RATANLAL MAHESHWARI Vs. HARISHANKAR SHARMA

JUDGEMENT

(1.) THIS is defendants' second appeal under section 100, CPC assailing the judgment and decree passed by the first appellate Court in decreeing the suit filed by the plaintiff/respondent on the ground contemplated under section 12 (1) (a) of the M.P. Accommodation Control Act.

(2.) PLAINTIFF /respondent filed the suit in question inter alia contending that the defendants are in arrears of rent, they are not paying rent of the suit premises as per the rent note dated 1.3.1970. Initially the rent was fixed at Rs. 40/- per month which was consequently enhanced to at Rs. 80/- per month. After 31.5.1983 defendants have not paid the rent, nor are they paying the electricity bill, therefore, suit in question was filed. The suit was registered and notice issued to the defendant on 25.9.1986, the suit was put to trial and six issues were framed. On the basis of evidence and material that has come on record, trial Court found that the rent of the suit premises has not been paid but on 24.8.1992 condoned the delay in depositing all the rent and dismissed the suit on the ground that the decree under section 12 (1) (a) cannot be passed. On a first appeal being filed by the plaintiff, the first appellate Court has decreed the suit and it is found by the first appellate Court that the trial Court committed error in condoning the delay in payment of rent. First appellate Court further found that during the pendency of the suit defendant has failed to pay the rent and therefore the plaintiff is entitled for a decree on the ground contemplated under section 12 (1) (a) of M.P. Accommodation Control Act. This judgment decreeing the suit for eviction passed by the first appellate Court is assailed in this appeal.

(3.) REFUTING the aforesaid, Shri V.K. Bharadwaj, learned counsel for the respondent submits that once the delay in payment of rent is established, trial Court committed grave error in condoning the delay without filing of an application. It is further argued by him that even when the appeal was pending before first appellate Court default in payment of rent was established, a report was called for from the trial Court and the trial Court submitted a report on 4.3.2003. In the said report finding recorded is that the defendants appellants herein have not paid the rent. Accordingly, Shri Bharadwaj submits that once it is established that the defendants are not paying rent continuously for a long period of time, appellate Court has not committed any error in decreeing the suit. The first appeal was filed on 29.2.1996 for the first time rent was deposited after four years on 2nd March 2001. Accordingly, it was submitted by him that the delay cannot be condoned and the suit is rightly decreed by the first appellate Court. In support of his contentions to the effect that the delay in deposits of the rent cannot be condoned without an application, he places reliance in the case of Khilan Singh v. Karuna Shankar Trivedi [1994 (1) MPJR 234].