[Cites 10, Cited by 0]
Madhya Pradesh High Court
Iqbal Hussain And Ors. vs Amit Kumar Mohata on 17 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:10070
1 FA-282-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF MARCH, 2026
FIRST APPEAL No. 282 of 2005
IQBAL HUSSAIN AND ORS.
Versus
AMIT KUMAR MOHATA AND ORS.
Appearance:
Shri P.C. Chandil - Advocate for appellants.
Shri Anand V. Bhardwaj - Advocate for respondent No.1.
ORDER
1. This first appeal under Section 96 of CPC has been filed against the
judgment and decree dated 23/3/2005 passed by VIII Additional District
Judge Gwalior in Civil Suit No.28A/2001 by which the suit filed by the
plaintiff for eviction under section 12(1)(a) of M.P. Accommodation Control
Act has been decreed.
2. It is not out of place to mention here that suit was filed against
Afzal Hussain. According to appellants, Afzal Hussain died after the
pronouncement of impugned judgment, therefore, this appeal has been filed
by the LRs of Afzal Hussain.
3. Since the controversy lies in a very narrow compass, therefore, it is
suffice to mention here that the plaintiff filed a suit for eviction against the
defendant under Section 12(1)(a), (c) & (o) of M.P. Accommodation Control
Act. However, decree for eviction has been passed on the grounds of arrears
of rent u/s 12(1)(a) of M.P. Accommodation Control Act only.
NEUTRAL CITATION NO. 2026:MPHC-GWL:10070
2 FA-282-2005
4 . By order dated 21/6/2004, the trial Court allowed the application
filed by the plaintiff under Section 13(6) of M.P. Accommodation Control
Act and struck off the defense of the defendant.
5. The said order was challenged by the defendant before this Court
by filing W.P. No.1501/2004. The said petition was dismissed by order dated
13.10.2004 with following observation :
"As common questions with regard to striking off defence by
the learned Court below are involved in both these cases and as
plaintiff/respondent in both these cases being W.P. no.980/2004
and W.P. no.1501/2004 are the same and the tenant/petitioners are
father and son occupying the property now owned by respondent,
both these petitions are being disposed of by this common order.
Initially the property in question belonged to one Laxmi Kumar
Bavri during her life time said Laxmi Kumar Bavre had instituted
the suit in question against the petitioners for their eviction from
the suit property on the grounds contemplated in M.P.
Accommodation Control Act and various other grounds. During
the pendency of the suit, the said Laxmi Kumar Bavre expired and
certain dispute arose between three persons. All these three
persons claimed their right to the property on the basis of a will
executed by Laxmi Kumar Bavri and finally the matter with regard
to right of these persons was settled by this Court and by the
Supreme Court and now on the basis of the probate granted,
respondent has been impleaded as plaintiff and is prosecuting the
suit.
It is the case of the petitioner that till the matter was settled by
the Supreme Court, petitioner was paying rent to Krishna Kumar
of the persons who had claimed the property under the will
executed by Laxmi Kumar Bavri and he had promised him that in
case he i.e. Krishna kumar wins the probate case, he will not
persue the suit and will withdrawn the same, under the bona fide
belief that Krishna Kumar Bavre is the actual owner, it is the case
of the petitioners that he could not deposit the rent for a few
period. Thereafter the present plaintiff submitted an application
praying for striking off defence of the plaintiff under the
provisions of Section 13 (6) of the M.P. Accommodation Control
Act, 1961 and the trial Court has allowed the application by the
impugned order orders dated 17.3.04 and 21.06.04 filed as
Annexure-P/1 in these petitions. Placing reliance on the following
NEUTRAL CITATION NO. 2026:MPHC-GWL:10070
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judgments it was emphasised by Shri Jain, learned Sr. Counsel that
the order passed striking out the defence is not sustainable and
therefore prayed for quashing of the same.
Sayeda Akhtar v. Abdul Ahad, 2003 (3) M.Ρ.Η.Τ. 493
Nasiruddin & others v. Sitaram Agarwal, AIR 2003 SC 1543
Manoharlal Gopilal Pande v. Dr. Abdul Mazid Khan, 1997 (1)
M.P.L.J. 232
Gurbachansingh v. Vimlabai, AIR 1993 (M.Ρ.) 135
It was submitted by Shri Jain, that without considering the
question with regard to promise made to the petitioner by Shri
Krishna Kumar Bavre and the fact that dispute was pending
between Krishna Kumar and respondent which was decided by the
Supreme Court vide Annexure-P/5, striking off defence is not
proper.
Refuting the aforesaid Shri Bharadwaj supported the orders
passed by the trial Court it was submitted that inspite of the fact
that earlier also an order was passed vide Annexure-R/4 and time
was given to the petitioners to deposit the rent further default was
committed by the petitioners and therefore the Court has not
committed any error in striking of defence of petitioners. It has
been argued that this Court in various judgments copies of which
have been produced before me i.e. S.A. No.260/99 decided on
21.4.2003 and F.A. No.111/2000 decided 21.1.2004, have upheld
similar orders and therefore no case for interference in the matter
is made out.
I have heard learned Counsel for the parties at length and
perused the record. Section 13(6) empowers the Court to strike off
defence if the tenant fails to deposit or pay any rent as required by
this Section. There is no dispute in accepting the proposition
putforth by Shri Jain, Sr. Counsel appearing for petitioners that the
aforesaid provisions is directory in nature and are not mandatory.
The only question which is to be considered by this Court in
these petitions under Article 227 of the Constitution is as to
whether exercise of discretion by the Court in striking off defence
can be termed as illegal or erroneous to such an extent that
interference at this stage in a petition under Article 227 is called
for.
In W. P. No. 980/04 the order impugned is Anenxure-P/1 dated
17.3.2004 a perusal of the aforesaid order indicates that after
considering various judgment referred to and cited before this
Court also by Shri Jain, in para 6 & 7, learned Court has
proceeded to assess the facts of the case, in para 8 it has been
indicated in the aforesaid para that the only contention of the
petitioner is that some dispute was pending between various
NEUTRAL CITATION NO. 2026:MPHC-GWL:10070
4 FA-282-2005
persons and therefore it was not known as to who is the actual
landlord and to whom rent is to be deposited. Learned Court has
held that this contention cannot be accepted because rent was not
paid for a long period of time and by an order dated 26.09.1986
petitioners were directed to deposit the rent within a reasonable
time. Thereafter on 6.5.92 plaintiff's application u/s 13(6) was
considered and an order was passed directing the petitioners to
deposit the rent by 24.06.1992. Inspite of this order petitioners
have not deposited the rent and have committed default in
depositing the rent inspite of the order dated 9.5.92. The said order
dated 9.5.92 is on record and has been filed by respondent as
Annexure-R/4. It is therefore clear that on the ground that inspite
of order passed by the Court, petitioners have not deposited the
rent, learned Court has refused to exercise discretion in his favour
and it has found that the petitioners have deliberately failed to
deposit the rent. Analyzing the entire facts and circumstances of
the case, learned Court has held that inordinate delay has been
committed and inspite of order passed in the year 1992 rent has
not been deposited regularly and the defence has been struck off
only after 12 years.
Similarly in W.P. No.1501/04 in the impugned order
Annexure-P/1 dated 21.06.2004 also it has been indicated that no
reason has been given for not deposit of the rent in time. Question
of promise made by Krishna Kumar Bavre has been considered
and same has been rejected by learned Court and it is held that for
years together rent has not been deposited and finding there being
a deliberate omission on the part of the petitioners in depositing
the rent, impugned orders have been passed.
It is therefore, clear that discretion has been exercised by the
Court in passing the impugned order in striking off defence after
considering the facts and circumstances of the case and on being
satisfied that the rent has not been deposited in time and default
has been committed for long period inspite of the order passed by
this Court. Even though during the course of hearing Shri Jain had
tried to submit that the reasons given by the petitioners have not
been considered, the same cannot be accepted. Learned Court on
being satisfied that for more than 12 years petitioners have not
cared to deposit the rent inspite of the order passed by the Court,
has exercised its discretion. Exercise of discretion on the basis of
reasonable appreciation of the material available on record cannot
be interfered with by this Court in exercise of its limited
jurisdiction under Article 227 of the Constitution.
Considering the same, finding no ground to interfere in to the
matter, writ petitions stand dismissed."
NEUTRAL CITATION NO. 2026:MPHC-GWL:10070
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6. Thus, it is clear that the appellants have not complied with the
mandatory provisions of section 13(1) of M.P. Accommodation Control Act
and, accordingly, their defense was also struck off. It is true that merely
because the defense has been struck off would not mean that the tenant
cannot demolish the case of the plaintiff by pointing out the inherent
weaknesses in the case of the plaintiff but in the present case the suit was
initially filed for eviction on multiple grounds including the ground of 12(1)
(a) of M.P. Accommodation Control Act. All the other grounds were found
to be not proved, but since the defendant has failed to pay the rent as
required under section 13(1) of M.P. Accommodation Control Act and did
not obtain any order for extension of time, therefore, the trial Court did not
commit any mistake by granting a decree for eviction.
7. As no case is made out warranting interference, accordingly the
judgment and decree dated 23/3/2005 passed by VIII Additional District
Judge Gwalior in Civil Suit No.28A/2001 is hereby affirmed.
8. The appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Aman
