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Judgment
H.G. Mishra, J.
This is appeal by the Defendant against the judgment and decree dated 10-1-1978 passed by the Second Additional District Judge, Gwalior in Civil Appeal No. 18-A/77 confirming the judgment and decree dated 15-1-1977 passed by the Fourth Civil Judge, Class II, Gwalior in Civil Suit No. 39-A/72 decreeing the suit of the Plaintiff on the ground under Sections 12(1)(a) and 12(1)(h) of the Accommodation Control Act, 1961 (hereinafter referred to as the Act).
The Plaintiff Respondent instituted the present suit on the allegations that the tenant is occupying the suit shop at the rate of Rs. 20 p.m. In the plaint, the rent is claimed to be due from 17-10-1971; and an amount of Rs. 190 is claimed on account of arrears or rent and mesne profit. The date of the suit is 31-7-1972.
The Plaintiff claimed the decree on the ground of reconstruction of the suit shop. The allegations that the Plaintiff has prepared the requisite plans and estimate, and is possessed of sufficient means to reconstruct the suit shop along with other premises.
The Defendant contested the suit on the ground that the requirement for reconstructions as alleged by the Plaintiff is not bona fide and that the shop cannot be vacated on the ground of reconstruction.
As to the arrears, the Defendant deposited on 19-9-1972 an amount of Rs. 240 purporting to be an amount equal to rent between the period of 7-10-1971 upto 31st October 1972 and thereafter admittedly made the following deposits:
S. No.
Book No.
Receipt
No.
Date of
Deposit
Amount deposited.
Rent deposited for the period.
2326
94
9-10-72
00
Up to January 73.
2382
35
10-1-73
00
" March 73.
2910
93
2-3-73
00
" April 73.
2941
72
18-4-73
20 00
" May 73.
2957
36
5-5-73
00
June 73 to Aug. 73.
4457
81
13-9-73
00
Sept. and Oct. 73.
3421
62
17-10-73
40 00
Nov and Dec. 73.
3470
38
13-12-73
20 00
Jan. 1974.
1351
29
15-1-74
00
Feb.1974.
4123
28
15-2-74
00
March, April 74.
4144
12
13-3-74
00
May, June 74.
4190
57
17-7-74
00
July to Oct. 74.
4383
82
14-8-74
00
Nov. 74 to Feb. 75.
6775
72
15-1-75
00
March, April 75.
5794
1
18-2-75
40 00
May and June 75.
7201
53
11-4-75
40 00
July, Aug. 75.
7235
87
23-6-75
00
Sept Oct. 75.
7259
89
15-7-75
20,00
Nov, 1975.
7421
70
12-8-75
00
Dec. 75 and Jan. 76.
7482
60
6-10-75
2000
Feb. 76.
3061
21
14-11-75
00
March 1976.
3082
84
22-12-75
00
April, May 76.
1979
1
23-2-76
00
June 1976.
1889
75
10-3-76
40 00
July, Aug. 76.
5546
70
14-5-76
00
Sept., Oct. 76.
586
7
10-8-76
00
Nov., Dec. 76.
1521
9
4-11-76
60 00
Up to March 1977.
2713
18
6-1-77
00
April 1977.
And later on he deposited the rent monthly upto 15th of every month.
The trial Court decreed the suit on both the grounds u/s 12(1)(a) and 12(1)(h) of the Act.
Aggrieved by this, the Defendant preferred appeal which was dismissed. This is second appeal preferred by the Defendant.
The learned Counsel for the Defendant-Appellant the following contentions:
(1) that the Courts below erred in treating the Appellant as defaulter inspite of the fact that-
(a) the Defendant had deposited within one month of the service of writ of summons of the suit on him the entire amount of arrears of rent, and
(b) inspite of the Defendant having deposited the entire amount thereafter in advance on the dates and in the sums detailed above in para 5 of this order. The learned Counsel further submitted that the case reported in Noor Mohammad v. Jiyalal 1970 JLJ 100 is not applicable to the present situation.
(2) The second contention advanced by the learned Counsel for the Appellant was that the ground u/s 12(1)(h) of the Act has not been made out in as much as the future plan submitted by the Plaintiff Respondent in the case (which is Ex. P-7) does not correspond to the dimensions of the existing shop. Therefore, it cannot be treated as a proper plan and no decree u/s 12(1)(h) of the Act can be sustained.
The learned Counsel on behalf of the Plaintiff Respondent submitted that ratio of the case reported in Noor Mohammad v. Jiyalal is applicable to the case and that the tenant has not deposited the rent month by month by 15th of each succeeding month as required by the Section 13(1) of the Act. It is also argued that inspite of advance deposit the Defendant tenant has to be treated as a defaulter. In respect of the second contention, it is tried to be met by the argument that the ground u/s 12(1)(h) having been found to be made out, cannot be disturbed in second appeal. All the essential ingredients of the clause (h) of Sub-section (1) of Section 12 of the Act have been found to be proved. Besides this, even if the shop after construction at place marked by ''X'' in Ex. P-7 will be slightly bigger, The Plaintiff will have no objection in giving re-entry, if found to be necessary in accordance with law.
After having, heard the learned Counsels of both the parties, I am of the opinion that the appeal deserves to be allowed partly.
So far as the question whether the ground u/s 12(1)(a) is made out or not, it is necessary to set out certain facts which were before Sen J. in Second Appeal No. 909/65 Noor Mohammad v. Jiyalal. In that case, the Plaintiff filed the suit for ejectment of the tenant on the ground u/s 12(1)(a) and (e) of the Act alleging that the Defendant was in arrears of rent with effect from 1-5-1962 to 30-4-1963 and despite a notice of demand dated 9-4-1963 had not paid the same. The suit was instituted on 22-7-1973. The Defendant disputed the ground u/s 12(1)(a) and (e). Facts of that case pertaining to the arrears of rent, being relevant, are being given hereunder:
(a) The Defendant alleged that he had deposited Rs. 276 on 29-1-1963 in some other suit, number of which was given as 8-A of 1961, instead of Civil Suit No. 107-A of 1962 (which was the number of the case giving rise to the aforesaid second appeal).
(b) The writ of summons of the suit was served on the Defendant in that case on 6th August 1963. On 18-9-1963, he submitted written statement along with an application u/s 13(1) of the Act. It is worthy of note that there was neither a deposit made along with this application nor any prayer for extension of time. Instead, the Defendant asserted that by depositing Rs. 276 in Civil Suit No. 107-A of 1962 wherein decree was for Rs. 180, he had made an over payment of Rs. 94 and asked the Plaintiff to explain how he had adjusted the same, to enable him to deposit the rent in the Court. After narrating these facts the judgment of Hon''ble Sen J. proceeds to give the further facts which are noted hereunder:
(c) The application of the Defendant submitted en 18th September, 1963 (purporting to be u/s 13(1) of the Act) was strictly speaking not an application u/s 13(1)(a) of the Act. The Plaintiff in his reply dated 9th October, 1963 repudiated that there was no excess payment. On the contrary, he asserted that Rs. 107.07 still remain due towards the decree after adjustment.
(d) In para 5 of the said judgment the opening words are "these circumstances clearly bring out that the Defendant was in arrears of rent on the date of the institution of the suit." Thereafter paragraph No. 7 of the aforesaid judgment is relevant for purposes of the present controversy and the same is being reproduced hereunder:
Applying these principles to the present case, it must, accordingly, be held that the Defendant is liable to be evicted on the ground mentioned in Section 12(1)(a) because of his failure to comply with both the requirements of Section 13(1). After institution of the suit, the Defendant deposited Rs. 150 on 13th December, 1963, Rs. 50 on 2nd May 1964 and Rs. 124 on 14th July 1964. It is thus apparent that the deposits were not made, month by month, on the 15th of each succeeding month. Such lump sum deposites are not deposits made in accordance with the requirements of Section 13(1).
(Copy of the judgment was made available to me by the learned Counsel for the Appellant at the time of hearing).
Thus from the resume of the facts as appearing in the judgment of the case reported as Noor Mohammad v. Jiyalal it is clear that in that case the following circumstances were taken into consideration by his Lordship and on the basis of them, it was held that the Defendant had failed to comply with both the limbs of Section 13(1) of the Act:
(a) there was neither a deposit made along with application dated 18-9-1963 nor any prayer for extension of time was made.
(b) the application submitted by the Defendant was not an application u/s 13(1).
(c) the Defendant had deposited the rent in another suit No. 8-A of 1961.
(d) the Defendant deposited Rs. 150 on 13-12-1963, Rs. 50 on 2-5-1964 and Rs. 124 on 14-7-1964.
Therefore, the aforesaid case turned on these circumstances and such as it is distinguishable on facts so far as the present case is concerned. In para. 7 of the aforesaid judgment the words "such lump sum deposits" are significant (italics by me). The lump sum deposits in the aforesaid case were not deposits of rent in advance. The Defendant in the aforesaid case did not deposit the entire arrears of rent within one month of the service of summons on him and thus failed to comply with the first limb. He also failed to comply with the second limb of Section 13(1) of the Act. The three subsequent deposits made on 13-12-1963, 2-5-1964 and 14 7-1974 were not deposits or rent in advance. Therefore, the lower Courts acted contrary to law when they assumed that the judgment laid down the law that even if rent is deposited in advance, the tenant will be treated as defaulter. That is not the ratio of the case.
The learned Counsel for the Defendant has placed reliance on the decision of Jairamdas v. Sokhlia Second Appeal No. 223 of 1967 decided on 20-1-1971 by Shiv Dayal J. (as he was then). In that case the contention of the learned Counsel for the Plaintiff Appellant was that the deposit of Rs. 4.25 P. made on 16-4-1965 and Rs. 8.50 made on 14-7-1965 were not in time. The contention on behalf of the tenant was that he had not committed any default and that he had been careful enough to go on depositing rent for one month in advance. Therefore, the question which fell in this case for decision was the same as arises in the present case also. In order to appreciate the point, the relevant paragraph from this judgment is being extracted below:
Shri Naokar particularly relied on two deposits to show that there was default. On April 16, 1965 there was a deposit of Rs. 4.25 which purported to have been deposited as rent for the month of March 1965. Again on July 14, 1965, the tenant deposited Rs. 8.50 P. which purported to be the rent which accrued for the months of April and May 1965, the monthly rent being Rs. 4.25 P. But from the following facts and figures it will be clear that the tenant was careful enough to go on depositing rent for one month in advance.
Date of deposit
Amount deposited
Period for which rent deposited.
18-11-64
Rs. 131.75 P.
to 30-11-64
15-1-65
Rs. 8.50 P.
1-12-64 to 31-1-65
15-2-65
Rs. 4.25 P.
1-2-65 to 28-2-65
15-3-65
Rs. 4.25 P.
1-3-65 to 31-3-65
16-4-65
Rs. 4.25 P.
1-4-65 to 30-4-65
14-6-65
Rs. 8.50 P.
1-5-65 to 30-6-65
14-7-65
Rs. 8.50 P.
1-7-65 to 30-8-65
18-8-65
Rs. 4.25 P.
1-9-65 to 30-9-65
It is not necessary to state other dates of deposits. Thus the amount deposited on March 15, 1965 was not for the month of February, but it was for the month of March, that is to say, that it was deposited in advance because the Defendant was entitled to deposit rent which accrued due for the month of March, by April 16, 1965. Therefore, the deposit made on April 16, 1965 was not for the month of March but it was of the month of April, and, therefore, the objection of Shri Naokar that it should have been deposited by April 15, there was default as it was deposited on April 16, is not tenable. So also since the rent deposited on April 16 was for the month of April itself. The amount which was deposited on June 14, 1965 was not for the months of April and May but for the months of May and June, the rent of one month having been deposited in advance. This contention must, therefore, be rejected.
(Italics by me).
The principle on which this case has been decided is that if a tenant goes on depositing rent in advance, he cannot be held to be a defaulter for purposes of the second limb of Section 13(1) of the Act, Section 13(1) has two limbs:
(1) the first limb provides for deposit of arrears of rent, and
(2) the second limb provides that the Defendant has to deposit rent month by month on 15th of each succeeding month.
When the tenant makes deposit in advance of an amount equal to rent payable by him, he cannot be held to be a defaulter for purposes of the second limb of Section 13(1) of the Act. In the present case the Defendant Appellant after having made the initial deposit admittedly within one month of the service of writ of summons on him of the entire arrears of rent claimed by the Plaintiff, made all the deposits thereafter on the dates and of all the amounts specified in para 5 above in advance i.e. before they fell due.
Consequently, as and when amount of rent fell due, the advance deposits came to the rescue of the Defendant to save him from becoming a defaulter. The postulate of law is not and cannot be to insist on the formality of withdrawal of the rent deposited in advance and of re depositing the same after the rent became due during pendency of the suit. Therefore, the Appellant could not be held to be a defaulter. Both the lower Courts have acted illegally in holding that the ground u/s 12(1)(a) is available to the Plaintiff inspite of the Defendant having complied with both the limbs of Section 13(1) of the Act as stated above. Therefore, the decree passed on the ground u/s 12(1)(a) of the Act cannot be sustained and the ground ought to have been negatived and is negatived hereby.
In view of the aforesaid discussion, the decree remains only on the ground of Section 12(1)(h) of the Act. Section 18(3) of the Act confers a statutory right on the tenant to exercise right for re-entry in the suit premises after reconstruction. The counsel for the Appellant was asked whether he wants to exercise that right or not. On behalf of the Defendant, it was stated that he elects to exercise the right of re-entry.
The learned Counsel for both the parties made an agreed submission to the effect that the Defendant/Appellant should put the Plaintiff/Respondent in vacant possession of the suit premises on or before 9th August 1979 and within six months thereafter the Plaintiff will reconstruct the premises at point ''X'' vide Ex. P-7 and put back the Defendant-Appellant into possession of the shop so reconstructed.
Accordingly the decree of ejectment is maintained only on the ground u/s 12(1)(h) of the Act subject to the right of re-entry of the Defendant-Appellant and it is further directed that the Plaintiff-Respondent will put the Defendant Appellant in possession of the suit premises after re-construction at point ''X'' shown in Ex. P-7 of the plan as agreed to vide para 17 of this judgment. In view of the divided success in this Court, the parties are directed to bear the costs as incurred, so far as costs of this Court are concerned.