SUSHILA SHRIVASTAVA Vs. NAFEES AHAMED

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff/appellant being aggrieved by the judgment and decree passed by the two Courts below. The suit filed by the plaintiff seeking ejectment of the defendant/tenant on the ground of arrears of rent and requirement of the plaintiff for residence has been dismissed. The suit was with respect to house No. 255, Word No. 16, Shinde Ke Chhawani, Lashkar, Gwalior. The plaintiff alleged that defendant was in arrears of rent to the extent of Rs. 588/-. Rate of rent was Rs. 50/- per month. Tenancy was oral and commenced from the first date of the month. The plaintiff obtained the house in partition with his father. After the death of the father, plaintiff has been realising the rent. The rent was due from August, 1983 which was not paid in spite of the notice. The plaintiff acquired the house for the purpose of residence. The plaintiff was residing in the said house by paying rent at the rate of Rs. 50/- per month as tenant. The defendant did not pay the rent within two months of the service of the notice nor handed over the possession, hence the suit was filed. The defendant filed the written statement and denied the plaint allegations and contended that he was not inducted as a tenant by Vishanswarup. He is occupying the suit house at the rate of Rs. 26/- per month. The factum of partition has also been denied. Vishanswarup has however released (realised ?) the rent in December, 1985. Plaintiff does not require the accommodation for residence. The defendant has spent the amount in repair work, of Rs. 3,500/- which he was entitled to get adjusted in the rent. Vishanswarup has filed the suit for requirement which was dismissed on 13.2.1976. Hence mode of partition was resorted to in order to get the defendant evicted from the suit house. Relationship of landlord and tenant was also disputed by the defendant.

(2.) TRIAL Court came to the conclusion that defendant is occupying the suit premises by paying rent at the rate of Rs. 28/- per month. Trial Court dismissed the suit and the Appellate court affirmed the dismissal of the suit. However, appellate Court came to the conclusion that rent was due to be paid from August 1, 1983. Dispute under Section 13(2) of the M.P. Accommodation Control Act was raised which was determined by the trial Court on 10.3.1987 by which it was ordered that rent from October, 1985 be deposited within 20 days and the dispute about the payment of rent from August, 1983 shall be decided at the time of the decision of the case on merits. The Appellate Court while deciding the case on merits has held that defendant is in arrears from August, 1983 and accordingly passed the decree of recovery of rent.

(3.) LEARNED counsel appearing for the respondent strenuously submitted that it is a case where there was default in depositing the rent from 1.7.1994 to November, 1994 but it cannot be said to be such so as to pass the decree of ejectment under Section 12(1)(a) of the M.P. Accommodation Control Act as the rent has been deposited subsequently on 10.1.1995 for the said period. He submitted that there is yet another default about the same due to the mistake of calculation committed by the defendant as the plaintiff has claimed an amount of Rs. 588/- in the plaint as arrears of rent. Amount was deposited on 12.4.1999 on coming to know about the pendency of the present appeal whereas amount of Rs. 728/- ought to have been deposited as per the direction of the first Appellate Court. The application for condonation of delay based on this part of the default has been filed pointing out that it was the mistake of calculation and amount of Rs. 140/- has been deposited on coming to know of it. After hearing of the appeal was over on 13.10.2000, as the application for condonation of delay was moved along with the statement, case was posted for rehearing on 14.10.2000 and parties were heard again.