JUDGMENT
K.L. Issrani, J.
1. This is a second appeal against the Judgment and decree dated 12-7-1988, passed by the Additional Judge to the Court of District Judge, Rajnandgaon, in Civil Appeal No. 8-A of 1984, arising out of the Judgment and decree dated 5-5-1983, passed by the Second Civil Judge Class II, Rajnandgaon, in Civil Suit No. 68-A of 1980.
2. The appellant/plaintiff had filed a civil suit for ejectment against and original tenant Jeetmal amongst other grounds under Section 12(1)(a) and (e) of M. P. Accommodation Control Act, 1961 (hereinafter called the ‘Act’). The case of the appellant/plaintiff was that though she is required to live at Bhilai on account of service of her husband, her husband is not able to get allotment of any accommodation at Bhilai. She, therefore, wants to reside in her own house at Rajnandgaon, wherefrom her husband will up down for service at Bhilai. She also claimed arrears of rent at Rs. 25/- per month from July, 1979.
3. In defence, the defendant denied the requirement of the plaintiff/appellant to be bona fide. Regarding arrears of rent, he submitted that since the defendant demanded receipt of the rent paid but was not given by the plaintiff, the amount of rent demanded could not be paid. The other reason given was that the amount was spent in repairs which was to be adjusted by the plaintiff. Since it was not adjusted, the balance amount was not paid to the plaintiff.
4. The suit was decreed by the trial Court under Section 12(1)(a) and (e) of the Act. On appeal by the original defendant/tenant Jeetmal, the lower appellate Court has reversed the findings of the trial Court and dismissed the suit. Before the first appellate Court, the original tenant Jeetmal expired and his legal representatives, the present respondents, were brought on record. Hence this second appeal.
5. This Court, while admitting the appeal, framed the following substantial questions of law :
“(1) Whether in the facts and circumstances of the case, the first appellate Court erred in law in setting aside the decree for eviction passed by the trial Court in favour of the plaintiff-appellant and in giving finding that the plaintiff-appellant was not entitled to evict the defendants-respondents from the suit accommodation on the grounds specified in Clauses (a) and (f) of Sub-section (1) of Section 12, of the M. P. Accommodation Control Act, 1961?
(2) Whether the appeal that had been filed by the deceased-defendant Jeetmal before the first appellate Court had abated and the said abatement having become final, the decree for eviction passed by the trial Court in favour of the plaintiff-appellant could not be set aside by the first appellate Court?”
6. Regarding the ground under Section 12(1)(a) of the Act, as shown above, admittedly, the arrears of rent were not paid to the plaintiff/appellant even after notice of demand Ex. P-17. The amount was also not deposited in Court as required under Section 13(1) of the Act, even after the order of the trial Court dated 19-9-1981 on deciding the dispute under Section 13(2) of the Act. P. W. 3 R.L. Mishra, the Nazir of the Court, was examined to prove the deposits and the manner of deposit. According to him, on 5-10-1981, the defendant had deposited an amount of Rs. 275/-. On 17-10-1981, the defendant had deposited Rs. 300/- and so also on 18-10-1982, the defendant had deposited an amount of Rs. 300/-. Further, an amount of Rs. 75/- was deposited on 17-1-1983 and Rs. 25/- on 16-2-1983. Thereafter, nothing was deposited. The Judgment of the trial Court was passed on 5-5-1983. This witness was not cross-examined by the defendant. According to the plaintiff-appellant, no amount was deposited before the lower appellate Court also. But the counsel for the respondents submits that the amount was deposited before the lower appellate Court.
7. To avoid the decree under Section 12(1)(a) of the Act, it is necessary that the tenant should deposit the arrears of rent as per Sub-section (1) of Section 13 of the Act. The requirement of Section 13 is that the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an 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 thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent of that rate till the decision of the suit, appeal or proceeding; as the case may be. In case of any dispute the Court is required to decide the same under Sub-section (2) of Section 13 of the Act. In the present case, there was no dispute regarding rate of rent. The only dispute was regarding the quantum of rent payable by the tenant, which dispute was resolved on 19-9-1981. Thereafter, it was the duty of the tenant to have not only to deposit the arrears of rent but to continue to deposit or pay month by month by the 15th of each succeeding month to avoid the order of eviction under Clause (a) of Section 12(1) and earn benefit under Sub-section (3) of Section 12 of the Act. Here admittedly, the second limb of Section 13(1) of the Act has not been complied with by the tenant. Even if the rent is taken to be deposited in the appellate Court, it was for the tenant to have shown that such deposit was according to Section 13(1) of the Act. It has been held in Ganpat v. Sashikant. AIR 1978 SC 955. as under :
” If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction. But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlord’s claim for eviction. If however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. Section 12(3)(b) does not create any discretionary jurisdiction in the Court.”
8. Therefore, there was no discretion left to the Court below except to have passed a decree under Section 12(1)(a) of the Act. In Shyamcharan v. Dharamdas. AIR 1980 SC 587. it has been held that the Court has discretion to grant extension of time and in such a case the tenant is not liable to eviction if the time is extended. But in the present case, no such application was filed for extension of time. Similar view has been taken in Ram Murti v. Bhola Nath. AIR 1984 SC 1392 to the effect that the Court has power to condone the default on the part of the tenant in making payment or deposit of future rent or to extend time for such payment or deposit. But this case will not save the tenant in the present case. In M/s. Rubber House v. M/s. E. N. Industries Pvt. Ltd., AIR 1989 SC 1160, it has been held that no statutory duty is cast on the Court to determine and calculate the arrears of rent. On the contrary, the tenant is required to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service. As per Section 13(1) of the Act, it was the duty of the tenant to have deposited all the admitted arrears of rent within one month of the service of summons, which he did not do. He also did not deposit the future rent month by month by the 15th of each succeeding month. Having not done so, he cannot earn the benefit given under Sub-section (3) of Section 12 of the Act, which reads as under :
” No order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13.”
Therefore, I am of the opinion that the ground under Section 12(1 )(a) of the Act is made out and the respondents are liable to be ejected on this ground also.
9. Regarding the bona fide requirement under Clause (e) of Sub-section (1) of Section 12 of the Act, this Court, while framing the substantial question No. (1) has mentioned “Clauses (a) and (f)” instead of “Clauses (a) and (e)”. This seems to be a typing mistake. In plaint paragraph No. 3, it has been specifically pleaded that the house was let out on rent for residential purposes. In paragraph No. 3 of the written statement, the averments in para 3 of the plaint have been admitted. But in the last line it is mentioned that the house was taken on rent for business purpose. In notice Ex. P-17, in para 2 it was stated that the house was taken on rent for residential purposes. This notice was received by the tenant. The acknowledgment receipt is Ex. P-18. It was not replied to. The admissions made by the defendant cannot be retracted. Even otherwise, no evidence is led by the tenant to show that the premises were let out for non-residential purposes. Nothing is stated in his deposition also to this effect. On the contrary, in cross-examination, the tenant Jeetmal (D. W. 1) has admitted that it is not mentioned in Ex. P-l, the rent note that the house was taken for non-residential purposes. In the same paragraph, he admits that it (the house) is not fit for shop but is fit for residential purpose. He further admits that he has already vacated and closed the shop for the last 7-8 years. He was examined on 26-2-1983. That is why it seems that this point was not raised before the lower appellate Court. The trial Court has decreed the suit of the appellant under Section 12(1)(a) and (e) of the Act. In paragraph No. 6 of the plaint, the plaintiff has pleaded that at present she is living with her husband at Bhilai. Her husband is serving in Bhilai Steel Plant. No house has been allotted to him by the Bhilai Steel Plant. They are living in rented house which they are frequently required to vacate. Now they want to live in their own house at Rajnandgaon.
10. In reply to para 6 of the plaint, the defendant in para 6 of his written statement submitted that since the plaintiff is residing with her husband at Bhilai, she does not need the house at Rajnandgaon. P.W.1 Abdul Bashir, husband and attorney of the plaintiff has submitted that the plaintiff has no other house except the suit house in the city of Rajnandgaon. This witness has not been cross-examined on the point of bona fide requirement. The trial Court, therefore, had rightly decreed the suit of the plaintiff. The appellate Court was wrong in reversing the findings on the ground that since the plaintiff has agreed to sell her house to the tenant/defendant Jeetmal, the requirement cannot be said to be bona fide. The reasonings given by the lower appellate Court in para 9 of the Judgment are not sound. The defendant in this case has not acted upon the agreement to purchase. No suit for specific performance of the contract was filed by the tenant. Even the demand of Rs. 3,000/- claimed by him towards rent was negatived by the trial Court while deciding the dispute under Section 13(2) of the Act, which was also not challenged. The appellate Court was, therefore, not right in reversing the findings of bona fide requirement of the plaintiff-appellant. It can also not be the ground for refusing the decree that since she has shifted to Bhilai, she will not be requiring the suit house. She (the plaintiff) has led evidence supported with other oral and documentary evidence for requirement of the house for her own residence. There is no bar under the law that she should be directed not to reside at Rajnandgaon when she wants to live therein. Because of the fact that her husband has not been allotted any accommodation by the Bhilai, Steel Plant, now they have determined to live at Rajnandgaon, wherefrom her husband will updown for his duties at Bhilai, which is not so far which can be said to be impracticable. The question No. (1) framed by this Court is, therefore, answered in affirmative. Therefore, the decree passed by the lower appellate Court is set aside and that of the trial Court is affirmed.
11. Regarding question No. (2), the learned counsel for the appellant has led this Court through various ordersheets and documents regarding the fact that the application for substitution of the legal representatives of the tenant/appellant before the lower appellate Court was not within time and the appeal had already abated. Since the question No. (1) has been answered in favour of the plaintiff/appellant, it is not necessary to enter into that controversy because it will lead to the remand of the case again.
12. Consequently, the appeal is allowed with costs. Counsel’s fee as per schedule.