T.N. Singh, J.
1. On admitted facts, defendant/appellant has raised a short, but important question of law in this second appeal. Decrees passed by two Courts below, it is contended, suffer jurisdictional incompetence and must be set aside on that account.
2. In the opening paragraph of its judgment, the lower appellate Court has focussed on the crux of the controversy. The four-fold entitlement of the plaintiffs accepted by the trial Court in passing decree in that regard is set out. In title suit No. 78/81 which plaintiffs had instituted for defendant's eviction from the suit-house, a preliminary decree was passed on 9-4-1965 directing, inter alia, that defendant should hand over vacant possession of the suit house to the plaintiffs latest by 8-7-1965 and that on possession being so delivered to the plaintiffs, they would be entitled to pray for mesne profits on paying court-fees in that regard and obtain decree for that on enquiry into their claim in that regard being completed.
2-A. Admittedly, the defendant delivered possession of the suit house within the period allowed and it is also admitted that rent payable for the suit premises at the rate of Rs. 35/- per month was also deposited by the defendant upto 5-8-1986 and that was withdrawn by the plaintiffs. The claim of the plaintiffs for mesne profits laid at the rate of Rs. 150/- per month for the period between 31-8-1960 and 4-8-1965 was, however, accepted by the trial Court and that decision, the lower appellate Court confirmed by the impugned judgment and decree. In doing so, the courts evidently accepted plaintiff's claim that defendant's tenancy was determined on 31-8-1960 in terms of notice under section 106, Transfer of Property Act, for short, the T.P. Act served on the defendant by the plaintiffs in that regard.
3. What appears clear to us is that the courts below eiled to appreciate the correct legal postition in the context of M.P. Accommodation Act, 1961 for short, the 'Rent Control Act' or the 'Act'. The suit house being situate within municipal limits of Guna town, the provisions thereof ought to prevail against those of the T. P. Act. True, the suit was filed on 29-9-1961 and the tenancy was created even prior to that. But that would not, for reasons to follow, disentitle the defendant to claim protection of the Rent Control Act to nonsuit the plaintiffs as regards their claim for mesne profits.
4. In the impugned judgment, reference is made to the provisions of Order XX, Rule 12, Code of Civil Procedure, but that provision has to be read along with section 2(12), Civil Procedure Code which is extracted:
' 'mesne profits' of property means those profits which the person in wrongful possession of such property actually, received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession'.
5. According to Order XX, Ruie 12, in a suit for recovery of possession of immovable property, the Court may pass a decree 'for the mesne profits or directing an inquiry as to such mesne profits and the inquiry may relate to the period commencing from the institution of the suit until the delivery of possession of the suit property to the decree-holder. However, the question is, how and to what extent the jurisdiction of the court trying plaintiffs' suit was impaired by the impact of the provisions of the Rent Control Act. This question has dual aspects which may be analysed.
6. Both aspects of the question have to be treated, however, with reference to the crucial question of inter-action between the provisions of the T. P. Act and the Rent Control Act. Seven learned Judges of the Summit Court in Dhanapal Chettiar's case, AIR 1979 SC 1745, speaking through N. L. Untwalia, J. surveyed different Rent Control Acts enacted in the country and considered the impact thereof on the provisions of the T. . Act. Indeed, provisions of sections 105, 106, 107 and 108 as also 111, T. P. Act were analysed and their Lordships accepted the position that the concept of 'statutory tenant' evolved under the 'State Rent Acts' made it necessary to hold that those enactments made a 'serious encroachment in the field of freedom of contract' and that the landlord is not permitted to 'snap his relationship with the tenant merely by his act of serving a notice to quit on him'. Proceeding further, they said, 'in spite of the notice, the law says that he continues to be a tenant and he does so enjoy all the rights of a lessee and is at the same time deemed to be under all liabilities such as payment of rent etc. in accordance with the law'. The decision had two precursors - Chander Vali's case, AIR 1977 SC 2262 and Shyam Charan's case, AIR 1977 SC 2270 and it is happy coincidence that in those cases the question mooted for decision in the instant appeal came up generally for their Lordships' consideration. Indeed, plaintiffs'/respondents' counsel relied on Shyam Charan (supra), but that decision, on facts, is distinguishable.
6-A. In Shyam Charan (supra), the contention that the Rent Control Act had no retroactivity was repelled because of the definition of the term 'tenant' in section 2(1) of the said Act, but it was still held that the lease as also the institution of the suit, in that case, were anterior to the Rent Control Act and were governed by the predecessor Act, namely, the Rent Control Act of 1965. Because Jairam Theatre, the purview of the 1965 Rent Control Act having excluded leases for such accommodation from the purview of the Act in express terms (as per section 2(1 )(d) of that Act), the tenant/defendant could not validly defend claim for mesne profits invoking the aid of the Rent Control Act. In the instant case, that position does not obtain on facts. In the instant case, the suit premises was let out to the State Government for housing therein its Education Department. I have no doubt that on facts, Chander Vali's case (supra) is a close parallel and the ratio thereof applies in full force to the facts of the instant case. It was held in that case having regard to the provisions of sections 2(1), 12(1) and 13(1) of the Rent Control Act, that the defendant was not liable for damages or mesne profits for the period from termination of the lease to the passing of the decree because he was a 'statutory tenant' and his occupation had become wrongful only from the date of the eviction decree. Be it noted that lease in that case was created in the year 1961 when the Rent Control Act was not enacted and indeed, its predecessor enactment of 1965 even had not come on the statute book. Evidently, in both cases, their Lordships attached primal importance to Control Act to decide the controversy in both cases arising during the pendency of the suit when the Rent Control Act had come on the statute book. The term 'tenant', it was noted, embraced within its ambit even a person who is 'continuing in possession of the accommodation after the termination of his tenancy, whether the said termination was before or after the commencement of the Act'. In both decisions, Untwalia, J. spoke for the Court, in Chander Vali and Shyam Charon (supra) and, as noted earlier, his Lordship also spoke for the Court in Dhanapal Chettiar (supra).
7. Reference may be profitably made in this connection to a Five-Judge Bench decision of the Apex Court in Fateh Chand, AIR 1963 SC 1405, because in that case their Lordships had an occasion to deal with the provisions of section 2(12) and Order XX, Rule 12, Civil Procedure Code. It was observed that a person in wrongful possession of immovable property has to pay compensation on the basis of profits he actually received or with ordinary diligence might have received. Because Dhanapal Chettiar (supra) has taken the view that the State Rent Act can validly override the provisions of the T.P. Act and enact provisions to the contrary, in my opinion, it is examinable if under the Rent Control Act realisation of mesne profits is permitted expressly or impliedly and for that matter, it is examinable also if claim in that regard is interdicted expressly or impliedly. As per section 5 of the said Act, the entitlement of the landlord is restricted to recover from the tenant only 'standard rent' for the accommodation in possession of the tenant. What is more relevant, however, is section 6(2) which I extract: -
'6. Unlawful charges not to be claimed or received....
(2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or sub-tenancy of any accommodation -
(a) claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever, in cash or kind, in addition to the rent;'
Legislature, in my opinion, made its intention clear that even if the statutory tenancy continues by operation of law, notwithstanding landlord's legal steps to recover possession of the tenanted premises, he is debarred from claiming any amount as compensation for that exigency. Of the expressions emphasised in the above extract, it is necessary to doubly stress relevance of use of the words 'any sum' and 'any consideration whatsoever' to justify the view taken.
8. The primacy of the statutory mandate of section 13 of the Act needs also to be underscored in this connection. When a tenant does everything which he is required to do by the statutory provision by continuing to pay rent during the pendency of the suit, it is difficult to take the view that his possession of the suit premises can be said to be 'wrongful' in any manner. As held in Fateh Chand (supra) mesne profits can be decreed in terms of section 2(12) and order XX, Rule 12, Civil Procedure Code only when any person is in 'wrongful possession' of any immovable property as he has to pay compensation for the wrongful act. Peaceable and peaceful possession by a tenant of a premises exercising the rights in regard thereto, of a 'statutory tenant', by complying with the provisions of the relevant Rent Control Act affords him sufficient protection against any claim for damages even when the claim is as respects his unauthorised possession, inasmuch as the statutory tenant's possession does not become unauthorised on account of his refusal to vacate the premises at the bidding of the landlord. As held by this Court in Lachhobai Rathore, 1989 MPRCJ 23 - 1988 JLJ 213, section 13(5) of the Rent Control Act extends the protection against eviction to the statutory tenant upto the stage of execution. Thereunder, the landlord's claim against tenant for compensation in terms specified therein in respect of the eventuality contemplated thereunder is expressly envisaged to accord with the scheme and the express provisions of the Act. Even at the execution stage, decree for eviction on the grounds of non-payment of rent by tenant cannot be enforced on his making up that default in terms of the provisions of sub-section (1) or (2) of section 13, but in that case, the Court is invested expressly with the jurisdiction to 'allow such costs as it may deem fit, to the landlord'. That provision was evidently made to pre-empt any separate claim for mesne profits. For belated payment of rent the landlord's loss was meant to be compensated by an order for 'costs'.
9. What has to be made clear in this connection is that jurisdiction of the Civil Court to grant decree for mesne profits under Order XX, Rule 12, Civil Procedure Code arises when the suit for recovery of possession of any immovable property is decreed. Accordingly the question of entitlement of the palintiffs and of their right to invoke court's jurisdiction to pass decree for mesne profits has to be decided at the time of passing such a decree. Evidently, the law which impairs in any manner court's jurisdiction or plaintiffs' entitlement in that regard, on that date, must be considered before such a decree is passed. As discussed above, the overriding effect of section 6(2)(a) of the Rent Control Act, read with section 2(1) of that Act, having seriously affected plaintiffs' claim for mesne profits, the courts below acted without jurisdiction in decreeing that relief. Needless to add further that the claim of the plaintiffs could be valid only on the basis of sections 106 and 111 (b) of the T.P. Act, but as a 'statutory tenant', the defendant was not required to comply with the terms of the notice served on him under section 106, T.P. Act and his lease could not have been determined in terms of that notice by force of section 111 of the T.P. Act. Defendant's possession of the suit premises until his eviction was ordered under section 13(5) of the Rent Control Act, immunized him against any claim for mesne profits.
10. For all the foregoing reasons, I have no doubt that in the instant case, courts below acted without jurisdiction in passing decree for mesne profits against the defendant. The suit premises had been vacated within the period allowed in the decree and till the date of occupation of the premises, during trial of the suit, the defendant had discharged its statutory obligation under section 13(1) of the Rent Control Act and all rent due payable by him till vacant possession of the suit premises was made over to the plaintiffs had been duly deposited, and withdrawn by the plaintiffs.
11. Although at the Bar, other decisions are cited, it is not necessary to examine them because of the view taken as above. To do justice to counsel's labour, I may still, however, mention the same - Bhagwandas, AIR 1953 Nag 186; Naraindas, 1985 JLJ SN 59. Reliance on Punjab National Bank's, AIR 1987 SC 48, by respondent 3 is obviously misconceived. In that case, no question of mesne profits came up for consideration. In terms of the provisions of section 14(1)(k) of the Delhi Rent Control Act, the tenant was penalised for deviation of user. The order of eviction against him was set aside, on the condition of his paying higher rent. The eviction was sought on the ground that the premises had been let out for residential purpose, but the tenant had put it to commercial use.
12. In the result, the appeal succeeds and is allowed. The judgment and decree passed by the two courts below, impugned in this appeal, are set aside; and the plaintiff's claim for mesne profits stands dismissed. However, in the facts and circumstances of the case, I make no order as to costs.