1. This Second Appeal under Section 100 of CPC has been filed against
the Judgment and Decree dated 26-2-2005 passed by XIIth Additional District
Judge (Fast Track Court), Gwalior in Civil Appeal No. 4-A/2005 as well as
Judgment and Decree dated 15-9-2004 passed by VIIIth Civil Judge Class I,
Gwalior in Civil Suit No. 96-A/2001.
2. The appellant is the tenant who has suffered decree for eviction under
Section 12(1)(a) of M.P. Accommodation Control Act on the ground of
arrears of rent.
3. Since, the controversy revolves in a very narrow compass, therefore, it
is not necessary to mention the facts of the case in detail. It is sufficient to
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mention that a civil suit was filed in respect of Shops no. 3 and 4, situated in
Jalim Singh Ki Goth, DahiMandi, Laskhar, Gwalior on several grounds
including on the ground of arrears of rent. All other grounds were not found
proved except that the tenant is in arrears of rent. Therefore, this Court is
only concerned with the question as to whether a decree for eviction has been
rightly passed against the tenant on the ground of arrears of rent or not?
4. It was the case of the plaintiff that the tenant has paid rent upto 14-12-
1985 and thereafter, he did not pay rent accordingly, it was pleaded that tenant
is in arrears of rent w.e.f. 15-12-1985 till 14-4-1987 i.e., 16 months. The civil
suit was filed on 14-5-1987.
5. The appellant filed his written statement and denied the plaint
averments. It was pleaded that the tenant has paid Rs.4900/- by way of arrears
of rent but the receipt was not given. Thus, the defendant denied that he is in
arrears of rent
6. After framing issues & recording evidence, Trial Court granted a
decree for eviction on the ground of arrears of rent.
7. Being aggrieved by Judgment and Decree passed by the Trial Court, the
appellant preferred an appeal which too was dismissed by the impugned
Judgment and Decree passed by the Appellate Court.
8. This appeal was admitted on the following Substantial Question of Law
:
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Supreme Court in the case of G. Reghunathan Vs. K.V. Varghese reported in
AIR 2005 SC 3680, Modern Hotel, Gudur represented by M.N.
Narayanan Vs. K. Radhakrishnaiah and others reported in (1989) 2 SCC
686 and K. Narasimha Rao Vs. T.M. Nasimuddin Ahmed reported in
(1996) 3 SCC 45, the earnest money of Rs.10,000/- is liable to be adjusted &
thus the tenant/appellant was not in arrears of rent.
11. The submission made by Counsel for respondents, that the appellant
has committed multiple defaults in payment of rent during the pendency of
civil appeal as well as in the present appeal was admitted by the Counsel for
the appellant and it was also accepted that the appellants are still in arrears of
rent. However, it was submitted that since, the appellant was not in arrears of
rent on the date of filing of suit, therefore, he was not required to follow the
mandate of Section 13(1) of M.P. Accommodation Control Act, by depositing
the rent by 15th of every succeeding month.
12. Considered the submissions made by Counsel for the parties.
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In the case of Modern Hotel (Supra), Section of 7 Andhra Pradesh Buildings
Lease, Rent and Eviction Control Act provides that "where the fair rent of a
building has not been so fixed -(a) the landlord shall not after the
commencement of this Act claim, receive or stipulate for the payment of any
premium or other like sum in addition to the agreed rent: provided that the
landlord may receive or stipulate for the payment of an amount not exceeding
one months rent by way of advance; (b) save as provided in clause (a), any
sum paid in excess of the agreed rent whether before or after the
commencement of this Act, in consideration of the grant, continuance or
renewal of the tenancy of the building after such commencement, shall be
refunded by the landlord to the person by whom it was paid or, at the option
of such, shall be otherwise adjusted by the landlord. Similar is the provision
in Tamilnadu Buildings Lease and Rent Control Act.
14. The Counsel for the appellant has relied upon Section 6 of M.P.
Accommodation Control Act which reads as under :
(2) No person shall, in consideration of the grant, renewal or
continuance of a tenancy or sub-tenancy of any accommodation :-
(b) Except with the previous permission of the Rent Controlling
Authority, claim or receive the payment of any sum exceeding one
month's rent of such accommodation as rent in advance.
(3) It shall not be lawful for the tenant or any other person acting or
purporting to act on behalf of the tenant or a sub-tenant to claim or
receive any payment in consideration of the relinquishment, transfer
or assignment of his tenancy or sub-tenancy, as the case may be, of
any accommodation.
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(4) Nothing in this Section shall apply to any payment made under
an agreement by any person to a landlord for the purpose of
financing the construction of the whole or part of any
accommodation on the land belonging to, or taking on lease, by the
landlord, if one of the conditions of the agreement is that the
landlord is to let to that person the whole or part of the
accommodation when completed for the use of that person or any
member of his family :
Provided that such payment shall not exceed the amount of agreed
rent for a period of five years of the whole or part of the
accommodation to be let to such person.
(5) Any payment made under sub-section (4) shall be deemed to be
the payment of rent in advance for such period from the
commencement of the tenancy to which it is relatable.
15. Although as per Section 6(2)(a) of M.P. Accommodation Control
Act, no person shall claim or receive the payment of any sum as
premium or pugree or claim or receive the payment of any sum
exceeding one month's rent of such accommodation as rent in advance
but unlike Section 6(4) of M.P. Accommodation Control Act, there is no
provision that such premium or pugree shall be adjustable against the
arrears of rent. The Supreme Court in the case of Bhoja (Supra) has
held as under :
14. The Act does not contain any provision for automatic
adjustment of excess rent. As already noticed, neither in reply to the
notice under Section 106 of the Transfer of Property Act nor in the
written statement or through any other writing was the adjustment
of excess rent towards the arrears claimed by the tenant from the
landlord. There was also no agreement between the parties at any
point of time for adjustment of the excess rent illegally paid towards
the rent falling due subsequently.
15.InMohd. Salimuddin v. MisriLal the facts were that the tenant
had advanced a sum of Rs 2000 to the landlord in order to secure
the tenancy by an agreement which specifically provided that the
loan amount could be adjusted against the rent which accrued
subsequently. The landlord filed a suit against the tenant for eviction
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on the ground of arrears of rent. The lower appellate court dismissed
the suit holding that the tenant was not in arrears of rent since the
amount advanced by the tenant as loan as per the agreement could
be adjusted against the rent and the said amount was sufficient to
cover the landlord's claim of arrears. The High Court in the second
appeal filed by the landlord however set aside the judgment of the
first appellate court holding that the loan advanced by the tenant
being in violation of the provisions contained in Section 3 of the Act
could not be adjusted and that the tenant was in arrears of rent and
therefore liable to be evicted. On an appeal by special leave this
Court noticed the following admitted facts: (SCC p. 380, para 2)
"(1) The tenant had advanced a sum of Rs 2000 under an agreement
which inter alia contained a stipulation that the loan amount was to
be adjusted against the rent which accrued.
(2) The amount so advanced by the tenant was sufficient to cover
the landlord's claim of arrears.
(3) If the loan amount was accordingly adjusted towards the rent
which accrued, the tenant was not in arrears of rent.
16. This Court did not agree with the High Court that since the loan
advanced by the tenant was in violation of the prohibition contained
in Section 3 of the Rent Act, the tenant was not entitled to claim
adjustment of the loan amount against rent which had accrued
subsequently. Allowing the appeal the Court rejected the application
of doctrine of pari delicto to the facts of the case by observing:
(SCC p. 381, para 4)
"... The doctrine of pari delicto is not designed to reward the
'wrongdoer', or to penalize the 'wronged', by denying to the victim
of exploitation access to justice. The doctrine is attracted only when
none of the parties is a victim of such exploitation and both parties
have voluntarily and by their free will joined hands to flout the law
for their mutual gain. Such being the position the said doctrine
embodying the rule that a party to a transaction prohibited by law
cannot enforce his claim in a court of law is not attracted in a
situation like the present."
Consequently, the judgment and decree passed by the High Court
was set aside and that of the first appellate court restored. This
judgment, has no application to the facts of the present case as
leaving aside everything else, the agreement by which the sum of
Rs 2000 had been advanced, by the tenant to the landlord to secure
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the tenancy, had specifically provided that the loan amount could be
adjusted against the rent which may accrue subsequently. It would
have been perpetuating immorality if the landlord after taking loan
of Rs 2000 with the clear stipulation regarding its adjustment
against arrears falling due subsequently was to rely on the illegal
nature of the transaction and deny adjustment. There is not even a
demand, much less any agreement, between the parties in the
present case for adjustment of the excess amount of rent illegally
paid towards the rent accruing subsequently.
17. In Sarwan Kumar OnkarNath v. Subhas Kumar Agarwalla the
facts were as follows:
The appellant was a lessee of the building belonging to the
respondent on a monthly rent of Rs 70. At the time of taking the
premises on rent, he paid in advance two months' rent i.e. Rs 140.
The appellant paid rent regularly thereafter but did not pay rent for
the months of September and October 1972. Taking advantage of
the non-payment of the rent in respect of the said two months, the
respondent-landlord filed a petition for eviction against the
appellant-tenant contending that the appellant being a defaulter in
payment of rent for two months had become liable to be evicted
from the premises in question under clause (d) of Section 11(1) of
the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
The tenant pleaded inter alia in his written statement that from the
time of inception of the tenancy, he had paid the respondent a sum
of Rs 140 as advance rent with an understanding that the amount of
advance could be set off against the rent whenever necessary or
required and that since under Section 3 of the Act it was not lawful
for the landlord to claim or receive, in consideration of the grant,
renewal or continuance of the tenancy of any building, any amount
by way of advance or premium the appellant could not be
considered to be a defaulter in payment of rent. Agreeing with the
plea of the tenant, the trial court dismissed the suit and the appeal
filed by the landlord before the Additional Subordinate Judge also
failed. The landlord filed a second appeal before the High Court.
The High Court on facts found that the tenant had failed to pay the
rent for the months of September and October 1972. It accepted the
plea of the tenant that he had paid the sum of Rs 140 as rent in
advance but set aside the concurrent judgments of the courts below
on the ground that since the tenant had neither orally nor in writing
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informed the landlord that he was exercising the option, under the
agreement, to adjust the amount paid in advance towards the rent
due for the months of September and October 1972 he could not get
the benefit of that amount paid to save himself from eviction. This
Court allowed the appeal and held that the tenant was, in view of
the advance paid and the agreement between the parties, not in
arrears of rent and setting aside the judgment of the High Court
restored that of the trial court which had been affirmed by the first
appellate court.
18. This Court took notice of the fact that though the receipt under
which the advance rent of Rs 140 had been paid did not state that
the amount received "was liable to be adjusted towards the arrear of
rent only on the appellant informing the respondent orally or in
writing that such adjustment is to be made" but it construed the plea
set out in the written statement to adjust the advance towards the
rent due as amounting to an assertion as contemplated by the
agreement and therefore it was held that the tenant could not be
treated as a defaulter. Sarwan Kumar case also is not an authority
for the proposition of "automatic adjustment" as canvassed by
learned counsel for the appellant because the construction placed by
this Court on the written statement in Sarwan Kumar case was to
the effect that the tenant had sought adjustment of the advance paid
against the rent due for two months. That judgment also, therefore,
does not advance the case of the appellant.
19. On the other hand, the opinion expressed by the Full Bench of
the Patna High Court in Gulab Chand Prasad v. Budhwanti which
has received the seal of approval of this Court in Budhwanti v.
Gulab Chand Prasad fully supports the case of the landlord. The
precise question which was considered by the Patna High Court
was:
"Whether the excess rent paid by the tenant to his landlord,
consequent upon a mutual (though illegal) enhancement of rent
would be automatically adjusted against all subsequent defaults in
payment of monthly rent for purposes of Sections 4, 5 and 11 of the
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947?"
20. After a detailed discussion and reference to a catena of
authorities, the answer to the above question was rendered in the
negative and it was held that the excess rent paid by the tenant in
pursuance of mutually agreed illegal enhancement thereof by the
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parties does not get automatically adjusted against the subsequent
defaults in the payment of the monthly rent under the Act and even
under the general law such an automatic adjustment is not
countenanced.
16. In reply, Ex. D.6, to the notice, Ex. P.4, it was stated by the
appellant/tenant that Rs. 10,000/- are with the landlord which are liable
to be refunded at the time of vacating shops, but did not ask for
adjustment of the said amount against the arrears of rent. On the
contrary, it was contended that landlord wants to enhance the rent
therefore, he has refused to accept the rent agreed upon between the
parties and only after intervention by the members of the Society, the
landlord has received Rs. 4,900 towards arrears of rent but has not given
the receipt. It was also claimed that the landlord is already charging
more than the standard rent and the tenant would be forced to approach
the RCA for fixation of standard rent. However, admittedly the
appellant/tenant never approached the RCA for fixation of standard rent.
17. In the written statement, it was claimed by the appellant/tenant that at
the time of creation/grant of tenancy, it was agreed upon that the advance
amount shall be adjustable against arrears of rent, but also claimed that w.e.f.
14-12-1985, the landlord had refused to accept notice and accordingly with
the intervention of members of the society, the appellant paid the entire
arrears of rent i.e., 4, 900/-, but receipt was not given. Thus, the appellant
never admitted in his written statement that he was ever in arrears of rent and
therefore, did not pray for adjustment of advance amount against the arrears
of rent. Although in para 14 of his special plea, it was contended that at the
time of grant of tenancy, it was agreed that the advance amount shall be
adjustable against the arrears of rent, but this contention is contrary to the
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tenancy agreement, Ex. P.1. It was mentioned in the tenancy agreement, Ex.
P.1, that the amount of Rs. 10,000/- shall be refundable on vacating the
premises but there is no condition, that the amount of Rs. 10,000/- can also be
adjusted against the arrears of rent. Section 92 of Evidence Act prohibits any
oral evidence for contradicting, varying, adding to, or subtracting from, its
terms.
18. Thus, it is held that neither in the reply to the show cause notice, Ex.
P.6, nor in the written statement, the appellant ever sought adjustment of Rs.
10,000/- against the arrears of rent. On the contrary, the appellant had
pleaded that he has already paid Rs. 4,900/- by way of arrears of rent for
which receipt was not given by the appellant.
19. Under these circumstances, it is held that in absence of any provision
for automatic adjustment of pugree or premium and in absence of any prayer
for adjustment of Rs. 10,000/- against the arrears of rent either in reply to
notice, Ex. P.6 or in the written statement, it is held that the advance amount
of Rs. 10,000/- deposited by the appellant/tenant is not liable to be
automatically adjustable.
20. The Supreme Court in the case of G. Reghunathan (Supra) has held
that although provisions of Section 8 of Kerala Buildings (Lease and Rent
Control) Act, 1965 have been declared ultra vires by Kerala High Court, but
in view of the fact that tenant had paid Rs. 85,000/- as security, therefore, two
months time was granted to deposit the rent in arrears till the date of
pronouncement of judgment. However, in the present case, no such liberty
can be granted to the appellant/tenant for the reason, that the tenant/appellant
has admitted multiple defaults in depositing the rent during the pendency of
civil appeal as well as this appeal.
21. I.A. No. 846/2026 has been filed by the respondent for taking
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documents on record. Along with this application, the respondent has filed the
copy of statement of deposit of rent produced by the appellant himself before
the Executing Court. The appellant has not disputed the said statement and
also admitted that the appellant has committed multiple defaults and did not
deposit the rent as required under Section 13(1) of M.P. Accommodation
Control Act.
22. Section 13(1) of M.P. Accommodation Control Act reads as under :
13. When tenant can get benefit of protection against eviction. -
[(1) On a suit or any other proceeding being instituted by a landlord
on any of the grounds referred to in Section 12 or in any appeal or
any other proceeding by a tenant against any decree or order for his
eviction, the tenant shall, within one month of the service of writ of
summons or notice of appeal or of any other proceeding, or within
one month of institution of appeal or any other proceeding by the
tenant, as the case may be, or within such further time as the Court
may on an application made to it allow in this behalf, deposit in the
Court or pay to the landlord, an amount calculated at the rate of rent
at which it was paid, for the period for which the tenant may have
made default including the period subsequent thereto up to the end
of the month previous to that in which the deposit or payment is
made ; and shall thereafter continue to deposit or pay, month by
month by the 15th of each succeeding month a sum equivalent to
the rent at that rate till the decision of the suit, appeal or proceeding,
as the case may be.
23. From plain reading of Section 13(1) of M.P. Accommodation
Control Act, it is clear that this Section is in two parts i.e., (i) after
receiving the writ of summons or notice of appeal or of any other
proceedings , or within one month of institution of appeal or any other
proceeding by the tenant, as the case may be, or within such further time
as the Court may on an application made to it allow in this behalf deposit
in the Court or pay to the landlord, an amount calculated at the rate of
rent at which it was paid for the period for which the tenant may have
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made default including the period subsequent thereto up to the end of the
month previous to that in which the deposit or payment is made; and
(ii) shall thereafter continue to deposit or pay, month by month by the
15th of each succeeding month a sum equivalent to the rent at that rate
till the decision of the suit, appeal or proceeding, as the case may be.
24. Thus, it is clear that in case if the arrears of rent are not deposited
within a period of one month from the date of receipt of writ of summons
or notice or appeal or within one month from the institution of appeal by
the tenant, then the time can be extended by the Court on an application
filed by the tenant, but so far as condition of depositing the rent by 15th
of every succeeding month till the decision of the suit, appeal or
proceeding, as the case may be is concerned, there is no provision of
extension of time.
25. The Supreme Court in the case of Ashok Kumar Mishra Vs.
Goverdhan Bhai, reported in (2018) 12 SCC 533 as under :
11. The learned counsel for the respondent tenants vehemently
argued that the respondents who are the legal representatives of the
original tenant were not aware of the default. It is not possible to
accept this contention since they were clearly aware of the fact that
they were living in tenanted premises and were bound to pay rent.
In any case we find that even if the impleadment of legal
representatives on 6-7-2009 there are defaults for a period of two
years thereafter.
12. In the circumstances, we find no merit in the contention that
the respondents had paid rent regularly. The learned counsel for
the respondents also contended that the respondents are willing to
pay arrears of rent now before this Court and this Court may
condone such delay. The learned counsel for the respondents relied
on Section 13(5) of the Act which reads as follows:
"13. (5) If a tenant makes deposit or payment as required by sub-
section (1) or sub-section (2), no decree or order shall be made by
the Court for the recovery of possession of the accommodation on
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the ground of default in the payment of rent by the tenant, but the
Court may allow such cost as it may deem fit to the landlord."
13. We are of the view that on a plain reading, this provision
protects a tenant from eviction if a tenant makes deposit/payment
as required by Section 13(1) or 13(2) of the Act. In other words, if
the tenant has complied with the provisions of Sections 13(1) and
13(2) in the matter of making payment, he is protected from
eviction. It must be remembered that the provisions of Section 13
of the Act shied a tenant from eviction if the tenant regularly pay
rent after the suit is filed.
14. Accordingly, it provides a locus poenitentiae to the tenant.
Section 13(5) of the Act reiterates the protection by stating that if
the tenant makes payment post-suit in accordance with the
provisions of Sections 13(1) and 13(2) of the Act, he shall not be
liable for eviction. This section does not confer the power on the
court to condone the defaults in payment of rent after the suit is
filed. It is, therefore, not possible for us to accept this contention.
In the circumstances, the impugned judgment1 of the High Court
is set aside.
15. The respondents are directed to be evicted from the scheduled
premises. They shall vacate and hand over vacant possession of the
premises to the landlord within one month.
(Underline supplied)
26. Thus, it is clear that default committed by tenant after the suit is filed
cannot be condoned by the Court especially by the Appellate Court.
27. So far as the contention of Counsel for appellant, that unless and until,
it is finally held that the tenant was in arrears of rent on the date on institution
of suit, till then the tenant is not required to deposit the rent during the
pendency of suit or appeal by 15th of every succeeding month is concerned,
the same is misconceived. As per provision of Section 13(1) of M.P.
Accommodation Control Act, every tenant is required to deposit the monthly
rent by 15th of every succeeding month during the pendency of suit or appeal.
Condition of deposit of month rent by 15th of every succeeding month is
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applicable even in those cases, where the eviction has not been sought on the
ground of arrears of rent.
28. No other argument is advanced by the Counsel for the parties.
29. Thus, the Substantial Question of Law is answered in Negative and
against the appellant/tenant.
30. Ex consequenti, the Judgment and Decree dated 26-2-2005 passed by
XIIth Additional District Judge (Fast Track Court), Gwalior in Civil Appeal
No. 4-A/2005 as well as Judgment and Decree dated 15-9-2004 passed by
VIIIth Civil Judge Class I, Gwalior in Civil Suit No. 96-A/2001 are hereby
affirmed.
31. The appellant is directed to vacate the suit shops No. 3 and 4. In case if
execution proceedings are initiated, then in the light of judgment passed by
Supreme Court in the case of Periyammal (D) through his Legal
Representatives Vs. V. Rajamani and another etc. decided on 6-3-2025 in
C.A. No. 3640-3642/2025, the Executing Court shall positively conclude the
Execution proceedings within a period of 6 months from the date of its
institution.
32. Appeal fails and is hereby Dismissed.
(G.S. Ahluwalia)
Judge
Aman
