BHARATCHAND Vs. VISHNUPANT

JUDGEMENT

(1.) WHEN this second appeal was placed before a learned single Judge for admission, he passed the following order The appeal is admitted for hearing on the following questions: 1. (a) There being non -compliance with section 13 (1) of the M.P. Accommodation Control Act, 1961, in the trial Court as well as in the first appellate Court, that first appeal also being by the plaintiff -landlord, was section 13 (6) of the Act attracted in both the Courts below?

(2.) IF the corresponding provisions contained in section 11 -A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947), which were for consideration before the Supreme Court, are perused with a little care, it can at once be seen that they are quite different from those contained in section 13 (1) of the M.P. Act and therefore, the Supreme Court decision is patently distinguishable. Section 11 -A of the Bihar Act is reproduced in paragraph 11 of the Supreme Court decision. It reads thus: -

(3.) THE words "at any stage of the suit" are undoubtedly comprehensive enough to apply to all stages of the litigation whether in the trial Court or in the first appellate Court or in the second appellate Court or in revision, or even in appeal to the Supreme Court. In the Madhya Pradesh Act, the words "at any stage of the suit" are not there. It can be seen from the observations in paragraph 12 of their Lordships' decision that it rests on the express "at any stage of the suit". Thus the provisions in the Bihar Act being different from those in the M.P. Act. Radha Kishan's case (supra) is not apposite. Shri Tare argued that in the M.P. Act also appeal is included in the suit, since appeal is a continuation of the suit. It is not correct to think that for all purposes an appeal is to be considered as continuation of the suit. It has to be seen in the context of the statute, in each case, whether an appeal would be a continuation of the suit, for the particular purpose under consideration. Having regard to the provisions contained in sub -section (1) of section 13, their rigour and impact, it is not possible to construe the word "suit" as including appeal on the basis that an appeal is continuation of the suit. That interpretation would lead to such unreasonable and unjust conclusions which the framers of law could not have contemplated. The landlord's appeal would be from the dismissal of his suit either (i) because he was unable to prove one of the grounds contained in clauses (a) to (p) of section 12(1) of the Act, or (ii) the suit for eviction was dismissed because the tenant earned special protection contained in section 12(3). In the latter case, the tenant, by virtue of the deterrent in section 12(3), will have to go on paying rent directly to the landlord regularly and, at the most, he can commit two consecutive defaults, but he cannot afford to commit the third default; otherwise, he would be evicted and the protection under section 12(3) will not be then available to him. It is made available only once in life and it is subject to the condition that he will go on depositing rent regularly but would not commit three consecutive defaults thereafter. Thus the landlord is reassured of payment of rent to him. Therefore, there is no enquity against the tenant for which he should be required to deposit rent and remain constantly under the risk of his valuable and vested right being destroyed, if he commits even a single default in depositing rent in the appellate Court. Such an intention could not be attributed to the Legislature. In the former case, obviously there is no equity in favour of the landlord inasmuch as the suit is dismissed because no ground under section 12(1) was available to him. 1967 JLJ 859 (FB). The Legislature would not contemplate that the tenant would lose the valuable right which vested in him, on the suit being dismissed, simply because he commits a single default in the appellate Court. There is no provision in any law that a successful party must presume that an appeal would be filed against him and should be subjected to an obligation, the non -fulfillment of which would lead to disasterous results. 6. There is no comparison or analogy between the provisions of the Bihar Act, which were before their Lordships in Radha Kishan Sao vs. Gopal Modi (supra) and the provisions contained in the Madhya Pradesh Act. When is the tenant required to deposit rent in the appellate Court under the Bihar Act? In the first place, there must be an application by the landlord in the appellate Court for an order requiring the tenant to deposit rent. In the second place, the tenant will be given an opportunity of being heard against the order prayed for. In the third place, the Court will apply its mind and exercise its discretion whether having regard to the facts and circumstances of the case, such an order should be passed. The Court may then pass an order, or it may refuse to pass an order requiring the tenant to deposit rent. All this is just and equitable. The very fact that there must be an order of the Court in obedience, of which the tenant will be required to deposit rent, makes it a case of equity. There is no automatic compulsion. Now, in the above setting of the provisions, it can be said that under the Bihar Act, when the real content of the word 'suit' is to be found out, the landlord can make an application under section 11 -A not only in the trial Court but also in the appellate Court because of the words, "at any stage of the suit". And, then it must be said that the appeal is a stage of the suit. Their Lordships held so because of the context and not divorced from it. 7. On the other hand in the Madhya Pradesh Act, the word "suit" in section 13(1) is read as to include an appeal, most inequitable and unjust consequences will follow, as we have pointed out above. It bears repetition that when a suit is dismissed the tenant acquires a valuable right. Specific language will be required to take away that right otherwise than on merits of the case. What Shri Tare wants us to hold is that even if the tenant commits a single default in depositing rent in the appellate Court, the right vested in him by the dismissal of the suit will be destroyed and him defence would be struck out. We are unable to give that construction to the word "suit" in the setting of the provisions of the Madhya Pradesh Act. We must hold that here the word "suit" does not include an appeal as continuation of the suit. 8. We must now mention two things from the decision in Ratanchand Firm vs. Rajendra Kumar (supra) on which Shri Tare strongly relied. The first is that the Full Bench in that case in strong language, rejected the contention that the word "suit" in section 13(1) is to be read as including an appeal being a continuation of the suit. There also it was observed as follows: -