Madhya Pradesh High Court
Smt. Pushpa Devi vs Shyam Kumar on 31 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 7179 of 2024
SMT. PUSHPA DEVI AND OTHERS
Versus
SHYAM KUMAR AND OTHERS
Appearance:
Shri Mohan Sharma - Advocate for the petitioners.
Shri Lucky Jain - Advocate for the respondents.
Heard on : 12.09.2025
Pronounced on : 31.10.2025
JUDGMENT
The present petition under Article 227 of the Constitution of India has
been preferred by the petitioners/plaintiffs challenging the order dated
13.12.2024 (Annexure-P/1) passed by the 2nd Civil Judge, Senior Division,
District Mandsaur in Case No.219A/2017, whereby the application under
Section 151 of the Code of Civil Procedure, 1908 (for brevity "CPC") CPC
filed by the respondents/defendants has been allowed and they have been
permitted to adduce evidence on the grounds other than Section 12(1) of
M.P. Accommodation Control Act, 1961 (in short "the Act, 1961").
2) Facts in nutshell are that the petitioners/plaintiffs have filed a
Civil Suit seeking eviction of the respondents/defendants tenant from the suit
premises on the various grounds prescribed under Section 12(1) of the Act,
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1961. The respondent/defendant No. 1 has filed written statement opposing
the plaint averments. The respondents/defendants were not depositing the
regular rent before the trial Court, accordingly, the plaintiffs/petitioners filed
an application initially to struck off the defence of the defendants. Further,
even after passing the order by the trial Court, respondents/defendants did
not continue to deposit the rent. As a result, the petitioners/plaintiffs have
filed another application under Section 13(6) of the Act, 1961 praying that
the defence of the respondents/defendants be struck off. Having considered
the facts narrated in the application, trial Court has allowed the said
application. Against which, respondents/defendants moved an application
under Section 151 of CPC seeking permission to adduce evidence. The same
has been allowed vide order dated 13.12.2024. Being aggrieved by the said
order, present petition has been preferred.
3) Counsel for the petitioners/plaintiffs has contended that the
impugned order is completely illegal, arbitrary, unjust, improper and against
the settled principles of law. Learned trial Court has committed grave error
of law and fat by not appreciating that an order dated 20.09.2024 has already
been passed by which the defence of respondents have been struck off. He
has also contended that the trial Court has not adhered to its own order and
permitted respondents/defendants to adduce evidence.
4) Having considered the contentions made by the learned counsel
for the petitioners and upon perusal of the record available, it is found that
the trial Court has allowed the application of the respondents/defendants by
holding that the law laid down by the Hon'ble High Court in the case of
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Kewal Kumar Sharma vs. Satish Chandra Gothi & Anr. reported in 1991
M.P.L.J. 458 in which reliance was placed on the judgment of the Hon'ble
Supreme Court in the case of Modula India vs. Kamakshya Deo reported in
AIR 1989 SC 162 and in Prem Das vs. Laxminarayan Pandey.
5) First of all, to reach the conclusion of the question involved in
this case, the following exceprt of the judgment of Division Bench of this
Court rendered in the case of Kewal Kumar Sharma (supra) , is worth
mentioning here :-
"Recently, the Supreme Court, in Modula India
Vs. Kamakshya Singh Deo, 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 stricking
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
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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
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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 Vs. Dharamdas, (1980) 2 SCC
151 : AIR 1980 SC 587, a case under the M. P.
Accommodation Control Act, the 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
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paid by the tenant during the pendency of the eviction
suit based on the grounds u/s 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 u/s 12(l)(a) of the Act, which is as follows : -
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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.
6) In the case at hand, learned trial Court though has mentioned in
the impugned judgment that the respondenets/defendants will be permitted to
lead the evidence on issues other than the one mentioned under Section 12(1)
of the Act, 1961 but the learned trial Court is interpreting the same as
Section 12(1)(a) of the Act, 1961 i.e. only on non-payment of rent. The
learned trial Court is permitting the respondents/defendants to lead his
evidence on all other issues whereas after the defence has been struck of by
the learned trial Court, the respondents/defendants do not have any right to
lead any evidence on any of the issues as mentioned under Section 12(1) of
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the Act, 1961 and at the most the respondents can lead the evidence under
general law as laid down by the Hon'ble High Court in the case of Kewal
Kumar Sharma (supra).
7) In the aforesaid judgments, it is crystal clear that the tenant whose
right to defence is struck of cannot be permitted to lead evidence for any of
the grounds mentioned under Section 12(1) of the Act, 1961 and he can only
lead his evidence under general law. The adequate protection under Section
12(3) of the Act, 1961 of a tenant that he entitles to claim protection against
eviction on the ground specified in Section 12(1)(a) of the Act, 1961, if the
tenant makes payment or deposit as required by Section 13 of the Act, 1961
and if he fails to do so, no benefit of protection against eviction can be
granted under Section 13 (6) of the Act.
8) In view of the aforesaid discussion as well as settle principles of
law, this Court is of the considered opinion that the impugned order dated
13.12.2024 deserves and is liable to be set aside to the extent of allowing the
application of the respondents/defendants.
9) It is also made clear that the respondents/defendants can only lead
evidence under general law and not on any of the grounds mentioned under
Section 12(1) of M.P. Accommodation Control Act.
10) As a result thereof, present petition is allowed and impugned
order dated 13.12.2024 passed by learned trial Court, is hereby set aside to
the extent as indicated above.
(ALOK AWASTHI)
JUDGE
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Vindesh
