RAMGOPAL SITARAM Vs. POORANMAL GOYAL

JUDGEMENT

(1.) THE applicant-defendant has preferred this civil revision under section 115 of the Code of Civil Procedure against the order passed by Fourth civil Judge Class II, Gwalior in case No. 144-/a/77 passed on 8-11-1977.

(2.) THE non-applicant brought a suit against the applicant in the Court of fourth Civil Judge Class II, Gwalior for eviction underthe provisions of sections 12 (1) (a)and 1. 2 (1) (f) of the M. P. Accommodation Control Act, 1961 (hereinafter called as 'act' ). The landlord alleged that the applicant tenant pays ? Rs. 30/- per month towards the rent. He is in arrears of rent from 1-2-1977 which was not paid by the tenant in spite of several demands and thus he is a defaulter. The applicant-defendant denied the claim preferred by the landlord and maintained that as the water supply has been cut off Rs. 3/- should be deducted from the agreed rent and thus he raised a dispute under section 13 (2) of the Act. Meanwhile, he deposited the rent to save his skin from the ground contained in section 12 (1) (a)of the Act. The trial Court relied upon the case of Roopchand, 1976 MPWN Note 81, held that the tenant by depositing the arrears of rent has waived his objection raised in the written statement i. e. the dispute with regard to the amount of rent payable as described in section 13 (2) of the Act.

(3.) THE applicant tenant has invoked the revisional jurisdiction of this court against this impugned order. This Court in Roopchand (supra) held that having deposited the entire arrears of rent, the dispute if any, raised earlier by the defendant, was waived. So, there was no question of fixing any provisional rent. This Court in Roopchand based this ratio drawn from the case of Chhogalal, 1975 JLJ 779. I anxiously examined the case of Chhogalal and found to my surprise that in that case it was only held that operation of sub-section (1) of section 13 of the Act, 1961 is arrested when a dispute as is referred to in sub-section (2) is raised by the defendant tenant in his written statement and it is not necessary that he should make an application inviting the attention of the Court to the specific dispute and asking the Court to fix the provisional rent. In Chhogalal (supra) it was not the proposition what has been reported in Roopchand (supra ). This Court again in the case of Mani Shankar Dube, 1980 2 MPWN 49, held that once a dispute is raised under section 13 (2) in the written statement by the tenant it shall not be deemed to have been waived and there can be no waiver of a right under a statute. I would, therefore, prefer to place reliance upon Mani Shankar Dube (supra)rather than Roopchand (supra) reason being my this view gets support from a privy Council judgment, Maritime Electric Co. Ltd. , AIR 1937 PC 114. In this case, their Lordships of the Privy Council have held :-