CHHOGLAL Vs. IDOL OF BHAGWAN SHRI SATYANARAYAN

JUDGEMENT

(1.) This appeal was first heard by Bachawat, J. sitting singly. He found difficulty in reconciling two Division Bench decisions of this Court on the construction of Section 13 of the Madhya Pradesh Accommo-dation Control Act, 1961. These Division Bench cases are : Firm Ganeshram Harivilas v. Ramchandra 1970 MPTJ 902 = (AIR 1971 Madh Pra 104) and Jivrambhai v. Amarsingh 1972 MPTJ 785 = (AIR 1973 Madh Pra 165). The learned Judge, therefore referred to a Division Bench the following question of law;

(2.) The material facts pertaining to the question referred to us are that the defendant-appellant is a tenant of the plaintiff-respondent and is in occupation in that capacity of a part of house No. 716 situated at Neemuch. The suit giving rise to this appeal was instituted on 8th July 1963 by the respondent for eviction of the appellant and for arrears of rent. The appellant's ejectment was sought on various grounds one of them being under Section 12 (1) (a) of the Act. The respondent's case was that the appellant was a tenant on a monthly rent of Rs. 5/-, and that there was failure on his part to pay the arrears of rent within two months from the service of the notice of demand. The suit was decreed ex parte on 13th December 1963. On the appellant's application that he was not served with the summons of the suit, the ex parte decree was set aside. The appellant, soon thereafter, filed his written statement on 2nd April 1964. In his written statement the appellant pleaded that the rent of the house to begin with was Rs. 2/- per month and it was first enhanced to Rs. 2/8/- per month and then to Rs. 3/- per month and that there was never any agreement to pay the rent of Rs. 5/- per month. It was also pleaded that the appellant on receiving notice sent all the arrears at the rate of Rs. 3/- Per month, and that some amount of rent was deposited in the Court of the Rent Controller. The appellant deposited a sum of Rs. 132/- as arrears, of rent, calculated at the rate of Rs. 3/- per month, on the very date he filed his written statement and in that context pleaded that as all the arrears were deposited within one month as required by Section 13 (1) of the Act, the suit was liable to be dismissed. The trial Court did not fix any reasonable provisional rent as required by Section 18 (2) of the Act, The appellant continued to deposit rent at the rate of Rs. 3/- per month during the pendency of the suit,

(3.) The trial Court in its final judgment came to the conclusion that the rent of the house was Rs. 5/- per month and not Rs. 3/- per month as alleged by the appellant and that the appellant was liable to eviction under Section 12 (1) (a) of the Act. In appeal the appellate Court agreed with the finding that the rent was Rs. 5/- per month and that as the appellant tendered arrears of rent after notice of demand at the rate of Rs. 3/- per month and not at the rate of Rs. 5/per month, the ground under Section 12 (1) (a) was made out. The appellate Court, however, held that the appellant by depositing the arrears of rent at the rate of Rs. 3/- per month and by continuing to deposit rent at that rate during the pendency of the suit in the trial Court complied will Section 13 of the Act in so far as that Court was concerned. In this context it was observed that when an ex parte decree is set aside on the ground of non-service of summons, "the service of the writ of summons" within the meaning of Section 13 (1) cannot be held to have taken place earlier to the date when the ex parte decree is set aside. But the appellate Court further held that the appellant by failing to deposit rent in that Court during the pendency of appeal was liable to eviction and was not entitled to protection under Section 12 (3) or Section 13 (5) of the Act. In this view of the matter, the decree of eviction passed by the trial Court was confirmed. It is against the decree of the appellate Court that the appellant filed this second appeal.