Judgment:
R.S. Garg, J.
1. The appellant-defendant, being aggrieved by the judgment and decree dated 12-12-1986, passed in regular Civil Appeal No. 59-A of 1984, passed by the learned Additional District Judge, Bilaspur, a Camp Janjgir, confirming the judgment and decree dated 28-7-1983, passed in Civil Original Suit No. 82-A of 1980, by the Civil Judge, Class II, Janjgir, has preferred this second appeal against the order of his eviction on the ground of Section 12(l)(a) of the M. P. Accommodation Control Act.
2. The plaintiff filed a suit for eviction of the defendant, pleading that the defendant was the tenant of the plaintiff on monthly rental of Rs. 170/-. The defendant did not pay rent for the period between June, 1977 to May 1978 and, as such, was in arrears. On 19-6-1978, notice of demand was given to the defendant but despite that he did not deposit rent with the plaintiff. The plaintiff was called upon to file civil suit No. 73-A of 1978, which was decreed in favour of the plaintiff under a compromise and the defendant had agreed to pay monthly rent at the rate of Rs. 200/- per month with effect from 1-11-1979. The decretal rent amount could be recovered from the defendant only in execution of the decree. The defendant did not pay rent from 1-11-1979 to October 1980 at the rate of Rs. 200/- per month and, therefore, the plaintiff filed the present suit.
3. The defendant contended that the earlier compromise was the result of pressure and coercion and the same is not binding on the defendant. He also submitted that the defendant has already instituted proper proceedings before the Rent Controlling Authority for fixation of standard rent and as the defendant was ready and willing to pay rent at the rate of Rs. 80/- per month, the plaintiff with a mala fide intention has filed the suit therefore, the suit is liable to be dismissed. He admitted service of the demand -notice.
4. The trial Court, after hearing the parties, came to the conclusion that the plaintiff has made out a case for eviction under the provisions of Section 12(l)(a) of the Act and accordingly granted a decree in favour of the plaintiff. The defendant preferred an appeal. The learned first appellate Court confirmed the finding of the trial Court and dismissed the appeal. Hence this appeal has been filed by the defendant-tenant, which has been admitted on 2-4-1987 on the following substantial question of law :-
'Whether the Courts below erred in law in refusing further time to the appellant to deposit the arrears of rent, thereby striking out the defence of the appellant?
5. It was submitted by the Counsel for the appellant that the order of the Rent Controlling Authority under which the standard rent was fixed, was challenged by the landlord before the first appellate Court which had set aside the order passed by the Rent Controlling Authority. Misc. Appeal No. 42 of 1987 was filed by the appellant-defendant before this Court and this Court allowed the appeal and remanded the matter back to the first appellate Court for reconsideration. It was also contended that when the matter in relation to the standard rent was pending before the competent authority, then, under these circumstances, a decree under the provisions of Section 12(l)(a) could not have been passed or in any case, till final disposal of the proceedings regarding fixation of standard rent, the civil suit ought to have been stayed under the inherent powers of the Court. Replying the above arguments, it was contended by the learned Counsel for the respondent that in view of the compromise decree, the plaintiff is entitled to recover the rent at the rate of Rs. 200/- per month and the defendant cannot challenge the quantum of rent. It was also contended that the civil Court would be bound by the order passed by the learned Rent Controlling Authority and so long as there is no final order, the suit could certainly proceed.
6. Section 12 of the Act provides that no suit shall be filed in any civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds, namely :-
(a) that the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Section 13(1), as it stood prior to its amendment reads as under :-
'On a suit or proceedings 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 writ of summons 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 to pay to the landlord an amount calculated at the rate of rent of which it was paid for the period for which the tenant may have made default, including the period subsequent thereto upto 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.'
Section 13(2) says that if there is any dispute as to the amount of rent payable by the tenant, the Court shall on a plea made either by the landlord or tenant, fix a reasonable provisional rent which is 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.
7. According to Section 12(l)(a), a ground is made available to the landlord, if the tenant has not paid or tendered the legally recoverable arrears. Section 13(1) directs that the tenant shall within one month of the service of writ of summons on him or within such further time as the Court may extend, deposit in the Court the amount calculated at the rate of rent of which the defendant paid for the period for which the tenant may have made default, including the period subsequent thereto upto 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. The provisions of Section 13(1) are certainly subject to the provisions of Section 13(2). If the rate of rent or the amount of arrears is challenged by the tenant, then unless an order under Section 13(2) is passed, the tenant cannot be compelled to deposit the alleged arrears at the alleged rate. A reading of Section 13(1) and 13(2) in juxtaposition would make it clear that if some dispute is raised regarding amount of rent or arrears, then the Court is obliged to fix provisional rent and the tenant is bound to deposit the same in accordance with the directions of the Court. If the statutory directions under Section 13(1) are not complied with, then the tenant may suffer penalty as provided under Section 13(6). If the defence of the tenant is struck out, then the Court shall proceed with the hearing of the suit and may ultimately pass final order.
8. In the instant case, the suit was filed on 28-11-1980. Summons was served on the defendant on 22-12-1980. The defendant made his appearance before the Court on 23-1-1981 but till 12-2-1982, he did not make deposit in the Court. As the dispute was raised by the tenant, on 6-2-1982, the trial Court fixed an amount of Rs. 200/- as provisional monthly rent and directed the tenant to deposit the said amount within a week. The tenant was obliged to deposit a total sum of Rs. 5,400/- but on 12-2-1982, the defendant deposited a sum of Rs. 2,400/- only. The plaintiff moved an application for striking out the defence of the tenant but on an application of the defendant, the trial Court, by its order dated 17-4-1982, directed the defendant to deposit the rest of the arrears on or before 19-4-1982. On 24-6-1982, the tenant deposited a sum of Rs. 1332/- only but meanwhile on 20-4-1982, the defence was struck out. On 16-12-1982, the defendant filed an application before the learned trial Court, that the Rent Controlling Authority by its order dated 7-6-1982, has fixed the monthly standard rent at Rs. 80.50. The defendant submitted that in view of the final adjudication regarding standard rent, the amount which had already been deposited, in fact, was in excess of the legally recoverable dues. The said application was rejected by the trial Court on 27-4-1983 and the suit was finally disposed of on 28-6-1983.
9. Before the learned first appellate Court, it was contended that the learned trial Court was wrong in not extending the period for making the deposit and the defence of the defendant could not be struck out. It was also contended that the trial Court was bound by the order of the Rent Controlling Authority, as the Rent Controlling Authority was the statutory authority to fix standard rent. The landlord on the face of the order of the Rent Controlling Authority, neither could demand anything more than the rent fixed, nor was entitled to recover it. The learned first appellate Court came to the conclusion that the defendant did not comply with the order of the Court and his defence was rightly struck out. If the trial Court has not condoned the default in making the deposit, then such a discretion cannot be interfered in appeal. The first appellate Court was also of the opinion that the plaintiff has made out his case and it confirmed the decree of the trial Court.
10. Though the appeal was admitted only on one question but it was contended by the learned Counsel for the appellant that he be permitted to raise other pleas also because during the pendency of the present appeal, Misc. Appeal No. 42 of 1987, filed by the appellant tenant, has been allowed by this Court and the matter has been remanded to the first appellate Court for reconsideration.
11. Learned Counsel for the respondent contended that the order passed by the learned Rent Controlling Authority has been set aside and even if the order passed by the learned first appellate Court has been set aside and the matter has been remanded back to the learned first appellate Court for reconsideration, then too the defendant could not be permitted to take advantage of the order of the Rent Controlling Authority, which is sub judice. It was contended that the appeal deserves to be dismissed.
12. In my opinion, the present appeal deserves to be allowed not only on the ground on which the appeal has been admitted, but on the strength of the subsequent events. I had called for the original record of Mis Kailash General Stores v. Firm Ganeshilal Gulabchand, M. A. No. 42 of 1987. The Rent Controlling Authority had fixed the rent at Rs. 80.50 per month, after considering the material available on record. The first appellate Court had set aside the order, but this Court, after setting aside the order passed by the first appellate Court has remanded the matter back to the learned first appellate Court with a direction to pass a fresh order after consideration of the material and the provisions of law, after providing opportunity of hearing to both parties. Once the order passed by the learned first appellate Court in rent jurisdiction was set aside by this Court and the matter was remanded for reconsideration, though the judgment of the Rent Controlling Authority is sub judice, the same revives back. The Rent Controlling Authority has fixed the standard rent at Rs. 80.50. A tenant cannot be compelled to pay anything beyond the standard rent, unless there is some contractual rent fixed. Even in a case of contractual rent, a tenant certainly file an application before the Rent Controlling Authority for getting the standard rent fixed. A ground under Section 12(1 )(a) would be available to the landlord only if the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable. What is legally recoverable is the standard rent. Even under the provisions of the Accommodation Control Act, the landlord is not entitled to recover anything beyond the standard rent.
13. Section 7 of the M. P. Accommodation Control Act defines standard rent and reads as under :-
'7. Standard rent. - 'Standard rent' in relation to any accommodation means -
(1) Where reasonable annual rent or fair rent has been fixed by a competent authority under the repealed Act or prior to the commencement of the repealed Act, as the case may be by a competent Authority under the enactment for the time being in force, such reasonable annual rent or fair rent;
(2)(i) Where the accommodation was let out on or before the 1st day of January, 1948, and the reasonable annual rent or fair rent has not been so fixed, the rent of that accommodation as shown in the Municipal Assessment Register or as was realised on the 1st day of January, 1948, whichever is less; or
(ii) Where the accommodation was not let out on or before the 1st day of January, 1948, the rent of that accommodation as shown in the Municipal Assessment Register or as could be realised on the 1st day of January, 1948, whichever is less; increased -
(a) in the case of a residential accommodation and accommodation used for education purposes by thirty-five per cent of such rent;
(b) in the case of other accommodation, by seventy per cent of such rent; and
(c) in case the tenant is not liable to pay the municipal tax and there has been any increase in municipal tax subsequent to 1st day of January, 1948, (By an amount equal to such increase) :
Provided that the increase specified in paragraphs (a) and (b) shall be permissible only if the accommodation has been kept in good and tenantable repairs;
(3) in case of accommodation not falling under clause (1) or (2) above -
(a) if the accommodation is separately assessed to municipal assessment, the annual rent according to such assessment plus fifteen per cent thereon;
(b) if only a part of the accommodation is so assessed, the proportionate amount of the annual rent for the whole accommodation according to such assessment plus fifteen per cent thereon;
(c) if the accommodation is not no assessed -
(i) the annual rent calculated with reference to the rent agreed upon between the landlord and the tenant when such accommodation is first let out, and if it has not been so let out, to such amount for which it could be let out immediately after its construction was completed; or
(ii) the annual rent calculated on the basis of annual payment of an amount equal to 6?/4 per cent per annum of the aggregate amount of the actual cost of construction and the market price of the land comprised in the accommodation on the date of the commencement of the construction;
whichever is less.
14. A Party can also move an application to the Rent Controlling Authority in the prescribed manner for fixation of the standard rent under Section 10 and the Rent Controlling Authority on such application in accordance with law will have to fix the standard rent. The procedure is prescribed under Section 10 of the M. P. Accommodation Control Act.
15. In fixing the rent of any accommodation under Section 10, the Rent Controlling Authority shall specify the date from which the standard rent so fixed shall be deemed to have effect to the said dale and it shall not be earlier than 30 days prior to the date of filing of the application. A tenant is supposed to make the payment of rent as required under the law. Any landlord who receives any rent in excess of the standard rent as specified in clause (1) of Section 7 or as fixed by the Rent Controlling Authority under Section 10 shall be punishable with simple imprisonment for a term which may extend to 3 months or with fine which may extend to a sum which exceeds the unlawful charge claimed or received in excess of the standard rent by Rs. 1000/- or both. The law as such is clear and unequivocally declares that the tenant is bound to pay the rent which is the standard rent either under Section 7 or so decided on an application to the Rent Controlling Authority under Section 10. The law further declares that a landlord is not entitled to receive anything beyond what is specified in clause (1) of Section 7 or what is fixed by the Rent Controlling Authority under Section 10. In the instant case the tenant had filed the application before the Rent Controlling Authority and the Rent Controlling Authority during the pendency of the suit before the trial Court had already adjudicated the dispute between the parties. It is also true that the matter was taken up to the first appellate Court which had set aside the order of the Rent Controlling Authority but the Appellate Court's order had also been set aside by this Court in M. A. No. 42/87.
16. It was contended that on face of the decree passed in the earlier civil suit where the tenant had agreed to pay the rent at enhanced rate, the tenant cannot be permitted to raise frivolous pleas and he would be bound to pay or deposit the contractual rent. A decree which is passed on the strength of a compromise in fact is nothing but a contract between the parties which is legally enforceable. Therefore, the decree which is passed in the earlier suit providing enhanced rate is nothing but a contract. The Rent Controlling Authority is not precluded from fixing the standard rent despite there being some agreed rent. This Court in Mis Kailash General Stores v. Firm Ganeshilal Gulabchand, M. A. No. 42 of 1987 has clearly stated that despite there being a decree the Rent Controlling Authority would have the jurisdiction to hear and decide the matter under the provisions of Section 10 of the M. P. Accommodation Control Act.
17. In the matter of Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162, the Supreme Court has held as under :-
'Even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(3) the defendant tenant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled (a) to cross-examine the plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid right he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.'
'True full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner; while it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiff's case by the cross-examination of the plaintiff's witnesses really constitutes a finishing touch which completes the plaintiff's case
18. In the matter of Kewal Kumar Sharma v. Satish Chandra, 1991 MPLJ 458 = 1991 JLJ 86 a division bench of this Court following the decision of the Supreme Court in Modula India (supra) has held that the true import of the provisions of Section 13(2) and Section 13(6) of the Act should be rightly understood. The division bench further observed that a tenant is entitled to contest the arrears of rent which may be claimed in a suit for ejectment based on grounds under Section 12(1), including the ground under clause (a) thereof. If he does not contest that issue, he shall suffer two decrees, one for ejectment and the other for arrears of rent. This shall be of course when the plaintiff proves his case. If, however, the defence against eviction is struck out, the tenant is precluded from leading evidence on those issues. Even so, he is entitled to cross-examine the plaintiff to demolish his case and to address arguments. That is the effect of striking out the defence. He can contest any other issue in the suit and can get the suit dismissed for any other relief which may include the claim as to the arrears of rent. The division bench further observed that although at first sight, it appears incongruous that a tenant may suffer a decree for non-payment of arrears of rent because the defence against eviction is struck out, still he may get the relief against the actual amount of arrears of rent claimed. But a little deeper probe into the matter would demonstrate that the tenant suffers a decree not because the issue as to quantum of rent is tried, but because of the special provision of the Act, namely, Section 13 and its various sub-sections including sub-section (6), which vests a discretion in the Court to strike out the defence against eviction. In the instant case, before issue regarding the arrears of rent or the rate of the rent could be finally decided, the Rent Controlling Authority exercising the jurisdiction vested in it by law has come to the conclusion that the rate of the rent is only Rs. 80.50 and not Rs. 200/- as claimed by the landlord. It is noteworthy that the trial Court was alive to the judgment of the Rent Controlling Authority. It had passed the final judgment with a direction that the tenant is bound to deposit the rent at the rate which has been so decided by the Rent Controlling Authority. It would never be policy of law that the tenant is called upon to deposit something which is not due. In the instant case if the order of the Rent Controlling Authority was read in its true spirit then a decree against the tenant even for eviction could not have been passed. As observed above, a tenant is obliged to deposit the rent which is fixed under the provisions of Section 10 of the M. P. Accommodation Control Act. The application filed by the tenant that the deposits which were made by him were far more than what were required to be paid to the landlord in view of the rent fixed by the Rent Controlling Authority could not have been dismissed summarily.
19. The question regarding striking out of the defence, its effect and the surviving right of the tenant was again considered by this Court in the matter of Laxminarayan v. Jambu Dall Mills, 1993 JLJ 117. This Court relying on, Modula India (supra) held that where a suit for eviction and for recovery of rent has been filed, the defendant shall have to suffer the consequence of striking out the defence under Section 12 of the Act and he has to further suffer a money decree for arrears of rent. Because of striking out of the defence, he may not be entitled to adduce his defence to rebut the contention of the plaintiff for showing the grounds of eviction under Section 12 of the Act though he is entitled to cross-examine the plaintiff's witnesses and demonstrate that they are not truthful and reliable. But he is definitely entitled to contest and disprove the rate and quantum of rent as shown by the plaintiff.
20. In the instant case right from the beginning the defendant was contesting the rate of the rent and the quantum of arrears of rent. For his benefit during the pendency of the suit, the order of the Rent Controlling Authority came into existence. The order of the Rent Controlling Authority certainly gave a right in favour of the tenant declaring that he was not called upon to pay more than what was decided by the Rent Controlling Authority.
21. It is to be seen that the Court ultimately if come to the conclusion that the rate of the rent so also the arrears of the rent as claimed by the landlord are not true then ultimately it has to pass a decree in accordance with its own findings or placing reliance upon the order of the Rent Controlling Authority. In such a situation if in the final judgment the Court comes to a conclusion that the rate of the rent as pleaded by the landlord is not proved or the arrears of the rent as claimed were not due then certainly at the time of the final judgment the Court has to consider that the deposits made by the tenant do meet out the requirement of law. In such a situation a decree for ejectment cannot be passed simply on the ground that the tenant had failed to comply with the interim directions issued by the Court in relation to deposit of the rent.
22. Suffice it to say that in a case where the decree is sought only on the ground of Section 12(l)(a) and the rate of rent and the arrears have been disputed, then striking out of the defence is neither proper nor legal It has been repeatedly held by this Court and the Apex Court that a tenant can certainly challenge the rate of rent and the arrears because not only he has to suffer a decree for eviction but will also have to face a money decree. A money decree would be passed under the common law, while eviction would be ordered under the special law. A tenant will certainly have the right to defend the matter and even at the time of final hearing can show and suggest that the rate of rent as pleaded by the landlord and the arrears as claimed by him were not due. If, at the time of final hearing of the matter the tenant is in a position to satisfy the Court and the Court in its judgment comes to the conclusion that the rate of rent as pleaded by the landlord is not applicable and the arrears as claimed were not due, then obviously the Court has to pass a decree only to the extent of what has been proved. It would be an anomalous position that the Court ultimately comes to the conclusion that the arrears as claimed were not due and the rate of rent as pleaded not proved. But, at the same time, the tenant has to suffer a decree for eviction. In the instant case, the learned trial Court has passed a decree for recovery, of arrears on the basis of the order passed by the Rent Controlling Authority. The first appellate Court has confirmed the decree passed by the learned trial Court with the modification that if the order of the Rent Controlling Authority does not stand, then the landlord would be entitled to rent and arrears at the rate of Rs. 200/- per month. Now, even if at the final stage, the first appellate Court is not certain as to what was the rate of rent and what would be arrears, then certainly the decree passed by Courts below cannot stand.
23. It would be in the fitness of things that the matter is remanded back to the trial Court with the direction that it shall proceed further in the matter, only after the disposal of the matter which is pending in regard to the fixation of standard rent. It cannot be lost sight of that if the order passed by the learned Rent Controlling Authority is upheld by the appellate Court and it is held that the standard rent is much less than the contractual rent, then obviously the tenant would be called upon to pay and deposit the arrears and future monthly rent at the said decided rate. If the order of the Rent Controlling Authority is set aside, then too the tenant would be called upon to pay or deposit the arrears in the light of the order.
24. The order passed by the learned trial Court where in extension of time for deposit of the rent was not granted, under the above circumstances, is therefore, unjustified and the same is liable to be set aside. The order directing striking out of the defence has also to be set aside. The trial Court after the final disposal of the rent matter shall refix the rent and direct the tenant to deposit the rent within a particular period. If the tenant does not comply with such directions then the trial Court may exercise the discretion under Section 13(6) of the M. P. Accommodation Control Act.
25. Under these circumstances, the appeal deserves to be and is accordingly allowed. The judgment and decree passed by the learned Courts below are set aside and the matter is remanded back to the trial Court with the direction that it shall proceed further with the matter only after the disposal of the rent matter. It is, however, further directed that the tenant, meanwhile, shall continue to deposit rent at the rate which has been fixed by the Rent Controlling Authority until otherwise directed or held in the rent proceedings. Parties shall appear before the trial Court on 9-5-1995.