case of default on the part of the tenant in depositing the rent even after
the order of the Court the right of the tenant to defend shall be terminated:
Provided that the Court may, before making an order of terminating
the right of defence, provide an opportunity to the tenant for depositing the
rent within fifteen days or such longer period as the Court may deem fit to
fix."
It will be noted that the aforesaid provision required the Court to strike out the
defence if a tenant defaulted in depositing the rent after the Court had ordered him to
do so. The proviso to section 5 (2) did not give to the Court any discretion in the
matter of striking out of the defence. It only laid down that before making any order
of terminating the right of defence, the Court may give a further opportunity to the
tenant to deposit rent within 15 days or such longer period as fixed by the Court.
Section 13 (6) of the 1961 Act is not couched in mandatory language. It uses the
word "may". The difference in the language of section 5 (2) of the Act of 1955 and
section 13 (6) of the 1961 Act is significant and indicates that in the new Act there is
a deliberate modification in law in favour of the tenant. In this connection it would
be pertinent to refer to the observations of the Supreme Court in V.K. Verma v.
Radhe Shyam, AIR 1964 SC1317. In that case the Supreme Court compared section
13 (5) of the Delhi Rent Control Act, 1952, which laid down that on the failure of the
tenant to deposit the arrears of rent within the prescribed time, „the Court shall order
the defence against ejectment to be struck out" and section 15 (7) of the Delhi Rent
Control Act, 1958, providing-
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
"If a tenant fails to make payment or deposit as required by this section the
Controller may order the defence against eviction to be struck out and
proceed with the hearing of the application."
The Supreme Court pointed out:
"The change of the words from „The Court shall order the defence against
ejectment to be struck out' to the words „the Controller may order the defence
against eviction to be struck out' is clearly a deliberate modification in law in
favour of the tenant. Under the old Act the Court had no option but to strike
out the defence if the failure to pay or deposit the rent is proved; under the
new Act the Controller who takes the place of the Court has a discretion in
the matter, so that in proper cases he may refuse to strike out the defence."
The provisions of the Delhi Rent Control Acts which the Supreme Court considered
are analogous to section 5 (2) of the M.P. Accommodation Control Act of 1955 and
section 13 (6) of the 1961 Act; and, in our opinion, the observations made by the
Supreme Court for emphasizing the discretionary character of section 15 (7) of the
Delhi Rent Control Act, 1958, fully apply here and leave no doubt that under section
13 (6) of the M. P. Accommodation Control Act, 1961, it is in the discretion of the
Court whether or not to strike out the defence.
******************
9. In Laxmi Kumar Baori's case, (Civil Revision No. 44 of 1966 decided on the 2nd
December 1966 (Gwalior)), Krishnan J. has referred to section 12 (3) and in Babu
Sunderlal v. Ramshankar, (Civil Revision No. 170 of 1965 decided on the 31st
August 1965) Bhargava J. has referred to section 12 (3) and section 13 (5) for
showing that under section 13 (6), it is obligatory for the Court to strike out the
defence. In our judgment, section 12 (3) and section 13 (5) have no bearing
whatsoever on the power given under section 13 (6). Under section 13, a tenant who
fails to make a deposit as required by that section loses the benefit of avoiding a
decree for eviction on the ground of default in the payment of arrears of rent and also
makes himself liable to the penalty of having his defence struck out. If he makes a
deposit as required by section 13, he can avoid a decree for eviction sought on the
ground of default in the payment of arrears of rent. If he defaults, then he cannot get
the benefit of section 12 (3) or section 13 (5). Yet, the Court may in the
circumstances of the case, not impose on him the penalty of striking out his defence.
The fact that the defence is not struck out does not, however, mean that the tenant is
entitled to get the benefit of section 12 (3) or 13 (5). What is required for getting the
benefit of section 12 (3) or 13 (5) is the compliance of section 13. Section 13 (6)
presupposes default. Default may be condoned and the defence may not be struck
out. But the condonation of default cannot in any sense constitute a compliance of
section 13.
*******
11. In our judgment, under section 13 (6) it is not compulsory for the Court to strike
out the defence on finding that the tenant has failed to deposit or pay any amount as
required by section 13. The Court has discretion in the matter of striking out of the
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
defence and that discretion has to be exercised judicially having regard to the facts
and circumstances of each case.
11. Further, in the case of Manoharlal Gopilal Pande Vs. Dr. Abdul
Mazid Khan, reported in 1997(1) MPLJ 232, it was held that that if entire rent
is already deposited and delay caused in payment of rent is not such as would
cause a material injury to the landlord, the delay in payment of rent is liable to
be condoned. In case of Smt. Mumtaz Bee Vs. Smt. Salma Bee, reported in
2001(I) MPACJ 155, it has been held that provisions under Section 13(6) are
of penal nature and must be resorted to only when it is shown that the default
was deliberate. Similar view was expressed by this court in the cases of
Gayaprasad Vs. Pooranchand and another reported in 1972 JLJ Short Note
49; Girishchandra Vs. Prabha Dani, reported in 1980(1) MPWN 239 and
Ajay kumar Vs. Nanalal reported in 2016 (3) MPLJ 521.
12. The present petition relates to illegality and impropriety of the
Order dated 26.04.2025. The facts and circumstances relating to the Order
dated 05.11.2024 are not available for consideration, therefore, the effect of the
same cannot be considered.
13. In view of the above discussion, this court is of considered
opinion that the impugned order does not suffer from any manifest illegality or
material impropriety. The Court of first instance did not commit any
jurisdictional error in exercising the discretion, in declining to invoke the penal
provision of striking off the defence considering the circumstances revealed by
the record. Consequently, no case is made out to interfere in the impugned
NEUTRAL CITATION NO. 2025:MPHC-IND:30835
order in exercise of supervisory jurisdiction under Article 227 of the
Constitution of India.
14. The petition, sans merit, is dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
SEHAR Digitally signed by SEHAR HASEEN
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PRADESH BENCH AT INDORE,
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PRADESH BENCH AT INDORE,CID -
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st=Madhya Pradesh,
serialNumber=e7dbba955b262c04b8413
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Date: 2025.10.27 19:23:27 +05'30'
