JUDGMENT
R.C. Lahoti, J.
1. The tenant/defendant has filed the second appeal feeling aggrieved by the judgments and decrees of the two courts below directing his ejectment from the suit premises on the grounds available to the plaintiff/landlords under clauses (a) and (c) of sub-section (1) of Section 12 of the M. P. Accommodation Control Act, 1961 (hereinafter, ‘the Act’, for short). The two courts below have found the tenant to be defaulter, also guilty of committing an act injurious to the interests of the landlords by denying the latter’s title in the suit property.
2. There has been an earlier round of litigation between the parties. The tenant/appellant had committed default in payment of rent. Suit for ejectment and recovery of arrears was decreed by the two courts below. The tenant filed a second appeal registered as S.A. No. 182/1974, which was disposed of by this Court on 23-4-1980. The tenant was held to be a tenant in the suit premises. However, the suit for ejectment based solely on the ground of tenant’s default in clearing the arrears in spite of the service of a demand-cum-quit notice was held to be premature, as having been filed before the expiry of the statutory period of two months. On this ground alone the appeal was allowed and the suit for ejectment was directed to be dismissed.
3. The two courts below have concurrently found the appellant to be a tenant in the suit premises at a monthly rent of Rs. 4/-. It has also been found that the tenant has been in arrears since 1-10-1977 which arrears he failed to clear in spite of a demand-cum-quit notice which though tendered was refused by the tenant on 23-8-1980. Not only these findings are those of facts, immune from challenge in second appeal; no challenge has been laid to these findings on behalf of the tenant/appellant during the course of hearing.
4. No substantial question of law was framed by this Court while admitting the appeal for final hearing and noticing the landlord/respondents. However at the hearing, the learned counsel for the parties have directed their submissions on the following substantial questions of law :
(1) Whether the tenant/appellant can still be allowed opportunity of clearing arrears and thereby, earn protection from eviction under Section 12(3) of the Act ?
(2) Whether the tenant/appellant can be allowed to withdraw from the denial of landlords’ title earlier made by him and if so, whether it could have the effect of wiping out the cause of action under Section 12(l)(c) of the Act?
Question No. (1) :-
5. Not only the tenant/appellant had remained a defaulter ever since 1-10-1977 until 23-8-1980 when demand-cum-quit notice was issued to him, he had continued to be in default even on 17- 11-1980 when the suit was filed. It was open to the tenant to have made a deposit and thereafter continue to make deposits of rent falling in arrears month by month consistently with the provisions of Section 13 of the Act. If at all the provisions of Section 13 would have been complied with, the tenant would have earned protection from eviction under Section 12(3) of the Act. Far from complying with the provisions of Section 13 of the Act and making an attempt at explaining the reasons which might have contributed to the earlier default, the tenant with impunity chose to throw a challenge to and thereby dispute the title of the landlords in the suit accommodation. The tenant’s pleas have been found to be false by the two courts below. He has been found to be a tenant of the plaintiff/landlords holding the premises at a meagre monthly rent of Rs. 4/-. Till this day it is not the case of the tenant/appellant that he has mended and reconsidered himself with better sense having dawned upon him and that he having cleared all the arrears of rent was interested in seeking indulgence of the Court so as to protect himself from eviction.
6. As the scheme of the Act shows a tenant can- make a call to liberal conscience of the Court under Section 12(3) of the Act only on complying with the provisions of Section 13 of the Act. That has not been done. In Subhash Chaturvedi v. Hukum Chand Agarwal, 1991 (2) M.P.J.R. 333, this Court upon an analysis of all the relevant provisions of the Act has held that a tenant/defendant not admitting himself to be tenant of the landlord/plaintiff is not entitled to take the benefit of Section 12(3) of the Act though the suit for ejectment may be dismissed ultimately by the Court if it may find that the landlord-tenant relationship between the parties was not made out.
7. For the foregoing reasons it is held that the question of affording the tenant/appellant a mere paper opportunity of still depositing all the arrears of rent, at this belated stage of final hearing in second appeal and then extending him the benefit of Section 12(3) of the Act does not arise.
Question No. (2) :-
8. An outrageous denial of the plaintiff/landlords’ title by the tenant/defendant is found to have been made not only in the earlier round of litigation, but also persisted in, in the written statement filed in the present suit. The tenant having lost from the two courts below filed this second appeal on 10-9-1986. On 4-2-1987 an application (LA. No. 3) was filed seeking an amendment in the written statement whereby the tenant proposed to delete those pleadings from the written statement which had the effect of denying the title of the landlord/plaintiffs. The prayer for amendment has been vehemently opposed on behalf of the plaintiff/landlords alleging that the amendment proposed was liable to be rejected as being highly belated, actuated by mala fides and attempting at dislodging the plaintiff/landlords from the valuable right accrued to them in the shape of the decree of the two courts below.
9. In the opinion of this Court the opposition offered is well merited. The denial of title was unjust and devoid of any merit. It was persisted in throughout the earlier round of litigation. The plaintiff/landlords were driven to the necessity of filing second round of litigation. The tenant/defendant did not learn any lesson during the long time spent in proceedings before the courts below. Now the idea of the tenant is to deprive the plaintiff/landlords of the relief of ejectment secured by them after contest tooth and nail. But for the denial of title accompanied by recalcitrant attitude of the tenant, the landlords would not have been compelled to involve themselves in long drawn litigation. The proposed amendment belatedly moved by the tenant is nothing but a somersault completely changing the nature of the defence and is certainly actuated by mala fides. Such an amendment cannot be allowed. LA. No. 3 is, therefore, rejected.
10. Moreover the sin which the tenant/appellant has committed, would not be wiped out in spite of the proposed amendment. Once the tenant has incurred the liability for ejectment under clause (c) of Section 12(1) of the Act merely because he choses to withdraw the denial belatedly, the cause of action accrued to the landlord/plaintiffs would not be wiped out in the absence of there being a specific provision to that effect in the Act. Reference may be had to a recent pronouncement of this Court in Navalmal v. Laxmansingh, 1991 MPLJ 812 = 1991-1 MPJR 256, wherein on a review of the available law on the point, taking light from the law laid down by the Supreme Court and the underlying scheme of the provisions of the Act, this Court has held that the tenant once having incurred liability for ejectment on account of bar against suit for ejectment provided by opening clause of Section 12(1) of the Act having been lifted on account of a wrong on the part of the tenant, a subsequent resiling by the tenant would not protect him from ejectment unless and until there be a provision in the Act itself to that effect. This Court has said in so many words, placing reliance on the law laid down in Prabhakaran Nayar’s case, AIR 1987 SC 2117, that the Court cannot devise relaxations and protections if they were not provided by the Legislature.
11. For the foregoing reasons, the appeal is held liable to be dismissed and is dismissed accordingly. The judgments and decrees of the courts below are confirmed. The defendant/appellant is directed to bear his own costs and pay that of the plaintiff/respondents throughout. Counsel’s fee as per schedule, if precertified.
12. In spite of the appeal having been dismissed, the tenant/appellant deserves to be allowed a breathing time for vacating the suit premises in view of the long time for which he has remained in occupation of the same. It is, therefore, directed that the decree for ejectment shall not be available for execution until 31-3-1993 subject to the appellant filing an undertaking on affidavit on or before 30-11-1992, to the effect that on or before 31-3-1993 he shall hand over peaceful vacant possession of the suit premises to the plaintiff/landlords and in between shall not induct anyone else in the said premises nor part with possession in favour of anyone else;, he shall deposit the entire money part of the decree including costs and the arrears of re at uptodate on or before 30-11-1992 with the Executing Court and shah, thereafter, continue to pay to the landlords or deposit with the Executing Court rent falling due month by month by the 15th day of that month. Failing the filing of the undertaking on affidavit or in the event of breach of the terms abovesaid, the decree for ejectment shall be available for execution forthwith.