Full Judgment
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Second Appeal No.894 /1996 Lalji & 2 Others Vs. Deepak Kumar & 2 Others Counsel for the appellants : Shri M.L. Jaiswal, Senior counsel with Shri K.K.Gautam, Advocate. Counsel for the respondents : Shri Adil Usmani, Advocate. Present : Hon’ble Mr. Justice Alok Aradhe
JUDGMENT
(09.10.2 012) This appeal is by the defendants, which was admitted on the following substantial question of law:- “Whether on the facts and in the circumstances of the case, the first appellate Court was justified in granting a decree for ejectment on the ground of Section 12 (1)(a) of the M.P. Accommodation Control Act even when the entire rent was deposited and application for extension of time/condonation of delay, was filed before the appellate Court?.
2. The facts giving rise to filing of the appeal briefly stated are that the plaintiff filed the suit on the ground that he is owner of suit shop which was let out to defendants on a monthly rent of Rs.250/- on 15.6.1984. It was pleaded that the defendants are in arrears of rent for a period from 15.7.1986 to 15.7.1987, and since October, 1986, the defendants have not used the suit shop. The suit shop is in dilapidated condition and the repairs in the same cannot be 2 S.A. No.894/1996 carried out without getting the accommodation vacated. Accordingly, the suit for eviction was filed.
3. The defendants filed the written statement in which interalia it was denied that the suit shop was let out to them on monthly rent of Rs.250/-. It was pointed out that the rent of suit shop was Rs.200/- per month, and on 3.9.1985 as well as on 8.8.1986 a sum of Rs.1575 and 2025 was deposited as rent. The plaintiff demanded rent at the rate of Rs.300/- per month from July, 1986. Though defendants tendered rent however, the plaintiff refused to accept the rent. It was denied that the suit shop is in dilapidated condition.
4. The trial Court vide judgment and decree dated 4.5.1994 held that defendants are tenants of plaintiffs in respect of the suit shop on monthly rent of Rs.225/-. It was further held that the suit shop is not in dilapidated condition. The trial Court also found that the plaintiff was unable to prove that despite notice, the defendants did not tender arrears of rent. However, the plaintiff was found entitled to receive rent to the tune of Rs.446.66.
5. Being aggrieved by the decree, the plaintiff preferred an appeal which was registered as First Appeal No.17-A/1994 whereas the appeal preferred by the 3 S.A. No.894/1996 defendants was registered as First Appeal No.16-A/1994. Both the appeals were decided by the Appellate Court by a common judgment dated 20 t h September, 1996. The Lower Appellate Court interalia held that the defendant No.1 namely Prakash Chand has admitted his signature on the agreement for rent (Ex.P/13). It was further held that the notice Ex.P/3 was sent demanding arrears of rent and the trial Court itself has found that defendants were in arrears of rent for a period from 15 t h July, 1986 to 15 t h July, 1987. Accordingly, the decree under section 12 (1)(a) of the M.P. Accommodation Control Act, 1961 (hereinafter in short referred to as “the Act”.) was granted by the Lower Appellate Court however findings of the trial Court on the remaining issues was affirmed.
6. Learned Senior Counsel for the appellants submitted that the notice Ex.P/3 demanding arrears of rent was sent by registered post which was received back with the acknowledgment that the defendants have refused to accept the same. In order to prove the service of notice the postman was not examined and therefore, the service of notice demanding arrears of rent cannot be held to be proved. It was further submitted that the appellants had deposited arrears of rent and therefore, the delay in depositing the arrears of rent ought to have been condoned by the Lower Appellate Court. 4 S.A. No.894/1996 7. I have considered the submissions made by the learned counsel for the appellants and have perused the records. It is pertinent to mention here that it not the case of the defendants that their address on which notice Ex. P/3 was sent by the plaintiff was incorrect. Rule 15 of the M.P. Accommodation (Control) Rules 1966 provides that the notice under the provisions of the Act can be sent by registered post. It is well settled in law that in case any acknowledgment with regard to service of notice is received back with the endorsement the same is refused to be accepted by the addressee, in such a case presumption shall be drawn, unless contrary is proved that the same has not been duly served. The defendants have not led any evidence in rebuttal to prove that notice was not received by them therefore, the Lower Appellate Court has rightly held that notice Ex.P/3 was duly served. The defendants have neither complied with the provision of section 13(1) of the Act not tendered rent on the receipt of notice demanding arrears of rent therefore, the Lower Appellate Court has rightly held that defendants are not entitled to the benefit of Section 12(3) of the Act and has rightly granted decree under section 12 (1)(a) of the Act. The Lower Appellate Court has assigned valid and cogent reasons in paragraph-49 and 50 of its judgment for rejecting the application filed by the defendants for condoning the delay in depositing the rent. It has been held that the defendants are chronic defaulters and 5 S.A. No.894/1996 committed defaults in complying with the section 13 (1) of the Act even during the pendency of proceeding pending before the trial Court as well as the Lower Appellate Court. For the aforementioned reasons, the substantial question of law framed by this Court is answered in affirmative and against the appellants 8. In result, the appeal fails and is hereby dismissed. (Alok Aradhe) Judge RC