Chhotelal vs Lalta Prasad

P.V. Dixit C.J.

This case has been referred by the learned single Judge for decision on the following questions:-

Where a landlord''s suit for ejectment and a tenant''s suit for assessment of reasonable rent are pending at the same time, must the tenant deposit rent both under S. 5 and S. 11 of the Madhya Pradesh Accommodation Control Act. No. 23 of 1955 ?

If the first question is answered in the negative, in which suit is the tenant bound to deposit the agreed rent ?

The answers to the questions posed depend on section 5 and section 11 (2) (a) of the M.P. Accommodation Control Act, 1955. Section 3 (1) of the Act runs as follows:-

5.(1) On a suit being filed for eviction on any one of the grounds mentioned in Section 4 or in the case of appeal, on the appeal being preferred, the Court shall, on request of the landlord-

(a) if the rent is already agreed upon, order the tenant to deposit in the Court the rent payable according to the terms of the agreement from the due of filing of the suit or appeal till the decision of the suit or appeal;

(b) if the rent is not already agreed upon, fix a reasonable provisional rent and order the tenant to deposit such rent every month in the Court till the decision of the suit or appeal. The rent so fixed shall be payable from the date of the filing of the suit or appeal.

Section 11 prescribes the procedure relating to a suit before the Rent Controlling Authority about the fixation of fair rent. Clauses (a) and (b) of section 11.(2) say -

S. 11 (2) (a) On such suit being presented the Rent Controlling Authority shall if the rent is already agreed upon, order the tenant to deposit in his office the rent payable according to the terms or the rent-deed from the date of filing of the suit till the decision of the suit or its appeal, if any;

(b) When the rent is not already agreed upon the Rent Controlling Authority shall fix a reasonable provisional rent and order the tenant to deposit such rent every month in his office till the decision of the suit or its appeal if any. The rent so fixed shall be payable from the date of (sic) of the suit.

It is clear from the wording of section 5 (1) of the Act that when a suit is filed for eviction on any of the grounds mentioned in section 4, the Court is required on a request being made by the landlord to make a direction with regard to the deposit of rent by the tenant from the date of the filing of the suit by the landlord or from the date of the filing of the appeal, as the case may be. The provision in section 5 about the issue of a direction for deposit of rent by the tenant is mandatory. It does not contain any qualification and does not give any discretion to the Court in the matter of the issue of a direction when the landlord has made a request for the issue of a direction. Similarly section 11 (2) (a) & (b) also make it obligatory for the Rent Controlling Authority to make an order directing the tenant to deposit the rent payable or the reasonable provisional rent from the date of the, filing of the suit till the decision of the suit or its appeal if any Under these provisions, as they stand, a tenant would no doubt be required to make a deposit of rent u/s 11 as well as in a suit for ejectment u/s 4 if the landlord has made a request therein for the deposit of rent by the tenant The institution and termination of a suit u/s 4 and proceedings u/s 11 may not be simultaneous and for some time when both the proceedings are pending, a tenant may be required to make a double deposit, one before the Rent Controlling Authority and another in the court in which the suit for ejectment is pending. But this result seems to be inevitable on the plain language of sections 5 and 11. The contention advanced on behalf of the tenant. that in such a case when two proceedings are pending the tenant should be relieved of the burden of making deposit in one court, cannot be accepted. In the matter of interpreting a statute the argumentum inconvenient is always a weak one Inconvenience and hardship are to be relieved by the Legislature and cannot be taken into consideration in interpreting a statute, the words of which are clear and imperative. This canon of co; struction is firmly settled. The hardship and injustice in requiring a tenant to deposit rent at two laces may be real. It can only be avoided by an amendment of the Act. There is no (sic) in the wording of the material provisions of sections 5 and 11. To hold that on the ground of hardship and injustice a tenant should be excused from making deposit before one authority would be to rewrite the law and not to construe it. The answer to the first question must, therefore, be that tenant has to deposit rent under sections 5 and 11 of the Act in a suit for ejectment as well as in proceedings for fixation of fair rent and that a tenant cannot be relieved of the obligation of making a deposit in one proceeding on the ground that he has already deposited rent in another pending proceedings. In view of this answer to the first question, it is unnecessary to consider the second one.

Shivdayal J.-

If the tenant could be relieved from depositing rent u/s 11 after he deposits rent under S. 5 not only that the object of the provisions will not be defeated but this will also save the tenant from unnecessary harassment of depositing rent twice over which will be an unnecessary hurdle in exercising the right given to him by the law u/s 11. It is an argument that if a relief is given u/s 11 every tenant against whom a suit for eviction is instituted u/s 4 will rush to the Rent Controlling Authority and will pray for reduction of rent. This argument does not appeal to me It is difficult to imagine that the Tranter''s of the law'' ever intended that the tenant should be required to deposit rent twice over; Again, suppose a tenant institutes a third suit u/s 8 of the Act complaining that the landlord has, without any just or sufficient cause, cut off water supply from his premises, then to ask him to deposit rent for'' a third time u/s 11 cannot be justified, I am satisfied from this discussion that once a tenant deposits rent u/s 5 it is wholly unnecessary, and the legislature cannot be presumed to have intended, that the tenant should be asked to deposit rent again and again in as many suits as may be pending.:

The provisions of the law must be interpreted so that they harmonies and are brought in consonance with the object which the framers of the law had in mind. I can understand that rent having been deposited u/s 11, the tenant may be asked again to deposit rent u/s 5 because that deposited u/s 11 is not payable to the landlord in present.

But it is to be seen whether the anomaly can be avoided by judicial interpretation. On reflection I find that there is an obvious and un surmountable difficulty in putting the construction which in this particular circumstance should have been put to the word ''shall in section 11 of the Act. I would analyze this as follows:

Suppose a suit is instituted u/s 11 first, and there is an order for depositing rent and then a suit is instituted u/s 4 and the tenant deposit; rent u/s 5. Now the Rent Controller has no power under the Act to refund the deposit made by the tenant. If the tenant makes an application to the Rent Controller before the order is passed by him u/s 11, it is to be seen whether ''''shall" can le read as may.'''' This is not possible because in a case where no suit is Instituted u/s 5, it b not permissible to read the word "shall" as "may" u/s II. And a provision is either mandatory or directory. It cannot be both.

Take a converse case. If a suit is instituted first and u/s 5 the tenant deposits rent. Then in a subsequent suit u/s 11, the tenant may apply before an order is passed that he should not be obliged to deposit any rent because the name is not payable. u/s 11 (2) it is only rent ''''payable" which is to be deposited. As soon as rent was deposited u/s 5 for payment to the landlord, there remained no rent "payable" by the tenant. But after an order having been passed the Rent Controller, even if the tenant pays rent u/s 5, there is no provision in the Act enabling the Rent Controller to withdraw his order or to order a refund before the disposal of the proceedings before him. This is an obvious lacuna in section 11. To my mind, there is no lacuna in the provisions relating to deposit because the word ''Payable" in section 11 gives a relief to the tenant against a double deposit The lacuna lies not providing for a refund of the deposit u/s 11 as soon as rent is paid u/s 5 But such a hardship can be no ground for interpreting the law in a manner not warranted by its language. Exceptions cannot be added by judicial interpretation, nor can law be re-written in the Court. That function is exclusively of the legislature.

In the result I entirely agree with my Lord.