HEERA TRADERS VS KAMLA JAIN

HEERA TRADERS VS KAMLA JAIN

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).5996-5997_OF 2021
(Arising out of SLP (C) NO(s).13834-13835/2021)
HEERA TRADERS ..APPELLANT(S)
VERSUS
KAMLA JAIN ..RESPONDENT(S)
WITH
CIVIL APPEAL NO(s).5998-5999_OF 2021
(Arising out of SLP(C)No(s).14357-14358/2021)
POOJA COLLECTIONS ..APPELLANT(S)
VERSUS
KAMLA JAIN ..RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appeals raise certain common questions apart
from the respondent being common. Hence the common
judgment. By the impugned orders passed in these cases,
the High Court while allowing the application filed by
appellants under Order XLI Rule 5 of the Code of Civil
2
Procedure and applications for an appropriate direction
to the appellants to pay mesne profits along with the
regular monthly rent and damages filed by respondent,
directed that the appellants shall pay the rent of suit
shops at the rate of Rs.18000/- per month to the
respondent from the date of decree passed by the lower
Appellate Court till the disposal of the Second
Appeals. The appellants were directed to pay the entire
arrears of rent within a period of 2 months failing
which the interim order of protection from eviction
under the decree was to stand vacated.
2. The Respondent is the landlady of the Appellants
in both the appeals. In SLP (Civil) No. 14357-58 of
2021, the appellant was inducted as a tenant of a nonresidential accommodation of 150 square feet for a
monthly rent of Rs. 847/- in the year 1975. On
06.08.2009 the Respondent filed a suit under Section
12 (1) (a), (c), (f) and (h) of the Madhya Pradesh
Accommodation Control Act, 1961, (hereinafter referred
as ‘the Act’). Apart from eviction the respondent also
sought a decree for mesne profit. The trial court
decreed the suit and ordered eviction under Section 12
3
(1) (f) and (h) of the Act. First Appeal filed by the
appellant stood dismissed by judgment dated 25.03.2014.
It is thereupon that the appellant filed a Second
Appeal on 12.06.2014. He moved an application on
18.06.2014. An interim order against eviction was
passed of stay from eviction. Thereafter the respondent
filed an application for Appropriate Directions as
Reply to the application under Order 41 Rule 5 of CPC.
The court directed on 25.04.2016, the Rent Control
Authority to submit a report regarding the prevailing
market rate of accommodation in question making it
clear that the calling of such report did not mean that
a decision was taken on the question whether direction
could be issued on the application filed by the
respondent. On 16.09.2016 the Second Appeal came to be
admitted. The interim order which was passed earlier
came to be made absolute. The Rent Control Authority,
it is alleged, without affording opportunity to the
appellant, submitted a report which was prepared
relying on the Panchnama of the Revenue Inspector. On
17.03.2020, the court proceeded to pass the impugned
order directing the appellant to pay the mesne profit
4
of Rs. 18000/- per month. It was the case of the
appellant that he came to know about the order when the
respondent moved an application for executing the order
dated 17.03.2020 and an application for recall filed
by the appellant of the order dated 17.03.2020 came to
be dismissed.
3. In the other appeal, the appellant was likewise
inducted into a non-residential accommodation
admeasuring 100 square feet on a monthly rent of Rs.
622/-. Otherwise by the order impugned the appellant
has asked to pay rent at the rate of Rs. 18,000/- per
month.
4. We heard the learned Senior Counsel for the
Appellant, Shrimati Shobha Menon and Shri Amit Sahni,
learned Counsel for the Respondent. The contention
raised by the appellant revolves around the proper
interpretation to be placed on Section 13 of the Act.
It is the complaint of the appellant that the High
Court has not borne in mind that the present avatar of
Section 13 was a product of a substitution effected in
the year 1983. It is contended that the decisions of
this court in Atma ram Properties (P) Ltd. v. Federal
5
Motors (P) Ltd.1 and State of Maharashtra v. M/s. Super
Max International Pvt. Ltd.
2, which related to the Delhi
Rent Control Act and the provisions relating to Rent
Control in Bombay respectively would not apply. This
is for the reason that the cases arising within the
state of Madhya Pradesh must be dealt with under
Section 13 of the Act. Section 13 protects a tenant
even during the pendency of an appeal against the order
of eviction as long as he deposited the agreed rent.
In this case there is no dispute relating to the rent.
Per contra, Shri Amit Sahni would point out that on a
proper construction of the Section 13 of the Act along
with the other relevant provisions, the conclusion is
inevitable that the impugned order was fully justified.
5. Section 13 of the Act reads as follows: -
“13. When tenant can get benefit of
protection against eviction. - [(1) On a
suit or any other proceeding being
instituted by a landlord on any of the
grounds referred to in Section 12 or in any
appeal or any other proceeding by a tenant
against any decree or order for his
eviction, the tenant shall, within one month
of the service of writ of summons or notice
1 (2005) 1 SCC 705
2 (2009) 9 SCC 772
6
of appeal or of any other proceeding, or
within one month of institution of appeal
or any other proceeding by the tenant, as
the case may be, or within such further time
as the Court may on an application made to
it allow in this behalf, deposit in the
Court or pay to the landlord, an amount
calculated at the rate of rent at which it
was paid, for the period for which the
tenant may have made default including the
period subsequent thereto up to the end of
the month previous to that in which the
deposit or payment is made ; and shall
thereafter continue to deposit or pay, month
by month by the 15th of each succeeding
month a sum equivalent to the rent at that
rate till the decision of the suit, appeal
or proceeding, as the case may be.
(2) If in any suit or proceeding referred
to in sub-Section (1), there is any dispute
as to the amount of rent payable by the
tenant, the Court shall, on a plea made
either by landlord or tenant in that behalf
which shall be taken at the earliest
opportunity during such suit or proceeding,
fix a reasonable provisional rent, in
relation to the accommodation, to be
deposited or paid in accordance with the
provisions of sub-Section (1) and no Court
shall, save for reasons to be recorded in
writing, entertain any plea on this account
at any subsequent stage].
(3) If, in any proceeding referred to in
sub-Section (1), there is any dispute as to
the person or persons to whom the rent is
payable, the Court may direct the tenant to
deposit with the Court the amount payable
by him under sub-Section (1) or sub-Section
7
(2), and in such a case, no person shall be
entitled to withdraw the amount in deposit
until the Court decides the dispute and
makes an order for payment of the same.
(4) If the Court is satisfied that any
dispute referred to in sub-Section (3) has
been raised by a tenant for reasons which
are false or frivolous, the Court may order
the defence against eviction to be struck
out and proceed with the hearing of the
suit.
(5) If a tenant makes deposit or payment as
required by sub-section (1) or sub-Section
(2), no decree or order shall be made by the
Court for the recovery of possession of the
accommodation on the ground of default in
the e payment of rent by the tenant, but the
Court may allow such cost as it may deem fit
to the landlord.
[(6) If a tenant fails to deposit or pay any
amount as required by this Section, the
Court may order the defence against eviction
to be struck out and shall proceed with the
hearing of the suit, appeal or proceeding,
as the case may be.]”
(Emphasis supplied)
6. It is to be noticed that Section 13 before being
substituted in the year 1983 read as follows: -
“13. When tenant can get benefit of
protection against eviction.—(1) On a suit
or proceeding being instituted by the
landlord on any of the grounds referred to
in Section 12, the tenant shall, within one
month of the service of the writ of summons
8
on him or within such further time as the
court may, on an application made to it,
allow in this behalf, deposit in the court
or pay to the landlord an amount calculated
at the rate of rent at which it was paid,
for the period for which the tenant may have
made default including the period subsequent
thereto up to the end of the month previous
to that in which the deposit or payment is
made and shall thereafter continue to
deposit or pay, month by month, by the 15th
of each succeeding month a sum equivalent
to the rent at that rate.
(2) If in any suit or proceeding referred
to in sub-section (1), there is any dispute
as to the amount of rent payable by the
tenant, the court shall fix a reasonable
provisional rent in relation to the
accommodation to be deposited or paid in
accordance with the provisions of subsection (1) till the decision of the suit
or appeal.
(3) If, in any proceeding referred to in
sub-section (1), there is any dispute as to
the person or persons to whom the rent is
payable, the court may direct the tenant to
deposit with the court the amount payable
by him under sub-section (1) or sub-section
(2), and in such a case, no person shall be
entitled to withdraw the amount in deposit
until the court decides the dispute and
makes an order for payment of the same.
(4) If the court is satisfied that any
dispute referred to in sub-section (3) has
been raised by a tenant for reasons which
are false or frivolous, the court may order
the defence against eviction to be struck
9
out and proceed with the hearing of the
suit.
(5) If a tenant makes deposit or payment as
required by sub-section (1) or sub-section
(2), no decree or order shall be made by the
court for the recovery of possession of the
accommodation on the ground of default in
the payment of rent by the tenant, but the
court may allow such cost as it may deem fit
to the landlord.
(6) If a tenant fails to deposit or pay any
amount as required by this section, the
court may order the defence against eviction
to be struck out and shall proceed with the
hearing of the suit.”
7. It is the further case of the landlady that the
definition of the word tenant in the Act is identical
with the definition of the word ‘tenant’ in Delhi Rent
Control Act, in so far as it provides interalia that
upon the passing of an order of eviction the erstwhile
tenant would cease to be a tenant. Therefore, on the
principle enunciated in Atma Ram Properties (supra) and
M/s. Super Max (supra) there can be no rationale or
logic to not extend the said principle and vouchsafe
the same measure of justice to the landlady. He would
further point out that what Section 13 actually
provides is that the tenant must continue to pay the
10
rent even during the pendency of the appeal. The actual
protection against eviction however is provided when
the ground for eviction is arrears of rent. In this
regard he drew support from Section 13 (5). Section
13(5), he points out, protects a tenant, who is found
to be in default of the payment of rent and an order
of eviction is sought, (being protected) from eviction
as long as he continues to pay the rent. As far as
other grounds for eviction against a tenant being
successfully pressed by the landlord culminating in an
order of eviction being passed and upon an appeal being
filed by the tenant as he loses the status of a tenant
going by the definition of the word of tenant when an
order is passed under Order XLI Rule 5 of the CPC, the
Appellate Court is fully justified in putting the
appellants to terms by way of ordering of reasonable
amount as rent as a condition for the grant of stay of
eviction. He pointed out that Section 13 (1) does not
use the word rent.
11
THE CASE LAW RELIED UPON BY THE PARTIES
8. In Shrimati Chander Kali Bai and others v. Shri
Jagdish Singh Thakur and another3, the case arose under
the act in question. The third contention of the
appellants tenants against whom the first Appellate
Court had decreed the suit, which was for eviction,
arrears of rent and also for past and future damages
was that the decree for damages could not be awarded
from the date of the termination of contractual
tenancy. It was contended that it could be awarded from
the date of the Eviction Decree. This Court accepted
the said contention based on the definition of the word
tenant in the Act. In regard to Section 13 of the Act
as it stood prior to the substitution we notice the
following discussion: -
“9. Mrs Seth in support of her argument
rightly pressed into service a few other
provisions of the Act. Section 13(1) giving
protection against eviction on the ground
of default in payment of rent provides
therein that even after the institution of
the suit if he clears off the amount of
rent due within a period specified in the
section and thereafter “continue to deposit
or pay, month by month, by the fifteenth of
3 (1977) 4 SCC 402
12
each succeeding month a sum equivalent to
the rent at that rate” calculated at the
rate of rent at which he was paying earlier,
no decree for eviction can be passed. The
conclusion is inevitable, therefore, that
if a suit is filed on the ground of nonpayment of rent after termination of the
contractual tenancy, the tenant still
continues to be a tenant liable to pay rent
not only for the past period but in future
also. In absence of a decree of eviction
the person in occupation of the
accommodation continues to be a tenant and
is not liable to pay any damages as his
occupation is not unauthorised or wrongful
even after the termination of the
contractual tenancy. In Damadilal case,
Gupta, J. delivering the judgment of this
Court has said at p. 653 (SCC p. 864) with
reference to the definition of tenant in
Section 2(i) of the Act:
“The definition makes a person
continuing in possession after the
determination of his tenancy a tenant
unless a decree or order for eviction
has been made against him, thus putting
him on par with a person whose
contractual tenancy still subsists.
The incidents of such tenancy and a
contractual tenancy must therefore be
the same unless any provision of the
Act conveyed a contrary intention. That
under this Act such a tenant retains
an interest in the premises, and not
merely a personal right of occupation,
will also appear from Section 14 which
13
contains provisions restricting the
tenant's power of sub-letting.””
(Emphasis supplied)
9. In Shyamcharan Sharma v. Dharamdas4, a Bench of 3
learned Judges had occasion to deal with the impact of
Section 13 prior to it being substituted in the year
1983. This Judgement is relied upon by the respondent
landlady. It was a case, where a suit was filed for
eviction on the ground of arrears of rent and bonafide
requirement. The ground of bonafide did not appeal to
any of the courts. As regards the ground of arrears of
rent, the trial court protected the tenant under
Section 12(3) of the Act. In appeal by the landlord,
an application seeking condonation of delay in
depositing rent month by month payable after the filing
of the suit came to be rejected by the High Court
holding that the court did not have power to extend the
time. The respondent relied upon the following
exposition.
“4. It is true that in order to entitle a
tenant to claim the protection of Section
12(3), the tenant has to make a payment or
deposit as required by Section 13, that is
to say, the arrears of rent should be paid
4 (1980) 2 SCC 151
14
or deposited within one month of the
service of the writ of summons on the tenant
or within such further time as may be
allowed by the court, and should further
deposit or pay every month by the 15th, a
sum equivalent to the rent. It does not,
however, follow that failure to pay or
deposit a sum equivalent to the rent by the
15th of every month, subsequent to the
filing of the suit for eviction, will
entitle the landlord, straightway, to a
decree for eviction. The consequences of
the deposit or payment and non-payment or
non-deposit are prescribed by sub-sections
(5) and (6) of Section 13. Since there is
a statutory provision expressly prescribing
the consequence of non-deposit or nonpayment of the rent, we must look to and be
guided by that provision only to determine
what shall follow. Section 13(6) does not
clothe the landlord with an automatic right
to a decree for eviction; nor does it visit
the tenant with the penalty of a decree for
eviction being straightway passed against
him. Section 13(6) vests, in the court, the
discretion to order the striking out of the
defence against eviction. In other words,
the court, having regard to all the
circumstances of the case, may or may not
strike out the defence. If Section 13 were
to be construed as mandatory and not as
vesting a discretion in the court, it might
result in the situation that a tenant who
has deposited the arrears of rent within
the time stipulated by Section 13(1) but
who fails to deposit thereafter the monthly
rent on a single occasion for a cause beyond
his control may have his defence struck out
15
and be liable to summary eviction. We think
that Section 13 quite clearly confers a
discretion, on the court, to strike out or
not to strike out the defence, if default
is made in deposit or payment of rent as
required by Section 13(1). If the court has
the discretion not to strike out the
defence of a tenant committing default in
payment or deposit as required by Section
13(1), the court surely has the further
discretion to condone the default and
extend the time for payment or deposit.
Such a discretion is a necessary
implication of the discretion not to strike
out the defence. Another construction may
lead, in some cases, to a perversion of the
object of the Act, namely, “the adequate
protection of the tenant”. Section 12(3)
entitles a tenant to claim protection
against eviction on the ground specified in
Section 12(1)(a) if the tenant makes
payment or deposit as required by Section
13. On our construction of Section 13 that
the court has the power to extend the time
for payment or deposit, it must follow that
payment or deposit within the extended time
will entitle the tenant to claim the
protection of Section 12(3). One of the
arguments advanced before us was that there
was no express provision for extension of
time for deposit or payment of monthly rent
subsequent to the filing of the suit
whereas there was such express provision
for payment or deposit of arrears of rent
that had accrued before the filing of the
suit. Obviously, express provision for
extension of time for deposit or payment of
rent falling due after the filing of the
16
suit was not made in Section 13(1) as the
consequence of non-payment was proposed to
be dealt with by a separate sub-section,
namely, Section 13(6). Express provision
had to be made for extension of time for
deposit or payment of rent that had accrued
prior to the filing of the suit, since that
would ordinarily be at a very early stage
of the suit when a written statement might
not be filed and there would, therefore, be
no question of striking out the defence
and, so, there would be no question of
Section 13(6) covering the situation.”
10. We must notice that the respondent landlady is
obviously pressing the point that the purport of
Section 13 cannot be divorced from the ground of
eviction namely the tenant committing default in
payment of rent before the suit or during the pendency
of the proceeding. In Ram Murti vs. Bhola Nath and
another5, this Court purported to follow the Judgment
in Shyamcharan Sharma (supra). The case arose under the
Delhi Rent Control Act. In short, the principle that
emerges is that the court has power to extend the time
to pay the defaulted rent instead of striking out the
tenant’s defence against eviction. The respondent
5 (1984) 3 SCC 111
17
relied on M/s. Frick India Ltd. v. Union of india and
others6 for the proposition that the heading of a
section cannot control the meaning of the provision.
This again we must notice is an attempt to persuade the
court that it must not be overwhelmed by the heading
of Section 13 which declares as follows: -
“When tenant can get benefit of protection against
eviction”.
11. In Pushpa Devi and Others v. Milkhi Ram (Dead) by
his Lrs.
7, which is relied upon by the appellants, this
court laid emphasis on importance of contextual
construction of a statue. We notice the following
statements: -
“18. It is true when a word has been defined
in the interpretation clause, prima facie
that definition governs wherever that word
is used in the body of the statute unless the
context requires otherwise. “The context” as
pointed out in the book Cross-Statutory
Interpretation (2nd edn. p. 48) “is both
internal and external”. The internal context
requires the interpreter to situate the
disputed words within the section of which
they are part and in relation to the rest of
6 1990 (1) SCC 400
7 1990 (2) SCC 134
18
the Act. The external context involves
determining the meaning from ordinary
linguistic usage (including any special
technical meanings), from the purpose for
which the provision was passed, and from the
place of the provisions within the general
scheme of statutory and common law rules and
principles.
19. The opening sentence in the definition
of the section states “unless there is
anything repugnant in the subject or
context”. In view of this qualification, the
court has not only to look at the words but
also to examine the context and collocation
in the light of the object of the Act and the
purpose for which a particular provision was
made by the legislature.”
12. In Jamnalal and others v. Radheshyam8, this court
considered Section 13 again prior to it being
substituted in the year 1983. We notice the following:
“11. The scheme of Section 13 of the Act
suggests that the provisions thereof are
intended for the benefit of both the tenant
as well as the landlord. While Section 13
affords protection to a defaulting tenant,
willing to abide by the obligation to pay the
rent regularly, against eviction on the
ground of default in payment of rent, it also
ensures payment of rent to the landlord,
which he is entitled to receive for both the
8(2000) 4 SCC 380
19
pre-litigation period as well as during the
pendency of the litigation. A perusal of subsection (1) of Section 13 discloses that it
imposes twin obligations on the tenant
against whom a suit or proceeding is
instituted on any of the grounds mentioned
in sub-section (1) of Section 12. The first
is that within one month of the service of
the writ of summons on him or within such
further time as the court may, on an
application made to it, allow in this behalf,
the tenant shall deposit in the court or pay
to the landlord an amount, representing (a)
arrears of rent for the period for which the
tenant may have made default, and (b) rent
for the period subsequent thereto up to the
end of the month previous to that in which
the deposit or payment is made, duly
calculating the same at the rate of rent at
which it was paid. And the second is
payment/deposit of rent for the period
thereafter, that is, future rent which he
shall continue to deposit or pay, month by
month, by the 15th of each succeeding month,
at that rate. For the purpose of depositing
the amount of rent, sub-section (1) refers
to three periods in chronological order,
i.e.,
(i) period for which arrears of rent are due,
which is the subject-matter of notice of
demand served on the tenant;
(ii) period for which rent became due
subsequent to the notice of demand till the
date of deposit of rent in court; and
(iii) period for which rent will become due
in future, after the date of deposit as
aforementioned, till the decision of suit or
appeal.
20
The following illustration will help in
elucidating the import of the provisions
under consideration; if a tenant has last
paid rent of tenanted premises, say, @ Rs
1000 for the month of January and did not pay
for the months of February, March and April
and notice of demand claiming arrears of rent
for those months was served on him in May,
the Act permits him to pay the arrears of
rent within two months of service of demand,
i.e., till the end of July. Assuming he has
failed to do so and the landlord files the
suit under Section 12(1)(a) of the Act of
which writ of summons is served on the tenant
on September 15, for his appearance in the
court, he has the second opportunity to pay
arrears of rent in court within one month of
service of summons on him i.e. till October
14 or within such further time as the court
may allow; but at that stage along with
arrears of rent for the said months he has
also to pay/deposit rent for the months from
May to the end of September. The second
obligation of depositing the future rent
continuously from month to month covers the
period commencing from October and ending
with the decision of suit or appeal. The
arrears of rent and the future rent for each
month, in the illustration, have to be
calculated at the rate of Rs 1000.
12. The above stated two obligations are
independent of each other. Compliance with
the second does not depend upon fulfilment
of the first obligation. It is evident that
Section 13(1) applies to institution of a
suit on any of the grounds in clauses (a) to
(p) of Section 12(1) and not merely to one
21
under clause (a) — default in payment of
rent. In cases under clauses other than (a),
the tenants might have been paying the rent
regularly and the question of payment/deposit
of arrears of rent or rent for the period
subsequent to service of summons, may not
arise. Can then, based on the word
“thereafter”, it be argued that there will
be no liability to deposit future rent — the
second obligation noted above. In our view
such a contention will be defeating the
object of the provision and will be
impermissible. Having stated how the amount
of rent payable by the tenant for the periods
specified therein should be calculated and
deposited, the provision imposes further
obligation to deposit the rent month by month
till the termination of the suit or
proceedings. The word “thereafter” is merely
indicative of the sequence of the second
obligation to deposit the future rents; it
is certainly not suggestive of the fact that
if the first obligation for any reason cannot
be complied with then the occasion to comply
with the second obligation does not arise or
that it automatically comes to an end. It
would be unthinkable that that could be the
intention of the legislature.”
(Emphasis supplied)
13. In Sobhagyamal and another v. Gopal Das Nikhra9,
this court had occasion to deal with Section 13 after
it was substituted and in the form in which it arises
9 (2008) 3 SCC 788
22
for our consideration. It was a case where the tenant
stood protected from eviction in the first round of
litigation where the landlord set up the plea of
arrears of rent. However, while the matter was pending
before this court in SLP, the tenant had committed
default in payment of rent. This led to a fresh
proceeding for eviction. Noticing the embargo against
a tenant availing the benefit of Section 12 (3) more
than once, this court has laid down as follows: -
“9. A landlord can seek ejectment of his
tenant from the premises let out to him only
on the ground(s) enumerated in Section 12 of
the Act. Clause (a) of sub-section (1) of
Section 12 of the Act authorises the landlord
to seek ejectment of his tenant if he has
neither paid nor tendered the whole of the
arrears of rent legally recoverable from him
within two months of the service of notice
demanding the arrears of rent. Sub-section
(3) of Section 12 puts a caveat on the right
of the landlord to get ejectment on the
ground of arrears of rent if the tenant makes
payment or deposit as required by Section 13.
However, by virtue of the proviso to subsection (3), the benefit given to the tenant,
on compliance with the payment of rent as
provided under Section 13, would be available
to him only once in respect of that
accommodation, but on default in the payment
of rent in respect of same accommodation for
three consecutive months he would not be
23
entitled for protection by depositing the
rent as provided under Section 13 in the
subsequent proceedings initiated by the
landlord for ejectment of the tenant on the
ground of arrears of rent.
10. Section 13 of the Act requires that the
tenant shall within one month of the service
of writ of summons or notice of appeal or of
any other proceeding deposit the rent when
the proceedings are initiated by the landlord
on any of the grounds referred to in Section
12 or within one month of institution of
appeal or any other proceeding when taken by
the tenant against any decree or order for
his eviction. The period of one month given
to the tenant for depositing the rent from
the date of the summons or the notice of
appeal or of any other proceeding could be
extended by the court on an application made
to it. The rent which is required to be
deposited under the section can be in the
court or it may be made over to the landlord.
The section further requires that after the
deposit of the arrears of rent the tenant
shall continue to make deposit or pay month
by month by 15th of each succeeding month a
sum equivalent to the rent at that rate till
the decision of the suit, appeal or
proceeding, as the case may be. Sub-section
(5) of Section 13 provides that if the tenant
makes deposit or payment as required by subsection (1) or sub-section (2) no decree or
order shall be made by the court for recovery
of possession on the ground of default in the
payment of rent by the tenant. Sub-section
(6) gives an option to the landlord if the
tenant does not deposit the rent or pay it
24
to the landlord as required under Section 13
to move an application for the defence
against eviction to be struck out. Subsection (5) of Section 13 has no application
in a case when the ejectment is not sought
by the landlord on the ground of arrears of
rent, but the suit is instituted by the
landlord on any other ground(s) of Section
12 of the Act. Striking out of the defence
of the tenant on an application moved by the
landlord, is a provision applicable in the
suit for ejectment on any of the grounds
mentioned under Section 12 inclusive of under
Section 12(1)(a) of the Act, whereas subsection (5) of Section 13 would apply only
when the suit is instituted for ejectment on
the ground of arrears of rent under Section
12(1)(a) of the Act.
11. From the aforesaid, it is clear that
Section 12(3) of the Act provides for an
exception to the general rule contained in
Section 12(1)(a) that in the event tenant
becomes a defaulter, he is liable to be
evicted. From the proviso to Section 12(3)
of the Act, it is clear that the protection
given to the tenant is only one-time
protection. Proviso appended to Section 12(3)
controls the main provisions. The exemption
contained in Section 12(3), thus, is not
extended to the tenant who becomes a
defaulter for more than once. In view of the
aforesaid, we are of the opinion that once
the tenant had availed the benefit of the
proviso to Section 12(3) of the Act, the said
benefit was not available to the tenant in
committing a further default in payment of
rent for three consecutive months.”
25
14. Respondent relies upon decision of the Full Bench
in Mankunwar Bai and others v. Sunderlal Jain10. The
question, which arose was, whether the tenant was
obliged to pay time-barred rent under the first part
of Section 13(1) of the Act. No doubt, the Court was
dealing with Section 13 prior to substitution in 1983.
The Court went on to hold that the tenant is not liable
to deposit the time-barred arrears of rent,
particularly having regard to the requirement in
Section 12(1)(a) that the arrears of rent must be
legally recoverable from the tenant. In the course of
the said Judgment, the Court held that the expression,
“the period for which the tenant may have made
default”, as pointed out above, refers to the default
under Section 12(1)(a).
15. The definition of the word “tenant” in Section 2(i)
undoubtedly does not include any person against whom
an Order or Decree for Eviction has been made. It would
not include even a tenant, against whom, an Order of
Eviction has been made under Section 12(1)(a), which
10 AIR 1978 MP 165 / 1979 ILR MP 676
26
provides that default in payment of rent within two
months of the demand for the arrears of rent, shall be
a ground to evict. Section 13 on the other hand starts
with the heading ‘when tenant can get the benefit of
protection against eviction’. It is correct that the
heading of a section cannot control the construction
of the provision itself. The provision, as it unfolds
under the heading, must be given the full meaning
according to the principles of interpretation, which
the court is persuaded to apply. The only area where
the heading may be useful is when the provision is
shrouded in ambiguity. The heading may shed some light,
however, faint it may be.
16. The provisions of Section 13, as it stood prior to
substitution in the year 1983, did not embrace a
situation where any Appeal or other proceeding was
filed by a tenant. On the other hand, under the
erstwhile avatar, the Law-Giver confined the provision
to a situation where a Suit or proceeding was
instituted by the landlord.
17. We may notice that the majority of the Full Bench
of the Madhya Pradesh High Court in a case in S.S.
27
Harishchandra Jain and others v. Dr. Captain Indersingh
Bedi11
, took the view that Section 13 applied only to
Suits. It was further held that the words, “other
proceedings”, in the opening part of Section 13, is
without meaning in both sub-Sections (1) and (2) of
Section 13. It was further held that the object of
Section 13 is to put a check on the unscrupulous tenant
who would protract litigation without payment of rent.
It was further held that in the tenant’s appeal,
application of Section 13 was unnecessary because the
landlord could execute the Decree and recover rent and
if a stay was sought, condition of payment of rent
could be imposed. This view came to be reiterated by a
7-Judges Bench in AIR 1978 MP 143 and the Court held
as follows:
“17. We answer the question referred to us
in the negative. Agreeing with the dicta
in Harishchandra v. Indersingh, 1977 MPLJ
417 : (AIR 1977 Madh Pra 199 (FB)), we hold
that Section 13 of the M.P. Accommodation
Control Act, 1961, does not apply, and no
part of that section applies, to an appeal
(whether the appeal be by the tenant or by
the landlord) and that the law was correctly
laid down in Harishchandra's case and it
continues to be so because their Lordships'
11 AIR 1977 MP 199
28
decision in Radha Kishan v. Gopal Modi,
(1977) 2 SCC 656 : AIR 1977 SC 1217 is
clearly distinguishable, the provisions of
the Bihar Act being different from those of
the Madhya Pradesh Act. Further, we say with
respect that Ratanchand v. Rajendra
Kumar (AIR 1970 Madh Pra 1 (FB)) (supra) did
not lay down law correctly when it held that
S. 13 applies to an appeal also.”
18. It is apparently, in the light of this view, which
came to be pronounced on 14.01.1978, that the
Legislature stepped in and substituted Section 13 by
Act 27 of 1983.
19. Let us first analyse the impact of Section 13, as
it stood prior to its substitution in the year 1983.
Section 12(1)(a) confers a right upon the landlord to
seek eviction on the ground of the tenant falling into
arrears of rent and remaining in arrears even after
service of a notice of a demand. The default should
persist for two months from the service of demand. The
demand must relate to arrears of rent not barred by
time. This is a ground available under Section
12(1)(a). It constitutes a cause of action for seeking
eviction. However, Section 12(3) provided and continues
to provide that no Order for the Eviction of a tenant
29
shall be made on the ground under Section 12(1)(a), if
the tenant makes payment or deposit, as contemplated
in Section 13. The proviso to Section 13, however,
tabooed and continues to prohibit the invocation of the
protection under Section 12(3) read with Section 13,
more than once, in respect of any accommodation. The
tenant, in other words, stands shielded from eviction
despite the availability of the ground under Section
12(1)(a), leading to an Eviction proceeding being
filed. But, in respect of the same accommodation, in
respect of which, the default took place, the tenant
does not get insulated from eviction, if he defaults
in payment of rent for the same accommodation for three
consecutive months. This was the protection, which was
actually contemplated under Section 13, prior to
Section 13 being substituted in the year 1983. Till
1983, thus, the protection could not be availed by any
tenant on the ground of payment of rent by him during
the proceeding for eviction or Appeal.
20. After Section 13 was substituted in 1983, the
legislative intent marks a shift. The tenant is obliged
not only when a Suit or other proceeding is filed by
30
the landlord to deposit the amount in terms of Section
13, but he is compelled by law, even after an Order of
Eviction has been passed against him and when he
challenges the Decree or Order for Eviction by way of
an Appeal or other proceeding, to deposit within one
month of the institution of the Appeal or other
proceeding the amount equal to the rent. He may also,
on an application made to the court, deposit the amount
or pay within such further time, as the court may allow.
The amount, to be paid by the tenant, is to be
calculated at the rate of the rent at which it was
paid. So far, there is no controversy.
21. The conundrum is introduced by the following words
in Section 13 “for the period for which the tenant may
have made default”. It is here that the debate
sharpens. The respondent-landlord would emphasise that
the Law-Giver has only intended that the protection
from eviction, on the ground of arrears of rent, would
be applicable in an Appeal or other proceeding by the
tenant against the Decree or Order for eviction on such
ground. In other words, the interpretation, placed by
the respondent, can be summed-up as follows. In a case,
31
where there is a Suit filed by the landlord for
eviction, invoking Section 12(1)(a), alleging that the
tenant has fallen in arrears of rent and an Order of
Eviction is passed, then, if a tenant were to appeal
or file any other proceeding, in such a case, the tenant
must deposit the amount of rent for the period, for
which, the tenant may have made default. Not only must
he make payment for the period of default, which led
to the proceeding, but he must continue to pay or make
deposit for the period subsequent thereto upto the end
of the month previous to that in which the deposit or
payment is made. The third limb also must be complied
with by the tenant in an Appeal or other proceeding by
him against the Decree or Order of Eviction, which is
that during the pendency of the Appeal or other
proceeding by him, he must continue to deposit or pay
month-by-month, by the 15th of each succeeding month,
the amount equivalent to the rent, at the rate of which,
it was being paid till the decision is rendered in the
Appeal or proceeding.
22. At this juncture, we may notice one of the salient
features of the Act. Section 11A provides that Chapter
32
III, in which Sections 12 and 13 appear, shall not
apply to matters provided, especially in Chapter IIIA
to a landlord defined in Section 23J. Section 23J
defines “landlord”, for the purpose of Chapter IIIA,
as retired Government Servant, widow, a divorced wife
and physically handicapped person, inter alia. The
proceeding is instituted under Chapter IIIA before the
Rent Controlling Authority (hereinafter referred to as,
‘the Authority’). The grounds for eviction under
Chapter IIIA are bonafide need for the residential and
non-residential purposes. The ground of arrears of rent
is conspicuous, it must be noticed by its absence in
the proceeding under Chapter IIIA. The right of the
tenant is constrained by restrictions, as provided in
Section 23C. He must obtain leave to contest. Section
23D provides for the procedure to be followed by the
Authority to grant leave. Section 23E declares that no
Appeal shall lie from any Order passed by the
Authority. However, Section 23E(2) clothes the High
Court with revisional jurisdiction both suo motu or an
application by an aggrieved person. Section 23F
provides that the stay of operation of the Order of
33
Eviction by the Authority or the High Court, shall not
enure for a total period of more than six months.
Section 23H is relevant and it reads as follows.
“Section 23H. Deposit of rent pending
proceedings for eviction or for revision. -
The provisions of Section 13 shall apply
mutatis mutandis in respect of an application
for recovery of possession of accommodation
under Section 23-A and in respect of
proceeding for revision under Section 23-E
against final order by the Rent Controlling
Authority under Section 23-C or under Section
23-D as they apply to a suit or proceeding
instituted on any of the grounds referred to
in Section 12:
Provided that no suit or proceeding for
eviction of the tenant is pending before any
Court at any of its stages in relation to the
same accommodation.”

23. As far as the proceedings, covered by the landlord,
not falling in Section 23J, but falling under Section
2(b), which defines the word “landlord” is concerned,
the Act contemplates the Authority being endowed with
certain powers of a Civil Court under Section 29. An
Appeal is provided to the District Judge or the
Additional District Judge from every Order of the
Authority. Another feature of the Act is that a Second
Appeal lies under Section 32, on grounds, which may be
34
described as being pari materia with Section 100 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as, ‘the CPC’, for short), as it stood prior to the
amendment in the year 1977. The argument of the
appellants is that the word “decree”, used in Section
13, is best appropriated to proceedings before the
Authority under Section 12, by way of the Suit by the
landlord defined under Section 2(b) and the decision
rendered by the Appellate Authority and the High Court
in further Second Appeal. The word “order”, according
to the appellants, in Section 13, is apposite to
describe the decision rendered under Chapter IIIA. We
must indicate that Section 31, which provides for an
Appeal to the District Judges or Additional District
Judge, speaks about an Appeal being maintainable from
every ‘Order’ of the Authority.
24. However, it is apposite to notice that the Act was
enacted in the year 1961. Section 12(1), which provides
for grounds of eviction of tenants, provides that no
Suit shall be filed in any Civil Court against the
tenant for his eviction except on any of the grounds
mentioned thereafter. Thus, it is not, as if, a Suit
35
for Eviction in a Civil Court, is not maintainable.
Section 28, however, provided for appointment of
Authority. The Collector, with the previous approval
of the State Government, can appoint an Officer not
below the rank of Deputy Collector, to be the Rent
Controlling Authority for the area in his jurisdiction.
As already noticed, the said Authority was to have the
same powers, as vested in a Civil Court, in regard to
certain matters. Therefore, in an area, where there is
no such Authority notified under Section 28, the LawGiver contemplated a Suit before the Civil Court. It
is in this context, apparently, that the law provided
that Section 13 contemplates Decree being passed for
eviction and protection under Section 13 being extended
in an Appeal from such Decree. In fact, in the cases
before us, the proceedings are suits, appeals under
Section 96 of the CPC and second appeals under Section
100.
25. What is, however, relevant from a reference to
Chapter IIIA, which provides for eviction on the
grounds of bonafide requirement, is that, vide Section
23H, Section 13 has been made applicable ‘mutatis
36
mutandis’. Section 23H makes Section 13 applicable, not
only in an application for recovery of possession under
Section 23A, but it also is made applicable in respect
of a proceeding for Revision under Section 23E against
a Final Order by the Authority under Section 23C and
Section 23D, as they apply to a proceeding instituted
under Section 12. It must be noticed that Chapter IIIA
was inserted vide the very same amendment (Act 27 of
1983), which also resulted in Section 13 being
substituted. In other words, Section 13, as
substituted, was intended to apply mutatis mutandis,
undoubtedly, to a Revision maintained against a Final
Order under Section 23C or Section 23D. Section 23C
contemplates an Order of Eviction, being passed against
the tenant, if the conditions in the said provision are
satisfied. Section 23F also contemplates a stay being
granted by the High Court in a Revision under Section
23E of the Order of Eviction. Therefore, when Section
13 is made applicable to a Revision filed against an
Order of Eviction under Section 23C, the Revision would
be a Revision filed by the tenant, who has suffered an
Order of Eviction under Section 23C. What is, however,
37
more important is that, under the scheme of Chapter
IIIA, that is the fast-track procedure, as it were,
contemplated for the special categories of landlords
falling under Section 23J, it provides only for
bonafide requirement as the ground for seeking
eviction. If eviction is sought, in other words, on the
ground of arrears of rent, it may be open to the
landlord to invoke the provisions of Section 12. The
special right, however, to invoke the shorter and
faster route to obtain an Order of Eviction, is
available to the landlord, falling under Section 23J,
only in respect of grounds of bonafide requirement. The
relevance of this lies in concluding that, by the
insertion of Chapter IIIA along with the substitution
of Section 13, and by virtue of Section 23H, making
Section 13 applicable even to the proceeding under
Chapter IIIA, when an Order for Eviction is passed
under Section 23C and the tenant challenges such an
Order of Eviction by a Revision, he is expected to pay
the amount, as provided in Section 13(1), during the
pendency of the Revision.
38
26. No doubt, in a proceeding under Chapter IIIA, the
Law-Giver has limited the operation of a Stay Order of
Eviction to the total period of six months.
27. As already noticed, as far as a proceeding
contemplated under Chapter III by the ordinary landlord
is concerned, if we may use that expression, falling
under Section 2(b), Section 13, as such, applies. We
have only attempted to divine the impact of Section
23H, to find that, even in a proceeding by the special
category of landlords, falling under Section 23J, and
what is more, where eviction cannot be sought under
Chapter IIIA, on the ground of arrears of rent, Section
13 applies even after the passing of the Order for
Eviction, when the matter is pending in a Revision.
This aspect helps to reveal the mind of the
Legislature, and the ambiguity shrouding its real
intention, is to some extent, effaced.
28. We may now proceed to finally interpret Section 13
as it is. Section 12(3) continues to grace the Statute
Book. Thus, in a proceeding under Section 12(1)(a),
viz., a petition seeking eviction on the ground of
39
arears of rent, the Act protects the tenant by
permitting him to deposit the amount in arrears, which
constitutes a ground for seeking eviction, in the first
place, in the manner provided in Section 13. As
explained by this Court in Sobhagyamal (supra), the
tenant, in default of payment of rent, gets a new lease
of life, despite the default being the ground for
eviction, to ward off the passing of an Order of
Eviction by virtue of Section 12(3). Undoubtedly, in
order that Section 12(3) apply, not only must the
tenant pay the amount in arears, which is the basis for
the application under Section 12(1)(a), but he must
continue to pay the amounts, which are further
mentioned in Section 13. Section 13(5), no doubt, again
must be read along with Section 12(3). Section 13(5)
interdicts the passing of the Decree or Order by the
Court for recovery on the ground of default of payment
of rent if compliance was made by the tenant of the
requirement under Section 13(1) or Section 13(2). The
Court is, however, authorised to allow costs. It is
clear that Section 13(5) is totally inapplicable in the
case where the ground of eviction is a ground other
40
than under the one in Section 12(1)(a). In other words,
Section 13(5) applies only in a case, where the
landlord invokes default in payment of rent, as a
ground for eviction. The argument of the respondentlandlord, therefore, is that this circumstance, along
with the use of the words, “for the period for which
the tenant may have made default”, in Section 13, would
indicate that the protection from eviction, is not
available unless the suit is made under Section
12(1)(a). To make it further clear, the argument is
that the Legislature has articulated the intention to
protect the tenant upon his paying the amount under
Section 13 only qua the tenant sued for eviction on the
ground of arears of rent. The landlord further argues
that Section 13(6) indicates that, if there is failure
on the part of the tenant to pay or deposit the amount
under Section 13, the Court is free to strike off the
defence and proceed with the hearing of the matter.
Section 13(6) has been interpreted by this Court, as
noted by us earlier in Shyamcharan Sharma (supra). As
held by this court, the Court has a discretion to
condone the default in payment of rent and extend the
41
time of payment of rent. Section 13(6) does not compel
the Court to order eviction of a tenant, found in
violation of Section 13. This view has also been
followed in Ram Murti (supra), as well.
29. The opening words of Section 13 provide that, on
a Suit or any other proceeding, being instituted by a
landlord on any of the grounds referred to in Section
12, the tenant is to deposit in Court or pay to the
landlord, the amount equal to the rent. Can it,
therefore, be contended that the words “any of the
grounds”, referred to in Section 12, is to apply only
to a situation where Suit or any other proceeding is
instituted by the landlord? To expatiate, after the
above opening words in Section 13, by virtue of the
substitution effected by Act 27 of 1983, can it mean
that the words “or in an Appeal or in any other
proceeding by a tenant against any Decree or Order for
his eviction”, is not to be read along with “on of the
grounds referred to in Section 12”? To put it in a
different manner, can it be said that the substituted
provisions of Section 13 contemplated that the Appeal
or any other proceeding by the tenant, must be in a
42
proceeding instituted only under Section 12(1)(a),
i.e., on the ground of arrears of rent, for the reason
that the construction of the provision, which consists
of an elongated sentence to which meaning cannot be
attached, except by bearing in mind the statutory duty
of the tenant to deposit the amount for the period for
which the tenant may have made default. In other words,
if the words “for the period for which the tenant may
have made default” is an indispensable requirement to
apply Section 13, then the substituted provisions,
extending the protection in an Appeal or other
proceeding by a tenant, would be confined to a
proceeding under Section 12(1)(a). In this regard, we
may also look for any inkling available in Section 13
for the proposition that Section 13 is attracted in an
Appeal or other proceeding by the tenant, on any of the
grounds under Section 12. In this regard, in
Sobhagyamal (supra), this Court, we may recapitulate,
has held as follows:
“Striking out the defence of the tenant,
on an application moved by the landlord, the
provision applicable in the Suit for
ejectment on any of the grounds mentioned
under Section 12, inclusive of under Section
43
12(1)(a) of the Act, whereas sub-Section (5)
of Section 13 would apply only when the Suit
is instated for ejectment on the ground of
arrears of rent under Section 12(1)(a) of
the Act.”
This would mean that Section 13 would apply even
if the ground of eviction is not one under Section
12(1)(a).
30. As we have already found, the words “Appeal or
proceeding, as the case may be”, were inserted in subSection (6) of Section 13 by Act 27 of 1983. This was
in keeping with the substitution effected in Section
13(1), whereby the words “or in any Appeal or any other
proceeding by a tenant, against any Decree or Order for
his eviction”, also came to be added. Therefore, the
legislative history tends to indicate that Sections
13(1) and 13(2) are to apply in any Appeal or other
proceeding against the Order or Decree of Eviction on
any of the grounds under Section 12.
31. Act 27 of 1983, inserted the words “or in any
Appeal or any other proceeding by a tenant against any
Decree or Order for his eviction”. The word “any” is
intended to convey a wide meaning. The Decree of
44
Eviction may be a Decree passed on any of the grounds.
It need not be confined to a Decree passed under Section
12(1)(a). This is also to be understood in the context
of the words “on any of the grounds referred to in
Section 12”, being used, preceded by the words in a
Suit or other proceeding instituted by the landlord.
32. The problem persists in the form of the logical
culmination of the command to the tenant in an Appeal
or other proceeding, against any Decree of Eviction,
to deposit the rent or pay for the period, for which
the tenant may have made default. Undoubtedly, in the
context of Section 12(1)(a) read with Section 12(3),
the words “for the period for which the tenant may have
made default”, is perfectly apposite. In other words,
when Section 12(3) provides that no Decree shall be
passed for eviction under Section 12(1)(a), if the
tenant makes the deposit or payment of the amount of
rent, under Section 13, it is intended to mean that,
even if the tenant has invited the wrath of Section
12(1)(a), he would be protected under Section 12(3),
if he complied with Section 13, made the deposit within
45
a period of one month or the extended period of the
service of summons and made further deposits/payment.
33. However, Section 13 clearly is intended to apply
in a Suit or proceeding instituted by the landlord on
any other grounds under Section 12. If that be so, the
words, “for the period, for which, the tenant may have
made default”, may not apply, as the tenant may not be
in default and no ground under Section 12(1)(a) may
even be pleaded. Therefore, in such a proceeding by the
landlord, the words, “for the period, for which, the
tenant may have made default”, pales into
insignificance and irrelevance. It would then mean
that, in a proceeding under Section 12, which does not
involve Section 12(1)a), or in other words, when there
is no default within the meaning of Section 12(1)(a),
the protection would be available to the tenant, only
if, he makes a deposit or payment for the period during
the pendency of the proceeding. In other words,
throughout the proceeding by the landlord, on any of
the grounds under Section 12, the tenant is obliged to
deposit the amount of rent. The failure to do so, would
attract Section 13(6) and it is open to the Court to
46
strike off the defence and proceed further in the
matter.
34. If that be so, in an Appeal or any other proceeding
by the tenant against an Order of Eviction, which does
not involve Section 12(1)(a), the intention of the LawGiver appears to be that the tenant, so described,
despite the Order of Eviction and the definition of the
word “tenant” in Section 2(i), is obliged to pay or
deposit the amount of rent under Section 13(1) or
Section 13(2), as the case may be, in the manner
provided, till the termination of the Appeal or
proceeding.
35. We may profitably appreciate the problem through
the prism of Section 23H, which we have already
adverted to. Section 23H was also inserted by Act 27
of 1983. Thereunder, the provisions of Section 13 is
to apply mutatis mutandis, inter alia, in respect of a
proceeding for Revision under Section 23E, against an
Order of Eviction under Section 23C, as they apply to
a Suit or a proceeding instituted on any of the grounds
referred to in Section 12. The words “mutatis
mutandis”, is a well-known legislative device, employed
47
for the purpose of adaptation of a law in an altered
context. We may only refer to the following exposition
in the Judgment of this Court Reported in Ashok Service
Centre and others v. State of Orissa12:
“17. … Earl Jowitt's The Dictionary of
English Law (1959) defines ‘mutatis
mutandis’ as ‘with the necessary changes in
points of detail’. Black's Law
Dictionary (Revised 4th Edn., 1968) defines
‘mutatis mutandis’ as “with the necessary
changes in points of detail, meaning that
matters or things are generally the same,
but to be altered when necessary, as to
names, offices, and the
like. Housman v. Waterhouse [191 App Div
850 : 182 NYS 249, 251] . In Bouvier's Law
Dictionary (3rd Revision, Vol. II), the
expression ‘mutatis mutandis’ is defined as
“[T]he necessary changes. This is a phrase
of frequent practical occurrence, meaning
that matters or things are generally the
same, but to be altered when necessary, as
to names, offices, and the like”. Extension
of an earlier Act ‘mutatis mutandis’ to a
later Act brings in the idea of adaptation,
but so far only as it is necessary for the
purpose, making a change without altering
the essential nature of the thing changed,
subject of course to express provisions made
in the later Act. …”
36. It must be remembered that Section 13 contemplates
proceedings under Section 12 and on any grounds
12 (1983) 2 SCC 82
48
thereunder. The impact of Section 23H, applying Section
13 mutatis mutandis, is that, since Section 12 is
inapplicable in a proceeding under Section 23A, wherein
the grounds are only of bonafide requirement, as
provided therein, Section 13, in its application under
Section 23H, would mean that the proceeding by the
landlord for eviction is on any of the grounds under
Section 23A. Equally, in the application of Section 13
to the Revision by the tenant against an Order under
Section 23C, the ground of eviction, can only be the
ground under Section 23A. In other words, in its
application to a proceeding under Chapter IIIA, in a
Revision by the tenant against an Order of Eviction,
Section 13 is intended to apply, even though, eviction
is not based on the ground under Section 12(1)(a). This
is for the reason that there cannot be an Order passed
under Section 23A on the ground under Section 12(1)(a),
as the same is inapplicable. Thus, in such a Revision
by a tenant against an Order under Section 23C, the
presence of the words in Section 13, “for the period
for which the tenant may have made default”, would not
become an insuperable obstacle. In other words, in such
49
a Revision, the law obliges the tenant to pay the rent
for the period, which may include the period, into
which, he may have fallen in arrears, before the filing
of the Revision and also for subsequent periods.
37. If this is the position in respect of the manner
in which Section 13 is intended to apply, even in a
proceeding under Chapter IIIA, having regard to the
wide words used in the newly substituted avatar of
Section 13, viz., “any Appeal or other proceeding by
the tenant against any decree”, the word “any” should
be read harmoniously with any of the grounds referred
to in Section 12, appearing earlier in Section 13.
Thus, even in an Appeal or other proceeding, Section
13 would apply, despite there being no ground for
eviction under Section 12(1)(a). The law was so enacted
by substitution in 1983, so that during any litigation
launched by the tenant against any Order of Eviction,
the landlord is assured of the amount which is
calculated at the rate of rent at which it was being
paid. Section 13(2) takes care of the situation where
there is a dispute relating to the amount of rent.
50
38. We must notice that the Act also does contemplate
the fixation of standard rent. Section 7 deals with
standard rent. It contemplates an increased standard
rent in case of a non-residential accommodation.
Section 8 provides for lawful increase of standard rent
in certain other cases. No doubt the respondent would
point out that after an order or decree of eviction is
passed no application may lie. Even accepting the
same, nothing stands in the way of the rent being
increased till then. Therefore, the Act, as a whole,
contemplated payment of rent in the manner provided in
the Act. If he fails to deposit the amount, the Appeal
or proceeding launched by the tenant, would be
imperilled and an adverse decision, resulting in
eviction, could follow, unless the Court extended the
time for payment of rent.
39. Section 13(1) of the Act is a unique provision,
the parallel of which in any other State Law, has not
been pressed into service before us by the respondent.
Section 15 of the Delhi Rent Control Act, 1958, pressed
before us, does not bear resemblance to Section 13(1)
51
of the Madhya Pradesh Act, after the substitution took
place in the year 1983.
THE PRINCIPLE IN ATMA RAM PROPERTIES (P) LTD. V.
FEDERAL MOTORS (P) LTD.13
40. The case arose under the Delhi Rent Control Act,
1958. An Order of Eviction was passed on the ground of
illegal sub-letting. In the Appeal by the tenant, the
Tribunal stayed the eviction subject to the tenant
depositing Rs.15,000/- per month, in addition to the
contractual rent. This direction was set aside by the
High Court. This Court took note of the definition of
the word “tenant” that it did not include the person
against whom an Order or Decree of Eviction has been
made. In this regard, we may notice that the definition
of the word “tenant” in Section 2(i) of the Act, under
which, the Appeals arise before us, also provides for
a similar definition. We may notice, in this regard,
paragraphs-17, 18 and 19 of Atma Ram Properties
(supra):
“17. In the Delhi Rent Control Act, 1958,
the definition of a “tenant” is contained
13 (2005) 1 SCC 705
52
in clause (l) of Section 2. Tenant includes
“any person continuing in possession after
the termination of his tenancy” [Section
2(l)(ii)] and does not include “any person
against whom an order or decree for eviction
has been made” [Section 2(l)(A)]. This
definition is identical with the definition
of tenant dealt with by this Court
in Chander Kali Bai case [(1977) 4 SCC 402]
. The respondent tenant herein having
suffered an order for eviction on 19-3-2001,
his tenancy would be deemed to have come to
an end with effect from that date and he
shall become an unauthorised occupant. It
would not make any difference if the order
of eviction has been put in issue in appeal
or revision and is confirmed by the superior
forum at a latter date. The date of
termination of tenancy would not be
postponed by reference to the doctrine of
merger.
18. That apart, it is to be noted that the
appellate court while exercising
jurisdiction under Order 41 Rule 5 of the
Code did have power to put the appellant
tenant on terms. The tenant having suffered
an order for eviction must comply and vacate
the premises. His right of appeal is
statutory but his prayer for grant of stay
is dealt with in exercise of equitable
discretionary jurisdiction of the appellate
court. While ordering stay the appellate
court has to be alive to the fact that it
is depriving the successful landlord of the
fruits of the decree and is postponing the
execution of the order for eviction. There
is every justification for the appellate
53
court to put the appellant tenant on terms
and direct the appellant to compensate the
landlord by payment of a reasonable amount
which is not necessarily the same as the
contractual rate of rent. In Marshall Sons
& Co. (I) Ltd. v. Sahi Oretrans (P)
Ltd. [(1999) 2 SCC 325] this Court has held
that once a decree for possession has been
passed and execution is delayed depriving
the judgment-creditor of the fruits of
decree, it is necessary for the court to
pass appropriate orders so that reasonable
mesne profits which may be equivalent to the
market rent is paid by a person who is
holding over the property.
19. To sum up, our conclusions are:
(1) While passing an order of stay under
Rule 5 of Order 41 of the Code of Civil
Procedure, 1908, the appellate court does
have jurisdiction to put the applicant on
such reasonable terms as would in its
opinion reasonably compensate the decreeholder for loss occasioned by delay in
execution of decree by the grant of stay
order, in the event of the appeal being
dismissed and insofar as those
proceedings are concerned. Such terms,
needless to say, shall be reasonable.
(2) In case of premises governed by the
provisions of the Delhi Rent Control Act,
1958, in view of the definition of tenant
contained in clause (l) of Section 2 of
the Act, the tenancy does not stand
terminated merely by its termination
under the general law; it terminates with
the passing of the decree for eviction.
With effect from that date, the tenant is
54
liable to pay mesne profits or
compensation for use and occupation of the
premises at the same rate at which the
landlord would have been able to let out
the premises and earn rent if the tenant
would have vacated the premises. The
landlord is not bound by the contractual
rate of rent effective for the period
preceding the date of the decree.
(3) The doctrine of merger does not have
the effect of postponing the date of
termination of tenancy merely because the
decree of eviction stands merged in the
decree passed by the superior forum at a
latter date.”
41. This Judgment has been followed by this Court in
State of Maharashtra and another v. Super Max
International Private Limited and others14. The case
arose under the Bombay Rent Act. In fact, in the said
case, the definition in Section 5(11) of the Bombay Act
was not pari materia with the definition in the Delhi
Rent Control Act and the Act in question. After an
exhaustive survey of the case law, which included Atma
Ram Properties (supra) and Satyawati Sharma (D) by Lrs.
14 (2009) 9 SCC 772
55
v. Union of India and another15, this court held as
follows:
“73. In an appeal or revision, stay of
execution of the decree(s) passed by the
court(s) below cannot be asked for as of
right. While admitting the appeal or
revision, it is perfectly open to the court,
to decline to grant any stay or to grant
stay subject to some reasonable condition.
In case stay is not granted or in case the
order of stay remains inoperative for
failure to satisfy the condition subject to
which it is granted, the tenant in revision
will not have the protection of any of the
provisions under the Rent Act relied upon
by Mr Lalit and in all likelihood would be
evicted before the revision is finally
decided. In the event the revision is
allowed later on, the tenant's remedy would
be only by way of restitution.
xxx xxx xxx
77. In the light of the discussions made
above we hold that in an appeal or revision
preferred by a tenant against an order or
decree of an eviction passed under the Rent
Act it is open to the appellate or the
Revisional Court to stay the execution of
the order or the decree on terms, including
a direction to pay monthly rent at a rate
higher than the contractual rent. Needless
to say that in fixing the amount subject to
payment of which the execution of the
15(2008) 5 SCC 287
56
order/decree is stayed, the Court would
exercise restraint and would not fix any
excessive, fanciful or punitive amount.
42. Therefore, the question would finally arise that
in a Second Appeal, filed by the tenant, against whom
an Order/Decree of Eviction is passed, on a ground,
other than under Section 12(1)(a), even after the
tenant complies with the requirement of Section 13 and
deposits the rent, as was being paid, whether the
Appellate Court, when approached by the appellantstenants, seeking a stay of the execution of the Decree
under Order XLI Rule 5 of the Code of Civil Procedure,
1908 (hereinafter referred to as, ‘the Code’, for
short), they could be asked to deposit an amount
representing a reasonable market value of the rent.
Undoubtedly, in the Act, the definition of the word
“tenant”, does not include a person against whom an
Order or Decree of Eviction has been passed. In the
said sense, the Act can be treated as similar to the
Delhi Rent Control Act. In other words, with the
Order/decree of Eviction being passed, the person who
was tenant till that point of time, ceases to be the
57
tenant. He would become an unauthorised occupant in the
words of this Court in Atma Ram Properties (supra). The
principle in Atma Ram Properties (supra), therefore,
would apply unless Section 13 poses an obstacle in the
path of the Appellate Court directing the payment of
the mesne profits by the appellants as a condition of
stay of execution.
43. In this case, undoubtedly, appellants have invoked
Order XLI Rule 5 of the CPC. It is in the said
Application that the High Court has granted a stay,
subject to the condition of payment of amount in a sum
of Rs.18,000/- per month. The landlady filed an
application seeking deposit of the rent which led to
the stay being conditioned. This amount has been
arrived at on the basis of the Report submitted by the
Authority. Undoubtedly, the tenancy relates back to the
year 1975. The rent canvassed by the appellants is
Rs.872/- per month and Rs. 622/- per month.
44. In Section 13 of the Act the law giver has given a
section heading ‘when a tenant can get benefit of
protection against eviction’. It is thereafter that the
provisions are enacted. Sub section 5 of Section 13
58
relates only to a suit in which the ground of eviction
is default of payment of rent. As far as Section 13 (6)
is concerned it deals with a situation where the tenant
fails to deposit or pay the amount under Section 13 of
the Act. Prior to Section 13 being substituted in the
year 1983 it contemplated that the court may strike out
the defence against eviction and proceed with the
hearing of the suit. It was this provision which was
interpreted in Shyamcharan Sharma (supra) to mean that
the court still has a discretion and is empowered to
grant extension of time to pay rent under Section 13.
By virtue of the substitution in the year 1983 in
Section 13 (6) in view of the addition of the words
‘appeal or proceeding as the case may be’, on the
failure of the tenant to deposit or pay the amount as
required by Section 13 the court is empowered to strike
out the defence against eviction is made applicable to
an appeal or proceeding by the tenant. An appeal and
proceeding can be disposed off which essentially means
that an Order of Eviction would ordinarily follow as
the appeal or other proceeding by the tenant is against
an Order of Eviction which is already passed.
59
45. Now, as far as a suit for eviction based on ground
other than Section 12(1)(a), viz., arrears of rent.
Section 13 expressly does not provide as to what is to
happen if the tenant complies with requirement of
Section 13 as distinct from the failure of the tenant
to comply with Section 13. In this case we are concerned
with the former namely what would be the position if
the tenant faithfully complies with the mandate of
Section 13 and has deposited/ paid the amount. There
is no express intention expressed by the law giver in
this regard in Section 13.
46. In this regard it is again relevant to look at what
the law giver is provided in Chapter IIIA. We say this
for the reason that Section 13 has been applicable
mutatis mutandis by virtue of Section 23H as we have
already noticed. However, Section 23F provides as
follows: -
“Section 23F. Duration of stay. - The stay
of the operation of the order of eviction
passed by a Rent Controlling Authority or
by the High Court shall not ensure for a
total period of more than six months.”
60
47. Therefore, this provision indicates that despite
payment being made by the tenant of the amount in terms
of Section 13 in a revision filed within the meaning
of Section 23H an order of stay of eviction may still
be necessary. In other words, ipso facto, the mere
payment of the amount in terms of Section 13 would not
shelter the tenant who has filed a revision referred
to in Section 23H from being proceeded against in
execution of the decree. The law giver has contemplated
an order of stay being passed in Section 23F with the
restraints regarding the duration of the stay order
which has been declared therein.
48. Thus, the payment of the amount mentioned in
Section 13 in a Chapter III proceeding by itself may
not result in a stay of the decree or Order of Eviction.
49. The further question would however arise that in
an appeal filed by the tenant against the decree or
Order of Eviction whether on a proper construction of
Section 13 of the Act, whether the Appellate Court can
impose any condition other than that of deposit of the
amount which no doubt is the rent which was being paid.
61
The other way to look at it which is what the landlady
wants us to do is to import in the principle enunciated
in Atma Ram Properties (supra).
50. We have already noticed the decision rendered by a
bench of 5 learned Judges of the Madhya Pradesh High
Court decided on 17.02.1977 in S.S. Harischandra Jain
and others (supra), at a point of time when Section 13
was in its erstwhile form. The Court held, inter alia,
as follows:
“(ix) In tenant’s appeal, application of
Section 13 is unnecessary because the
landlord can execute the decree and recover
rent, and if, stay is sought, condition of
payment of rent can be imposed. In case of
landlord’s appeal against dismissal under
Section 13 (5) the tenant will
automatically deposit, and go on
depositing, rent because of the deterrent
in Section 12(3). In landlord’s appeal from
dismissal on other ground, there is no
special equity in his favour. In case of
non-payment of rent his ordinary remedy of
a suit for recovery of rent is available to
him.
(xi) Section 13 is not a machinery for
realisation of rent as an alternative to a,
suit for recovery of rent. The object of
Section 13 is to put a check on the
unscrupulous tenant who would protract
litigation without payment of rent. That
62
purpose is served in the suit. But the
enquiry is reversed when the suit is
dismissed.”
(Emphasis supplied)
51. This view, as again noted, has been approved by
the still larger bench of the High Court reported in
AIR 1978 MP 143. Apparently, these judgements led to
the substitution of Section 13 in the year 1983 by way
of the legislative intervention and in an appeal or
other proceeding by the tenant against the decree or
Order of Eviction the duty to pay rent came to be
imported. Bearing in mind this legislative history
which can be said to be in recognition of exposition
of law by the High Court, could it be said that the
legislature contemplated the Appellate Court granting
stay of the decree of eviction subject only to the
condition that the amount which represented the rent
which was being paid is paid as a condition.
52. As we have seen, the actual protection which is
granted under Section 13 of the Act, is what is provided
in Section 13(6), in the cases at hand.
63
53. Does Section 13 have the effect of operating as a
stay of the Decree for Eviction in its own right? The
principal contention of the appellants is that the
principle in Atma Ram (supra) that upon an Order of
Eviction being passed, the erstwhile tenant ceases to
be a tenant and his possession becomes wrongful and,
therefore, he can be called upon to deposit mesne
profit, would not apply, having regard to the contents
of Section 13 of the Act. This is for the reason that
contrary to the definition of the word ‘tenant’ in
Section 2(i), Section 13 reintroduces the concept of
‘tenant’, even after the Order of Eviction is passed
and when the erstwhile tenant seeks to maintain an
appeal or other proceeding against the Decree or Order
of Eviction. He is called upon, furthermore, to deposit
the agreed rent. Once he is called upon to deposit the
agreed rent and he is treated as a tenant by the Law
Giver, by virtue of the unique provisions contained in
Section 13(1) of the Act, the principle in Atma Ram
(supra) would, therefore, not apply. In other words,
despite definition of ‘tenant’ in Section 2(i) of the
Act, excluding a person against whom an Order of
64
Eviction has been passed, he does not stand in the
shoes of a person in wrongful possession, it is
contended.
54. In fact, in Section 13, as far as reference to
rent is concerned, the words used are “an amount
calculated at the rate of rent, at which it was paid”.
The further expressions used are “a sum equivalent to
rent at that rate”. These expressions are used to
denote the amount payable by the person described as
tenant, both before the Order of Eviction is passed and
after the Order of Eviction, during the pendency of
appeal or proceeding, as the case may be. We are making
this observation for the reason that if the words “an
amount calculated at the rate, at which, it was paid
or a sum equivalent to the rent”, is understood as
describing the amount, which is not the rent as such,
but the amount, which, the person was obliged to pay
as a tenant, after the Order of Eviction is passed,
then, it could be said that, what is contemplated is
that, the amount directed to be paid, is treated as not
the rent as such, but the amount equivalent to the
amount or an amount calculated at the rate of rent.
65
Such an amount, being payable, may be reconcilable with
the Order of Eviction, putting an end to the tenancy
and erstwhile tenant becoming a person in illegal
possession. But herein, we may notice that the same
expression is used even for describing the amount
payable during the pendency of proceeding under Section
12. In other words, these words are applicable to
describe the amount payable at all points of time,
including the pendency of the suit, appeal or other
proceedings. To make it even more clear, both, at the
stage when landlord-tenant relationship exists and, at
the stage, when following an Order of Eviction, going
by the definition of ‘tenant’ in Section 2 of the Act,
the erstwhile tenant would cease to be a tenant, the
amount payable in Section 13 is described in the
similar manner. In fact, there is no case as such that
the amount which is paid by the tenant in Section 13
is anything but the agreed rent. However, for reasons
which follow, it will not advance the case of the
appellants.
55. As far as the aspect about the former tenant, even
after the Order of Eviction being referred to as a
66
tenant, even when he maintains an appeal against a
Decree/Order of Eviction is concerned, we would think
that it can be a legislative device to aptly describe
the person in question devised by the Legislature. In
this regard, the more important question is, whether
after the Order of Eviction is passed, the erstwhile
tenant would remain a tenant in law. The tenant begins
his innings ordinarily as a contractual tenant. In the
case of a contractual tenant, upon the expiry of the
lease, he is under the Transfer of Property Act and,
in accordance with the contract, duty-bound to vacate
the premises and deliver possession to the landlord.
Failure on his part to do so, would expose him to an
action for mesne profits, on the basis that his
continuance after the period and contrary to the
contract, would be wrongful. In the case of a statutory
tenant, which, undoubtedly, the tenant was, the mere
expiry of the contractual lease, does not result in the
tenancy coming to an end under the laws relating to the
statutory tenancy. It is with the Order of Eviction,
which is passed, that the erstwhile tenant ceases to
be the tenant. After the Order of Eviction is passed,
67
the law deprives the erstwhile tenant of his status of
tenancy. The definition of ‘tenant’, accordingly, in
Section 2(i) of the Act, is a legislative recognition
of this position. Now, the Act enables the filing of
appeal or other proceeding by the erstwhile tenant. The
law prescribes the period of limitation. Does it mean
that the possession of the erstwhile tenant or rather
his occupation of the premises, after the Order of
Eviction, is not wrongful? What will be the position,
if he prefers an appeal, after a long delay and delay
is condoned? Can it be said that during the period
delay, at any rate, that the erstwhile tenant sheds his
character as illegal occupant? We would think that with
the passing of Decree or Order of Eviction, the
erstwhile tenant, no longer, remains a tenant. He
continues to occupy the premises, which, in law, is
wrongful. Under the law, generally, continued
occupation of a tenant, after the expiry of the lease,
may not make him a trespasser, as his original entry
was lawful. For the purpose of mesne profits, however,
whether it be under the general law or under the Rent
Statute, once, the tenancy itself comes to an end,
68
which in the case of statutory tenancy occurs with the
passing of the Order of Eviction and, in the case of
the contractual tenancy, upon the expiry of the lease,
the possession of the erstwhile tenant, indeed, becomes
wrongful. The fact that the law permits the filing of
an appeal or other proceeding, will not detract from
the aforesaid position.
56. This position is self-evident from the decision
in Atma Ram (supra). The Judgment in Atma Ram (supra)
makes it clear that the erstwhile statutory tenant
would become an unauthorised occupant upon the passing
of the Order by the original Forum. This Court has
further held that fact that the Order of Eviction has
been challenged in an appeal or revision and it is
confirmed at a later point, will not enable the
erstwhile tenant to contend that he would remain a
tenant even after the Decree/Order of Eviction.
57. Once this position at law is kept in mind, the
impact of Section 13 of the Act, will become clear. We
have already noticed that the actual protection, which
is provided in Section 13 of the Act, as far as the
cases we are concerned with, is contained in Section
69
13(6) of the Act. Upon the tenant, as described in
Section 13, paying the amounts as provided therein, the
tenant is allowed to, inter alia, prosecute the appeal
or other proceeding. The failure to comply with Section
13, will result in the consequences, which are provided
therein. Since, we are concerned here with the
consequences of tenant acting in conformity of Section
13 of the Act, apart from noticing, what we have already
indicated, we would examine, whether it has the effect,
which is canvassed for by the appellants.
58. We are of the view that even though Section 13
does refer to the erstwhile tenant as a tenant and it
obliges him to deposit throughout the proceedings, the
amounts, which can be treated as the rent being paid,
which would be contractual rent or even the rent fixed
as the standard rent, this does not, by itself, alter
the effect of the Decree/Order of Eviction passed by
the Court, by which, he stood deprived of the status
of a tenant. The filing of an appeal or other proceeding
by the tenant, does not make the Decree inexecutable.
The preferring of an appeal or other proceeding, would
not bring about a stay of the proceedings based on the
70
Decree or Order of Eviction. The payment of the amounts
under Section 13(1) or Section 13(2) of the Act, does
not, by itself, bring about the stay of the Decree or
Order of Eviction. The net result is, the principle in
law and, as recognised in Section 2(i) of the Act, and,
as interpreted in Atma Ram (supra), that with the
passing of the Order of Eviction by the Court, the
possession of erstwhile tenant, becoming wrongful, will
apply. By making the payments, contemplated in Section
13(1) or Section 13(2) of the Act, the erstwhile
tenant, who stood deprived of the status of a tenant,
does not regain the said status by mere reason of the
fact that in Section 13 of the Act, he is referred to
as the tenant. The position of the erstwhile tenant
under the Act, going by the definition in Section 2(i)
of the Act, will continue to hold the field, even after
an appeal or other proceeding is maintained by him.
Therefore, Section 13 of the Act, in our view, despite
the unique provision contained therein, does not affect
the position at law, which stands declared in Atma Ram
(supra). Undoubtedly, in keeping with the view
expressed by the larger Bench decisions of the High
71
Court, which we have referred to, the Legislature
wanted to ensure that even during the appeal filed by
the tenant, inter alia, he would continue to pay the
agreed rent.
59. The erstwhile tenant, such as the appellants in
these cases, despite making payment, in accordance with
Section 13 of the Act, would not be protected from
being evicted in terms of the Decree/Order of Eviction
during the pendency of the appeal or proceeding. It is
open to the appellant, inter alia, in challenging the
Decree/Order of Eviction to seek stay of the
Decree/Order of Eviction. It is then that the Appellate
Court can exercise its powers under Order XLI Rule 5
of the CPC.
60. We have found reinforcement in Section 23F of the
Act falling in Chapter IIIA, which also contemplates
Orders of Stay being passed, even though Section 13 has
been made applicable by virtue of Section 23H. As
regards the power of the Appellate Court, to grant a
stay, it is clear that it is open to the Appellate
Court, to impose such condition, as it thinks fit. It
can issue directions, as held by this Court in Supermax
72
International (supra). Once we proceed on the basis
that with the Decree of Eviction being passed, the
erstwhile tenant becomes an unauthorised occupant and
he makes himself liable to pay mesne profits for his
continued occupation, such an erstwhile tenant can,
indeed, be called upon to pay mesne profits.
Undoubtedly, there is power with the Appellate Court,
in this regard.
61. We have, no doubt, noticed the view taken by the
larger Bench of the High Court (which, in fact, paved
the way for the substitution of Section 13 in the year
1983) that the Court, after finding that Section 13,
with which it was concerned, did not contemplate any
duty on the part of the tenant to deposit the agreed
rent, in an appeal filed by him, did observe that in
such a scenario, it will be open to the landlord to
execute the Decree and if the tenant files an
application under Order XLI Rule 5 of the CPC, the
tenant can be asked to deposit the rent. No doubt, the
legislative intervention in 1983 through substitution
of Section 13, may have been inspired by the judicial
exposition and, therefore, one of the principles of
73
interpretation being that the Legislature must be
treated as having in mind the law as interpreted by the
Court to be implemented, thus, it could be urged that
when an application is filed under Order XLI Rule 5,
even after the substitution of Section 13, when the
tenant is called upon to deposit the agreed rent, then,
even in the matter of imposing condition under Order
XLI Rule 5, the tenant cannot be worse off than when
Section 13 was in its earlier avatar. In other words,
with the deposit of the agreed rent, there would be no
occasion to deposit any further amount, even under
Order XLI Rule 5. We must, however, bear in mind the
fact that the law, as has been declared in Atma Ram
(supra), and as has been followed in Supermax
International (supra), in the manner already referred
to. That is, with the Decree of Eviction being passed,
the erstwhile statutory tenant becomes an unauthorised
occupant. The fact that the law permits the defendant
to file an appeal or to take other proceedings, will
not clothe him with rights as a tenant. The fact that
the finality of the Decree of Eviction is attained at
a later stage, will not be sufficient to extricate him
74
from his position as an unauthorised occupant in the
interregnum. This has the inevitable consequence that
during such interregnum, the erstwhile tenant, being
in the position of an unauthorised occupant, he becomes
liable to pay mesne profits. Once this position is
clear, then, the necessary corollary is, even after the
substitution of Section 13, it would be open to the
Appellate Court to impose the condition that appellant
seeking to contest the Decree of Eviction, shall
deposit a reasonable sum, which is not to be limited
to the agreed rent. This position is also better
understood in the light of the plight of the landlords,
who are forced to wait for long, the realisation of the
fruits of the Decree for Eviction, which they have
obtained. In fact, this aspect, as to the entitlement
of the landlord for an amount in excess of the agreed
rent, in the light of the Decree of Eviction, as such,
was not considered by the larger Bench of the High
Court. At any rate, in the light of the Judgments of
this Court, there cannot be any dispute about the
principle that upon a Decree of Eviction being passed,
the erstwhile tenant becomes an unauthorised occupant
75
and remains one thereafter during the entire
proceedings. The fact that there is power to fix
standard rent cannot affect this position. In fact, the
respondent would point out that after the eviction is
ordered even the power to fix standard rent ceases as
the tenancy comes to an end.
62. It is undoubtedly true that the existence of power
under Order XLI Rule 5 of the CPC, is not to be confused
with the exercise of its power by an Appellate Court.
That there is power with the Appellate Court, may not
enable it to Order any unreasonable amount or reach a
windfall to the landlord. The power is to be exercised
on a careful consideration of the facts of each case.
It will include the quantum of agreed rent, which the
tenant is paying under Section 13 of the Act. It will
consider whether the said sum is the result of any
fixation of standard rent. If so, what is the point of
time, at which, the agreed rent was arrived at, the
nature of the premises and all other relevant facts.
It may include a case where the Appellate Court, on a
perusal of the impugned Judgment, is convinced, prima
facie, no doubt, that the Decree for Eviction is
76
palpably insupportable, in which case, it may grant a
stay, without calling upon the tenant to pay any sum
in excess of amount fixed in Section 13 of the Act.
63. We are unable to accept the appellants case that
Section 13 of the Act, being a special law, the power
under Order XLI Rule 5, cannot be exercised to direct
deposit or payment of mesne profits. Compliance with
Section 13 by the appellants, does not, as found by us,
amount to a stay of the Decree for Eviction. The power
of the Appellate Court to impose conditions for staying
the Decree, cannot be confined by the dictate in
Section 13 of the Act, to the appellants/tenants, to
deposit the agreed rent, particularly, having regard
to the time consumed in litigation and, more
importantly, the impact of the Decree of Eviction,
depriving the appellant of his status as a tenant.
64. The upshot of the above discussion is that we
reject the contention of the appellants that Section
13 of the Act will detract from the principle in Atma
Ram (supra) and Supermax International (supra) being
available to the cases under the Act.
77
65. Coming to the facts, the rent being paid for 100
square feet of non-residential accommodation by one of
the appellants is Rs.622/-, fixed in 1975. In the other
case, the rent canvassed by the appellant, as being the
agreed rent, was a monthly rent of Rs.847/-, fixed in
the year 1975. The premises in question is also nonresidential and it consists of 150 square feet. There
is no reference to the rent being fixed in proceedings
for fixing the standard rent. The Suit was filed in the
year 2009. The Decree for Eviction was passed in the
year 2013. The First Appellate Court dismissed the
appeal filed by the appellants on 25.03.2014. The
Second Appeal was filed in the year 2014. The impugned
Orders came to be passed on 17.03.2020 and 25.08.2021
at the stage of second appeal when two courts have
found against the appellants. The amount has been fixed
at Rs.18,000/- per month. The amount has been fixed
on the basis of the Report submitted by the Rent
Controlling Authority, who was asked to report
regarding the market rate of the accommodation in
question. The complaint of the appellant is that the
Rent Controlling Authority has tendered its Report and,
78
while doing so, adequate opportunity was not provided
and the materials placed were not considered and that
the amount is unreasonable. It is said to be based only
on the Panchnama prepared by the Revenue Officer. The
High Court has found that the premises are located in
a famous commercial place and the rent of Rs.847/- per
month was fixed in the year 1975.
66. We do not think that the appellants should be
permitted to challenge the quantum, once we have
answered the legal issues flowing from Section 13,
against the appellants. It would appear from the
written submission that the appellants have deposited
certain sums in execution of the orders. The
appellants will be entitled to adjust the said amount
in complying with the impugned orders. The amount of
Rs.18000/- will subsume the amount paid/payable under
Section 13 of the Act.
67. We may, however, notice the following views
expressed by this Court in Supermax International
(supra):
“79. Before concluding the decision one
more question needs to be addressed: what
79
would be the position if the tenant's
appeal/revision is allowed and the eviction
decree is set aside? In that event,
naturally, the status quo ante would be
restored and the tenant would be entitled
to get back all the amounts that he was made
to pay in excess of the contractual rent.
That being the position, the amount fixed
by the court over and above the contractual
monthly rent, ordinarily, should not be
directed to be paid to the landlord during
the pendency of the appeal/revision. The
deposited amount, along with the accrued
interest, should only be paid after the
final disposal to either side depending upon
the result of the case.
80. In case for some reason the court finds
it just and expedient that the amount fixed
by it should go to the landlord even while
the matter is pending, it must be careful
to direct payment to the landlord on terms
so that in case the final decision goes in
favour of the tenant the payment should be
made to him without any undue delay or
complications.”
68. Thus, in the facts of this case, we would think
that the direction to pay the entire amount, may
require modification. Equally, we are of the view that
some time must be granted to deposit the amount.
69. Accordingly, in modification of the impugned
Orders, we order as follows:
80
a. Appellants are granted five weeks to deposit the
entire amount in terms of the impugned orders after
adjusting the amounts already deposited/paid on
the basis of the orders of the execution court.
The amounts will also subsume the amounts
paid/payable under Section 13 of the Act.
b. We further order that the respondent in the appeals
shall be permitted to withdraw the rent at the rate
of Rs.10,000/- per month from the amount which is
deposited;
c. The respondent shall be permitted to withdraw at
the rate of Rs.10,000/- per month from the amount
to be deposited by the appellants, on such terms
to be fixed by the High Court;
70. Save as aforesaid, we affirm the impugned Orders.
The appeals are partly allowed as above. There will be
no order as to costs.
………………………………………………………………………J.
 (K.M JOSEPH)
 ………………………………………………………………………J.
 (PAMIDIGHANTAM SRI NARASIMHA)
NEW DELHI;
FEBRUARY 22, 2022.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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