Posted On by &filed under High Court, Madhya Pradesh High Court.


Madhya Pradesh High Court
Basant Singh And Another vs Roman Catholic Mission on 13 September, 2000
Equivalent citations: 2001 (2) MPHT 43
Author: S Srivastava
Bench: S Srivastava


ORDER

S.P. Srivastava, J.

1. The tenants/judgment-debtors/applicants who had filed an application under Order 9 Rule 13, CPC, seeking setting aside of the ex parte decree passed against them for their eviction from the premises in dispute under their tenancy and recovery of arrears of rent and damages for use and occupation, feeling aggrieved by the rejection of the said application by the Trial Court which order stands affirmed in appeal, they have now approached this Court by means of the present revision under Section 115, CPC, seeking redress and praying for the setting aside of both the orders.

2. I have heard the learned counsel for the tenants/judgment-debtors/ applicants as well as the learned counsel representing the landlord/decree-holder/respondent and have carefully perused the record relating to the proceedings of the original suit as well as the proceedings under Order 9 Rule 13, CPC, giving rise to this revision which had been summoned pursuant to the order passed by this Court.

3. The facts in brief shorn of details and which are necessary for the
disposal of this revision lie in a narrow compass: The suit giving rise to this revision had been filed on 30-9-1985. The plaintiff had alleged that the accommodation in dispute had been let out to Rasal Singh, after whose death, the tenancy rights had devolved upon Basant Singh, his son and Hari Singh, his nephew. The premises in dispute had been let out at a monthly rent of Rs. 3/-. The suit had been filed on the grounds envisaged under Section 12 (1) (a) and (e) of the Madhya Pradesh Accommodation Control Act, 1961. A composite notice terminating the tenancy and demanding the arrears of rent was claimed (o have been served on 30-5-1983. Arrears of rent for the past 3 years was claimed to have been not paid. The suit had been filed for the recovery of the rent due for the last 3 years and for the payment of rent, damages for use and occupation at the same rate pendente lite in future.

4. On 5-10-1985, the Trial Court had passed an order directing for the issue of summons requiring the plaintiff to deposit the requisite process fee within 3 days.

5. The office, however, reported on 9-5-1985, that the plaintiff had not deposited the process fee with the result that the summons could not be issued. On 2-4-1986, the Trial Court had passed an order that the summons be issued to the defendants “Bilawar Talvana” and registered post. The expression “Bilawar Talvana” as pointed out by the counsel for the parties refers to the issuance of summons without asking for a fresh process fee.

6. Pursuant to the aforesaid order, notices per registered post were issued on 24-4-1986. The requisite fee in this regard was paid by the plaintiff on 15-4-1986. The notices per registered post were issued to Basant Singh and Hari Singh. The office note indicates that two registered covers had been sent vide postal receipt Nos. 875 and 876 dated 24-4-1986.

7. The registered letter addressed to Hari Singh was returned back undelivered with an endorsement of the postman that the recourse to intimation distribution was taken for delivery of the aforesaid letter. There is an endorsement to the effect ‘NLC’ whereafter it had been returned to the sender.

8. The other registered letter which had been sent to Basant Singh was not returned to the sender.

9. The suit was taken up by the Trial Court on 30-4-1986. By that date, none of the registered letters had been received back. The Trial Court, therefore, passed an order to await the return of the letters and posted the case for 30-6-1986. On that date, the plaintiff moved an application under Order 5 Rule 20, CPC, praying that the permission be granted to effect the substituted service on the defendants by publication of the summons in the news paper. The Trial Court observed in its order passed on that date, that from a perusal of the record it appears that the notices/summons sent to the defendants by normal mode and by registered post had not been returned back after service. In the circumstances, the plaintiff was permitted to get the
notices/summons published in the news paper ‘Dainik Bhaskar’. On 22-2-1986, the plaintiff was directed to take the requisite steps in that regard.

10. The plaintiff, however, instead of getting the notices/summons published in the news paper ‘Dainik Bhaskar’ as directed by the Trial Court, got them published in the daily news paper “Aacharan”.

11. The matter was put up before the Trial Court on 22-8-1986. On this date, the Trial Court passed an order to the following effect:–

22&8&86

oknh }kjk Jh ds-,y-rksej ,M-

izfroknhx.k vuq-

izfroknhx.k dh rkfey t;sa izdk’ku nSfud lekpkj
i= vkpj.k esa fnukad 6&8&86 dks izdkf’kr gks pqdh gSA

izfroknhx.k dks dbZ ckj vkoktsa vxokbZ xbZ
mifLFkr ughaA bl le; 4-30 ct pqds gSA u gh izfroknhx.k Lo;a mifLFkr vk;s vkSj u
gh dksbZ vfHkHkk”kd mudh vksj ls mifLFkr gq;sA

vr% izfroknhx.k ds fo:) ,di{kh; fd;k tkrk gSA

izdj.k ,d i{kh; lk{k gsrq fnukad 4&9&86
is’k gksA

iape lh-ts-Dykl&2

12. The case had been posted on 4-9-1986, for ex parte evidence. But since 4-9-1986 was a holiday, it was taken up on 5-9-1986 and the plaintiff examined one witness in support of the plaint case and closed the evidence. The arguments were heard on 8-9-1986 which was the next date fixed and the judgment was delivered on 30-9-1986.

13. The Trial Court after considering the evidence and the materials on the record accepting the plaintiff’s case granted a decree as prayed for.

14. Thereafter, on 6-10-1986, the defendants Basant Singh and Hari Singh submitted an application under Order 9 Rule 13, CPC, praying for the setting aside of the ex parte decree.

15. It may be noticed that the aforesaid application did not bear the signatures of the applicants. It was signed by Shri K.K. Bhargava, their counsel who had presented the same. However, an affidavit of Basant Singh sworn on 6-10-1986 was filed in support of the aforesaid application. In Paragraph 2 thereof it was stated that the assertions made in Paragraphs 1 to 8 of the application filed under Order 9 Rule 13, CPC, were true to his knowledge and information.

16. In their application filed under Order 9 Rule 13, CPC, it had been, asserted that the defendants could come to know of the ex parte decree on 1-10-1986. On which date, the plaintiff himself had told them about the same. In Paragraph 4 of the application, it had been stated that on a perusal of the record relating to the suit it had come to the light of the defendants that they
had not been served with the summons in accordance with law and further that the notices/summons sent per registered post and the ordinary process had not been received back. The plaintiff had got the summons published in the daily news paper ‘Aacharan’ which was a small daily news paper and was not read by every citizen in the city. It was also stated that no postman or process server had come to them and they had not refused to receive the summons.

17. The aforesaid application was contensted by the plaintiff on various grounds denying the assertions made in the application. It was claimed that the defendants were having full knowledge of the proceeding and were deliberately absented themselves.

18. On 12-1-1991, the Trial Court directed the parties to lead evidence in support of their respective cases being of the view that in the absence of evidence, it would not be possible to decide the controversy raised in the application. The parties were, therefore, directed to keep their evidence ready on the next date fixed and in case they wanted to summon any witness, the requisite process fee, etc., be deposited on that date.

19. On 18-1-1991, the defendants examined Santosh Sharma as P.W. 1. Had Singh, one of the applicants examined himself as a witness on 23-1-1991. On 28-1-91 last opportunity was afforded to the applicants by the Trial Court to examine their remaining witnesses and fixed 30-1-1991, for the purpose. Gajendra Chaturvedi, an other witness of the defendants was examined on 30-1-1991 and the applicants closed their evidence.

20. The plaintiff/decree-holder examined one witness on 4-2-1991, and closed his evidence.

21. The Trial Court delivered the judgment on 31-3-1991. On which
date, the application was dismissed.

22. In his deposition, Hari Singh denied to have received the registered letter or service of notice/summons on him by ordinary process. He had also denied to have read the daily news paper ‘Aacharan’ stating that the publication of the said news paper had begun recently.

23. Gajendra Chaturvedi who was examined by the applicants had stated in his deposition that it was the plaintiff who had given the information regarding the ex parte decree between the parties. He however stated that he had no information about the notices having been issued by the Court to Hari Singh or Basant Singh or any information had been published in the news paper. He had also stated that he had no knowledge as to whether Basant Singh or Hari Singh had refused to receive the summons issued by the Court.

24. The plaintiff’s witness had stated that the registered letters had been posted by the Court. The intimation that the registered letter addressed to Hari Singh had been given to him by the postman and he proved the endorsement of the postman appeared on exhibit P-4. He had also stated that Hari Singh had refused to receive the letter. He had further stated that the publication had been duly got done and proved the news paper, exhibit P-1. He had categorically stated that the registered letters had been sent to both; Hari Singh
and Basant Singh. He had also denied the suggestion that the news paper ‘Aacharan’ has been recently published.

25. The Trial Court was of the view that the news paper ‘Aacharan’ had a circulation in the region where the applicants resided. The substituted service through publication was held to have been properly done. Placing reliance on the proviso to Order 9 Rule 13, CPC, the Trial Court coming to the conclusion that the notices were served on 9-8-1986, through publication, no case for condonation of delay had been made out and the application was liable to be dismissed as having been presented beyond the prescribed period of limitation.

26. The tenants/judgment-debtors thereafter challenged the order of the Trial Court rejecting their application for setting aside the ex parte decree in an appeal. The appeal was, however, dismissed. The Appellate Court on the consideration of the evidence and material on record came to the conclusion that the service of the summons by publication taking recourse to the mode provided under Order 5 Rule 20 of the Code of Civil Procedure was proper and justified and held the service of summons by publication to be sufficient. The fact that the publication was got done in a news paper other than the news paper referred to in the order dated 30-6-86 was found immaterial holding that the order for effecting service through publication was substantially complied with.

27. It may be noticed at this stage that the Trial Court itself, as is apparent from the order dated 22-8-86 that publication had been done in the news paper ‘Aacharan’ dated 6-8- 86 and had no objection to such publication and directed that suit shall proceed ex parte against the defendants which clearly indicated that the substituted service by publication in the news paper ‘Aacharan’ was acceptable to the Court.

28. The appellant Court endorsed the findings of the Trial Court and upholding the order passed by it had dismissed the appeal.

29. The learned counsel for the tenants-applicants has strenuously urged that on the facts established on record in the present case the Trial Court as well as the first Appellate Court had manifestly erred in holding the service of the summons on the defendants to be sufficient. The learned counsel in support of this submission placed strong reliance upon the observations made in the decision of Learned Single Judge of this Court in the case of Dhal Singh Kushal Singh Vs. Anandrao Kakde, reported in AIR 1960 MP 378. In the aforesaid decision this Court had taken into consideration the implications arising under the provisions contained in Order 5 Rule 20 and Rule 20-A, CPC. It may be useful to notice that so far as the present case is concerned the provisions contained in Order 5 Rule 20-A, CPC had no relevance as the aforesaid Rule itself was omitted by the Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1-2-1977.

30. In its decision in the case of Dhal Singh (supra) it was observed that Order 5 Rule 20, CPC before ordering substituted service the Court should be satisfied that a condition which it can be ordered exists i.e., the defendant
is keeping out of the way to avoid service or that for any other reason service cannot be effected in the ordinary way. While explaining the object behind Rule 20-A it was pointed out that often summons sent by a Court and received unserved caused considerable delay in the disposal of suits. Rule 20-A gave a discretion to a Court to order service by registered post whenever a summons issued to be served by ordinary process is returned unserved, for whatever reason. It was indicated that the said provision did not enable the Court to issue a summons by registered post in the first instance, nor did it so enable the Court before a summons issued to be served by ordinary process is returned unserved. It was emphasised that the condition precedent for the application of the said Rule was “where the summons is returned unserved”.

31. In the aforesaid decision, heavily relied upon by the learned counsel for the applicants, it had further been observed that where a summon is not served on the defendant personally but is deemed to be served under any of the provisions of Order 5 e.g., where a summons sent by registered post is returned with the endorsement “refused” or where a service is substituted under Rule 20, the defendant can succeed on showing either that the service was not in reality effected as reported, or that the condition pre-requisite for ordering that mode of service did not exist.

32. The contention urged and pressed by the learned counsel for the tenants-applicants is that in the present case the plaintiff had not taken steps to deposit the process-fee for effecting the service of summons through ordinary process. In such a circumstance, it is urged, there can be no occasion for the Trial Court to direct for effecting service of the summons through registered post.

33. In the aforesaid view of the matter it is urged that the failure of the plaintiff to take steps to get the summons served through ordinary process was more than sufficient to ignore the effect and the result of the service of summons through registered post or even through the mode prescribed under Order 5 Rule 20, CPC as recourse to the aforesaid modes could not be taken to service since the per-requisite condition of exhausting the ordinary mode of service had not been complied with.

34. The learned counsel for the tenants-applicants has in support of the above contention placed reliance on an other decision of the learned Single Judge of this Court in the case of Vidhyabai (Smt.) Vs. Santosh Kumar Rai, reported in 1994 (II) MPWN 112, wherein it was observed that Order 5, Rule 19, CPC specifically requires examination of the serving officer where a summons is returned under Rule 17, which lays down procedure in cases where defendant refuses to accept service, or cannot be found and it is only thereafter that the Court has to decide whether the case required simultaneous service of notices by post in addition to personal service as provided for under Order 5, Rule 9 (1) and the mode in that case such a procedure having not been followed, it was found that the Court was clearly wrong in directing issuance
of summons by post and proceeding ex parte on the basis of postal endorsement.

35. The learned counsel for the landlord-respondent had urged that in the facts and circumstances of the present case the observations made in the decision in the case of Dhal Singh (supra) could not come to the rescue of the applicants as the said decision had been rendered at a time when the provisions contained in Order 5 Rule 19-A was not there on the Statute-book and was brought into force w.e.f. 1-2-1977 with the enforcement of the Code of Civil Procedure (Amendment) Act, 1976.

36. So far as the decision in the case of Yidyabai (supra) is concerned, the learned counsel for the plaintiff has urged that even in that decision the provisions contained in Order 5, Rule 19-A, of the Code of Civil Procedure were not brought to the notice of the Court and implications arising thereunder were not all considered. It is further urged that the procedure adopted by the Trial Court to secure the service of the summons on the defendants was in accordance with law and the consequences flowing from the effect of the proceedings taken for ensuring the service of summons by registered post acknowledgment due or taking recourse to the mode prescribed under Order 5 Rule 20, CPC could not be ignored as urged by the counsel for the tenants.

37. The learned counsel for the landlord-respondent has tried to support the judgment and order passed by the Court below.

38. Taking into consideration the nature of the controversy raised in this revision it will be appropriate to refer the provisions contained in Order 5 Rule 19-A, CPC. The said Order 5 Rule 19-A is to the following effect :–

“R. 19-A. Simultaneous issue of summons for service by post in addition to personal service.– (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:

Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of summons.”

39. The provisions referred to hereinabove vest the Court with ample jurisdiction to issue summons to be served by registered post acknowledgment due addressed to the defendant or his agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain, in addition to and simultaneously with the issue of summons for service in the manner provided in Order 5 Rules 9 to 19 (both inclusive). In fact, the use of the expression “shall” as used in Order 5 Rule 19-A of the Civil Procedure Code makes it obligatory on the part of the Trial Court to direct the summons to be served by registered post acknowledgment due as indicated above providing however that nothing in the sub-rule shall require the Court to issue a summon for service by registered post where in the facts and circumstances of the case the Court considers it unnecessary.

40. In the present case, the Trial Court had not recorded any finding that the direction for issuance of the summons to be served by registered post acknowledgment due to the defendants was unnecessary.

41. It may further be noticed that the proviso to Order 5 Rule 19-A (2) of the Civil Procedure Code clearly envisages raising of a presumption in regard to the service of the summons duly sent by registered post acknowledgment due where the summons was properly addressed and prepaid and in such a case the Court is required to declare the summons to have been duly served on the defendant notwithstanding the fact that the acknowledgment has been lost or mislaid or for any other reason the same is not received by the Court within thirty days from the date of the issue of the summons.

42. The legislative intent underlying the provisions contained in Rule 19-A and casting a duty on the Trial Court to direct for the summons to be served by registered post acknowledgment due in addition to and simultaneously with the issue of summons for service in the ordinary course as provided under Order 5 Rule 9 to 19 (both inclusive) is to ensure that the service of summons is effected at the earliest. There may be a situation where the summons issued by registered post acknowledgment due are served before the effecting of service of the summons issued in the manner provided in Order 5 Rules 9 to 19 (both inclusive). The service of summons by registered post in such a case cannot be ignored and the Court will have to declare that the summons had been duly served on the defendant without waiting for the service of the summons issued in the manner provided in Order 5 Rules 9 to 19 (both inclusive).

43. It must be emphasised that the mode of service by registered post
acknowledgment due as contemplated under Order 5 Rule 19-A of the Civil Procedure Code is an additional and not an alternative mode. Further, once a declaration under sub-rule 2 of Rule 19-A of Order 5 of the Civil Procedure Code is made by the Court, the service by registered post on the defendant shall be deemed to be sufficient and in such a case if the defendant challenges that he did not either receive the notice or summons, which was not offered to him nor did he refuse the same, the onus will lie on him to prove the contrary.

44. In the case in hand, on 30-6-1986 the Trial Court, while disposing of the application filed by the plaintiff praying for permission to get the substituted service done by publication in a news paper, had observed that by that date the notice sent earlier by ordinary as well as registered post had not been received back. The summons per registered post acknowledgment due had been issued vide postal receipt Nos. 875 and 876 dated 24-4-1986. It appears that by 30-6-1986 none of the registered letters had been received back. It was in the aforesaid circumstances that finding that none of the aforesaid two registered letters had been received back either after service or without service, the permission to effect service by publication in the news paper had been granted.

45. In its order dated 22-8-1986, the Trial Court had referred to the publication of the notices in the news paper “Aacharan”. It was observed by the Trial Court that in spite of waiting for the defendants upto 4.30 p.m., none had appeared either personally or through counsel. It was thereafter that the suit was directed to proceed ex parte against the defendants.

46. As has already been noticed hereinabove, in the proceedings initiated on the basis of the application filed by the applicant under Order 9 Rule 13, CPC, the Trial Court had passed a specific order on 11-1-1991 directing the parties to lead evidence in support of their respective cases. In the said order, it was noticed that both the parties were prepared to lead evidence in support of their respective cases. In spite of the aforesaid direction, Basant Singh did not appear and no evidence whatsoever was led on his behalf which could in any manner rebut the presumption in regard to the service of the summons issued to him under registered post acknowledgment due. Hari Singh had examined himself as a witness but even in his deposition he confined his statement to himself alone asserting that he did not receive the registered letter and the same was not tendered to him. He had said nothing about the non-delivery or non-receipt of the registered letter acknowledgment due sent to Basant Singh. In this connection, it may further be noticed that there was no dispute about the registered letters having been sent at the correct addresses.

47. From the copy of the judgment and order passed by this Court dated 8-2-1977 which is on the record, disposing of Second Appeal No. 309/70, it is apparent that in the suit giving rise to the said appeal which had been filed by the plaintiff-decree- holder against Basant Singh and Hari Singh the address of Basant Singh was the same at which the summons were sent by registered
post acknowledgment due on 24-4-86. Even in the news paper wherein the summons had been published the address of Basant Singh was the same at which the notice under registered cover had been sent. In the plaint, the address of Basant Singh was the same at which the registered letter had been sent. It is, therefore, obvious that the registered letter with acknowledgment due in question had been sent at the correct address of Basant Singh.

48. In the circumstances, a strong presumption in regard to the service of summons on Basant Singh became available to the plaintiffs which presumption could not be taken to have been rebutted in any manner.

49. In the present case, the status of both the defendants was that of joint tenants. In its decision in the case of Kanji Manji Vs. The Trustees of the Port of Bombay, reported in AIR 1963 SC 468, the Apex Court had observed that once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient.

50. In Paragraphs 1 and 2 of the plaint, the plaintiff had clearly asserted that Rasal Singh was the original tenant of the premises in dispute and after his death the tenancy right had devolved upon the present defendants.

51. In its decision in the case of H.C. Pandey Vs. G.C. Paul, reported in AIR 1989 SC 1470, it had been observed by the Apex Court that in case of a single tenancy which devolves upon several persons, the status of such persons in the absence of any division of the premises or of the rent payable therefor continues to be that of joint tenants. In the present case, it was a single tenancy in favour of the two defendants and the status of the defendants could not be more than that of joint tenants.

52. In the facts and circumstances as noticed hereinabove, the service of summons on one of the joint tenants Basant Singh was more than sufficient. In the aforesaid view of the matter, the service of the summons on Basant Singh had to be taken as due service on the other joint tenant as well. The other joint tenant had therefore to be imputed with the knowledge of the date fixed for his appearance in the suit.

53. As has already been noticed hereinabove, the second proviso to Order 9 Rule 13, CPC clearly mandates that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.

54. In the present case, the Trial Court for cogent reasons had recorded its satisfaction that the defendants had notice of the date of hearing and they had sufficient time to appear and answer the plaintiff’s claim.

55. The aforesaid finding has been upheld by the first Appellate Court.

56. Considering the totality of the circumstances, including the facts apparent on the face of the record referred to hereinabove, no justifiable ground can be said to have been made out for any interference by this Court in the ultimate decision impugned in the present proceedings while exercising
the limited revisional jurisdiction envisaged under Section 115 of the Civil Procedure Code.

57. During the pendency of this revision, an application under Section 13 (6) of the M.P. Accommodation Control Act for striking out the defence of the detendants/judgment-debtors against eviction was filed on 21-8-2000.

58. In the aforesaid application, it has been asserted that the tenant-revisionists had not paid the amount calculated by the Trial Court while passing the decree for eviction and had further not taken any step to make the deposits in the manner as required under the provisions of Section 13 (1) of the aforesaid Act. The said application was supported by an affidavit of Fr. A. David, the power of attorney holder of the plaintiff. In the affidavit, it had been stated that from the first stage to revisional stage, defaults had been committed by the tenants and they had not complied with the provisions contained in Section 13(1) of the Act.

59. A reply to the aforesaid application supported by an affidavit of Basant Singh was filed by the tenants on 4-9-2000. It was asserted by the tenants that the revisionists had already deposited not only the entire rent but an extra amount of money covering the rent for the further period of 100 months. In Paragraph 3 of the reply, the tenant furnished the details showing that on 18-4-1991 and amount of Rs. 261/- had been deposited representing the rent for the period of 87 months. The next deposit was made on 11-3-1992, which was of an amount of Rs. 72/- representing the rent for a period of 24 months. Thereafter on 16-11-1992, an amount of Rs. 36/- was deposited representing the rent for the period of 12 months. Further on 10-3-1995, an amount of Rs. 108/- was deposited representing the period 36 months. Again on 11-12-1996, an amount of Rs. 108/- was deposited representing the rent for a period of 36 months and lastly on 3-5-2000 an amount of Rs. 360/- was deposited representing the rent for a period of 120 months.

60. The details furnished in Paragraph 3 of the reply which speak for themselves indicated that the tenants were acting in a manner as if Section 13 of the M.P. Accommodation Control Act did not exist at all and it was open to them to deposit any amount towards rent at any time which suited them.

61. The learned counsel for the tenants has however urged that since the present revision arises out of the proceedings under Order 9 Rule 13, CPC and the grounds agitated in the revision are in respect of the non-compliance of the mandatory provisions of the Civil Procedure Code, the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act cannot come to the rescue of the landlord as these provisions cannot be taken to be attracted. It has also been urged that since the entire amount has been deposited, the defaults in deposit are liable to be condoned.

62. It has been urged by the learned counsel for the applicants in the aforesaid connection that the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act as amended clearly include within their ambit any proceeding by a tenant against any decree or order for his eviction.

In such a case, it is pointed out that the tenant is bound to comply with the requirement of the provisions of Section 13 (1) of the Act within one month of the service of the notice of the appeal or within one month of the institution of appeal or any other proceeding by the tenant, as the case may be, or within such further lime as the Court may on an application made to it allow in this behalf. The requirement which has to be complied with by the tenant even during the pendency of the appeal is to deposit in the Court or pay to the landlord the 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 upto the end of the month previous to that in which the deposit or payment is made and shall continue to deposit or pay month by month the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the appeal or proceeding, as the case may be.

63. The provisions contained in Section 13 (6) of the aforesaid Act stipulate that the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit, appeal or proceedings, as the case may be.

64. The question as to whether the provisions of Section 13 (6) of the M.P. Accommodation Control Act, 1961 are applicable to appeals was considered in detail in the decision of this Court in the case of Rajesh Om Prakash Vs. Mullo and others, reported in 2000(3) M.P.H.T. 520 = 2000(2) MPLJ 445, and it was held that the tenant is required to deposit the monthly rent during the’ pendency of the appeal.

65. In fact, it is the suit which is to be taken as pending in the shape of the appeal filed under Section 96 of the Code of Civil Procedure. Even a revision is the continuation of the proceedings. The legislative intent underlying the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act as it stood amended w.e.f. 16-8-1983 is very much clear. The aforesaid provision casts a statutory liability on the tenant, who is a respondent in such an appeal to comply with the conditions stipulated in Section 13 (1) of the Act within one month of the service of the notice of the appeal. The failure to comply with the requirements envisaged under Section 13 (1) of the Act in the event of a pending appeal or revision entails serious consequences vesting the Court of appeal or revision with ample jurisdiction to strike out the defence put in by the tenant against his eviction and proceed with the hearing of the appeal or revision.

66. I must hasten to add that the provisions contained in Section 13 (6) of the Act vest the Appellate Court or the Revisional Court with a discretionary jurisdiction. In case, sufficient ground has been made out for condoning any default in making the deposits as envisaged under Section 13 (1) of the Act, the Appellate Court or the Revisional Court could refuse to strike out the defence against eviction and proceed to hear the appeal or revision on merits of the defence put in against eviction. The discretion of course has to be exercised not in an arbitrary manner but on sound judicial principles
keeping in mind that though M.P. Accommodation Control Act is a beneficent piece of legislation to protect the interest of the tenant sufficient care has been taken under the provisions of the Act to protect the interest of the landlord as well.

67. Considering the facts and circumstances of the present case, since the order of the Trial Court is being upheld on other grounds, I am of the view that it is wholly unnecessary to go into the question relating to the striking out of the defence of the tenants against their eviction.

68. In view of my conclusions indicated hereinabove, this revision deserves to be and is hereby dismissed.

69. There shall however be no order as to costs.

70. Civil Revision dismissed.


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