JAGANNATH PRASAD ONKARPRASAD SHARMA Vs. MOHARSINGH KARAN SINGH

JUDGEMENT

(1.) THIS second appeal is at the instance of the plaintiff seeking interference with the judgment and decree made by the lower appellate Court after reversing that of the trial Court. The lower appellate Court has dismissed the claim for eviction by holding that since the ground under section 12 (1) (a) of the M. P. Accommodation Control Act, 1961 was not initially available on the date of the suit itself, there was no scope for decreeing the claim for eviction in the absence of any other ground as specified in section 12 (1) (a) of the Act, despite the fact that the case of the defendant tenant was hit by the proviso appended to sub-section (3) of section 12 of the act, which deprives the tenant from getting protection against eviction on the ground under section 12 (1) (a) of the Act, i. e. default in payment of arrears of rent, if he had already availed of such benefit once in an earlier suit.

(2.) IN order to appreciate the points arising for determination in this appeal, the facts relevant are that prior to the institution of the present suit out of which this appeal arises, one civil suit registered as Civil Suit No. 80-A of 1968 was instituted by the landlord claiming eviction of the tenant and in the said suit, the ground under section 12 (1) (a) of the Act was pleaded and relied for claiming eviction. In the aforesaid suit, the tenant did make immediate deposits in compliance of the provisions of section 13 (1) of the act. However, as is evident from the judgment in the earlier suit, the claim for eviction could not be decreed because the quit notice relied in the earlier suit for determining the contractual tenancy was found to be invalid. It is true that the Court while dismissing the suit did make an observation that the tenant had complied with the provisions of section 13 (1) of the Act and as such he could also claim the protection under sub-section (3) of section 12 of the Act. Before institution of the present suit when the tenant again fell in arrears of rent, a notice of demand was served. The tenant, however, this time remitted the entire amount of rent by money order vide Ex. D -1 within the prescribed period of two months and when the same was tendered to the landlord, he refused to accept the same. Accordingly, it was returned back to the sender with the endorsement made by the postman disclosing refusal by the payee. The landlord has also admitted in his cross examination that he had refused to accept the payment sent vide Ex. D -1. After trial of the present suit, the trial Court, however, decreed the claim for eviction by holding that since the tenant had already availed the protection under sub-section (3) of section 12 in the earlier suit, he was liable to be evicted irrespective of the fact that on service of the notice, on which the present suit is based, he had remitted the entire amount by money order within two months, because after the dismissal of the first suit, he had been in arrears for more than three consecutive months and that itself made him liable for eviction. The lower appellate Court was, however, of the view that since the claim for eviction in the earlier suit had to be dismissed for want of service of proper quit notice, there was no question of the tenant availing the protection under section 12 (3) of the Act in the subsequent suit. The lower appellate Court was also of the view that in the second suit, the ground under section 12 (1) (a)of the Act was initially not at all available because the tenant had remitted the amount of arrears of rent within two months from the date of service of notice of demand, and once the ground under section 12 (1) (a) of the Act was not available to the plaintiff on the date of the institution of the second suit, there was no question of applying the proviso to section 12 (3) of the act because the claim for eviction cannot be decreed in the absence of a ground under section 12 (1) (a) of the Act. The lower appellate Court accordingly dismissed the claim of the plaintiff for eviction of the defendant tenant. Being aggrieved by the same, the plaintiff landlord has preferred this appeal.

(3.) THE learned single Judge, who heard this ease on the question of admission admitted this second appeal for final hearing of the parties on the following two questions-: