ORDER
S.P. Srivastava, J.
1. Feeling aggrieved by the judgment and order passed by the first Appellate Court whereunder allowing the appeal of the defendants, the order passed by the trial Court rejecting the application of the judgment-debtor/defendant seeking setting aside of the ex parte decree passed against him filed under Order 9 Rule 13 C.P.C. was allowed and the suit was restored to its original number and directed to be heard and decided in accordance with the law, the decree-holders/applicants have now approached this Court invoking its jurisdiction under Section 115 C.P.C. praying for the setting aside of the order passed by the first Appellate Court and the restoration of the order passed by the trial Court.
2. I have heard the learned counsel for the applicants.
3. In spite of the service of the notices, none had appeared on behalf of the judgment-debtors/respondents in opposition to this revision.
4. Perused the record.
5. The facts in brief shorn of details and necessary for the disposal of this revision lie in a narrow compass : The Original Suit No. 540-A/94 had been filed by the present applicants against the respondents praying for a decree of their eviction from the premises in dispute, which was being utilised for business purposes, and for recovery of arrears of rent, etc. The plaintiffs had asserted that the rent in respect of the premises in dispute was due from 10-4-1991 at the rate of Rs. 200/- per month. An amount towards total arrears of rent was shown to be Rs. 7000/-. Besides the ground envisaged under Section 12 (1) (a) of the M.P. Accommodation Control Act, 1961, the plaintiffs had also asserted that the premises in dispute was genuinely and bonafide required for their personal use setting up the ground envisaged under Section 12 (1) (f) of the said Act. The plaintiffs had further asserted that the premises in dispute had been let out to the defendants vide the rent deed dated 10-6-1986. Holding the service of the summons of the suit to have been duly served on the defendants, the trial Court on account of the tenants having failed to appear to defend had passed an order on 2-9-1994 indicating that the suit shall proceed against them.
6. The plaintiffs led evidence in support of the plaint case and believing the evidence led by the plaintiffs the trial Court decreed the suit vide the judgment and decree dated 29-9-1994. Thereafter, an application under Order 9 Rule 13 C.P.C. praying for the setting aside of the ex parte decree was filed by both the defendants alleging that the defendants had come to know of the decree for the first time on 20-12-1994. The aforesaid application was filed on 23-12-1994. Along with the application under Order 9 Rule 13 C.P.C, the defendants had also filed an application under Section 5 of the Limitation Act praying for the condonation of delay in filing the same. Both the applications were contested by the plaintiffs/decree-holders on various grounds denying the allegations of the defendants.
7. During the pendency of the aforesaid application, the judgment-debtors/defendants as well as the plaintiffs/decree-holders led oral as well as documentary evidence in support of their respective cases.
8. The trial Court on a consideration of the evidence and the materials on record dismissed the application seeking setting aside of the exparte decree vide the judgment and order dated 5-2-1996. The trial Court came to the conclusion that the defendants, who were real brothers and were residing together, had been duly served with the summons and had failed to appear when the suit was called for hearing without any justifiable reason. The trial Court in support of its conclusion placed strong reliance on the admissions of one of the defendants Om Prakash, who was examined as P.W. 2. This defendant is an educated person and has to his credit a degree of Bachelor of Arts. He had admitted his signatures on the notice issued by the Court and had also admitted that he had not only received the notice but had received the copies which were tendered to him alongwith the notice.
9. A perusal of the aforesaid notice indicates that the aforesaid notice had been issued on 8-8-1994 and the date fixed for the appearance of the defendants in the suit was 2-9-1994. It was served on the defendant Om Prakash on 9-8-1994. At the back of notice, the process server had given his affidavit testifying to the fact that Om Prakash had received a notice for himself as well as his brother Kamlesh. This affidavit of the process server is in accordance with the prescribed rules.
10. The judgment and order of the trial Court rejecting the application seeking setting aside of the ex parte decree was challenged in appeal by the defendants.
11. During the pendency of the appeal, the plaintiffs/decree-holders moved an application under Section 13 (6) of the M.P. Accommodation Control Act, 1961. This application was objected to by the defendants. The first Appellate Court rejected the aforesaid application holding that such an application was not maintainable in an appeal. The first Appellate Court was of the view that an application under Section 13 (6) of the aforesaid Act could be entertained only during the pendency of a suit for ejectment.
12. The first Appellate Court was further of the view that the summons of the suit could not be taken to have been duly served. In support of this conclusion, the first Appellate Court placed reliance upon the circumstance which indicated that both the summons issued to the defendants had been received by Om Prakash and in the summons there was no indication about the copies of the plaint. So far as the admission of Om Prakash about his having received the copy of the plaint, the first Appellate Court ignored the same on the ground that both the summons did not bear the signatures of the witnesses and further that the process server had not given any affidavit. The two circumstances relied upon by the first Appellate Court for reversing the finding of the trial Court on the question of the due service of the summons on the defendants therefore were that the process server had not obtained the signatures of the witnesses while effecting the service of summons and that he had not filed an affidavit. From these two circumstances, the first Appellate Court ignored the admission of the witness Om Prakash which was conclusive and decisive.
13. The learned counsel for the applicants has strenuously urged that the first Appellate Court had acted with manifest illegality in rejecting the application filed by the applicants praying for the striking out of the defence of the tenants against eviction holding it to be not maintainable.
14. It has been urged by the learned counsel for the applicants in the aforesaid connection that the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act as amended clearly include within their ambit any proceeding by a tenant against any decree or order for his eviction. In such a case, it is pointed out that the tenant is bound to comply with the requirement of the provisions of Section 13(1) within one month of the service of notice of the appeal or within one month of the 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. The requirement which has to be complied with by the tenant even during the pendency of the appeal is to deposit in the Court or pay to the landlord the 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 upto the end of the month previous to that in which the deposit or payment is made and shall 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 appeal or proceeding, as the case may be.
15. The provisions contained in Section 13 (6) of the aforesaid Act stipulate that 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.
16. The question as to whether the provisions of Section 13 (6) of the M.P. Accommodation Control Act, 1961, are applicable to appeals was considered in detail in the decision of this Court in the case of Rajesh Om Prakash v. Mullo and Ors., reported in 2000(3) MPHT 520 = 2000(2) MPLJ 445, and it was held that the tenant is required to deposit a monthly rent during the pendency of the appeal.
17. In fact, it is the suit which is to be taken as pending in the shape of the appeal filed under Section 96 of the Code of Civil Procedure. The legislative intent underlying the provisions contained in Section 13 (1) of the M.P. Accommodation Control Act as it stood amended w.e.f. 16-8-1983 is very much clear. The aforesaid provision casts a statutory liability on the tenant, who is a respondent in such an appeal to comply with the conditions stipulated in Section 13 (1) of the Act within one month of the service of the notice of the appeal. The failure to comply with the requirements envisaged under Section 13 (1) of the Act in the event of a pending appeal filed under Section 96 C.P.C. entails serious consequences vesting the Court of appeal with ample jurisdiction to strike out the defence put in by the tenant against his eviction and proceed with the hearing of the appeal.
18. I must hasten to add that the provisions contained in Section 13 (6) of the Act vest the Appellate Court with a discretionary jurisdiction. In case, sufficient ground has been made out for condoning any default in making the deposits as envisaged under Section 13 (1) of the Act, the Appellate Court could refuse to strike out the defence against eviction and proceed to hear the appeal on merits of the defence put in against eviction. This discretion of course has to be exercised not in an arbitrary manner but on sound judicial principles keeping in mind that though M.P. Accommodation Control Act is a beneficent piece of legislation to protect the interest of the tenant sufficient care has been taken under the provisions of the Act to protect the interest, of the landlord as well.
19. Being seized with a beneficent piece of enactment we have to take a view which would advance the object and purpose of the Act. In this connection, it must be emphasised that whatever protection the Rent Acts give, they do not give blanket protection for non-payment of rent. This basic minimum has to be complied with by the tenants. Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent. Reference in this connection may be made to the observations made by the Apex Court in its decision in the case of Madan Mohan and Anr. v. Krishan Kumar Sood, reported in JT 1993 (1) SC 162.
20. In the present case, what I find is that the principle that an appeal is a continuation of the suit has been given a statutory recognition for the purposes of the Rent Control Act and in face of the clear cut and unambiguous provisions contained in Section 13 (1) of the Act, the tenant is required to deposit the monthly rent during the pendency of the appeal challenging the decree of the trial Court filed by the plaintiff.
21. The non-deposit of the amount due including the rent as contemplated under Section 13 (1) of the M.P. Accommodation Control Act may entail striking out of the defence against eviction. In case the Appellate Court exercising its discretionary jurisdiction envisaged under Section 13 (6) of the Act condones the default in the making of the required deposits after considering the sufficiency of the cause shown by the tenant which prevented him from making the required deposit. In case, however, where no cause is shown at all or in a case where the cause shown is not found to be sufficient the Appellate Court is left with no option except to strike out the defence against eviction set up by the defendant.
22. In the present case, as has already been noticed hereinabove, the suit of the plaintiffs had been decreed. The defendants had been found to be defaulters in the payment of rent. There is nothing to indicate that any amount whatsoever had been deposited by the tenants during the pendency of the appeal either towards arrears of rent or towards the current rent. No explanation seeking condonation of delay in the deposit of the rent had been filed. The mandatory requirement envisaged under Section 13 (1) of the M.P. Accommodation Control Act, 1961 had not been complied with.
23. The expressions 'in any appeal or any other proceeding by a tenant against any decree or order for his eviction' as used in Section 13 (1) of the M.P. Accommodation Control Act clearly bring within the ambit of the aforesaid provision, not only the proceedings under Order 9 Rule 13 of the Civil Procedure Code but an appeal filed against the order passed by the trial Court rejecting such an application. It is therefore obvious that the failure of the tenants to comply with the mandatory requirements envisaged under Section 13 (1) of the M.P. Accommodation Control Act disentitled them from raising any defence against their eviction with the consequential result that it was no longer open to the first Appellate Court to proceed to hear the appeal on merits and the only option left to it in the circumstances was to dismiss the same.
24. The learned counsel for the applicants has further contended that the finding recorded by the first appellate Court holding the summons of the suit to have not been duly served is patently illegal and insupportable in law. In this connection, it has further been urged that the aforesaid finding is based on entirely erroneous assumption.
25. So far as the other submission urged by the learned counsel for the appellants in regard to the question relating to the sufficiency of the service of the summons, it may be noticed that the provision contained in Order IX Rule 13 C.P.C., clearly stipulate that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. This is apparent from a perusal of the second proviso to Order IX Rule 13 C.P.C., inserted vide the amendment which came into force with effect from 1-2-1977. Further taking into account the Madhya Pradesh State amendment, words 'there was sufficient cause for his failure to appear' as contained in the Order IX Rule 13 C.P.C., stand substituted for the words 'he was prevented by any sufficient cause from appearing'.
26. In the present case, the status of both the defendants was that of joint tenants. The rent deed stipulated both of the defendants to be the beneficial joint tenants. No where any claim was ever raised leading to an inference that there had been any severance.
27. In its decision in the case of Kanji Manji v. The Trustees of the Port of Bombay, reported in AIR 1963 SC 468, the Apex Court had observed that once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient.
28. It may further be noticed that in its decision in the case of H.C. Pandey v. G.C. Paul, reported in AIR 1989 SC 1470, it had been observed by the Apex Court that in case of a single tenancy which devolves upon several persons, the status of such persons in the absence of any division of the premises or of the rent payable therefor continues to be that of joint tenants.
29. In the present case, it was a single tenancy in favour of the two defendants and the status of the defendants could not be more than that of 'joint tenants. In such circumstances, the admissions of one of the joint tenant about his having received the summons as well as the copies of the plaint was conclusive and decisive of the matter relating to the service of the summons. The admission had not in any manner been proved to be erroneous or was explained away. The trial Court had believed the affidavit of the process server appended on the back of the summons. The correctness of the fact asserted in the affidavit of the process server was not disputed by Om Prakash, one of the joint tenants.
30. In the aforesaid view of the matter, the service of the summons on Om Prakash had to be taken as due service on the other joint tenant as well. In fact, Om Prakash had accepted the summons meant for Kamlesh, the other joint tenant. The other joint tenant had therefore to be imputed with the knowledge of the date fixed for his appearance in the suit. In this connection it may be noticed that a perusal of the deposition of Om Prakash recorded before the trial Court indicates that he had admitted his signatures appearing on the summons meant to be served on him as well as the other joint tenant, Kamlesh. He had further admitted that he had received the summons for and on behalf of Kamlesh. He had also admitted that the Court peon had come to him to serve the summons.
31. As has already been noticed hereinabove, the second proviso to Order IX Rule 13 C.P.C., clearly mandates that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
32. In the present case, the trial Court for cogent reasons had recorded its satisfaction that the defendants had notice of the date of hearing and they had sufficient time to appear and answer the plaintiff's claim.
33. The aforesaid finding has been upset by the first Appellate Court adopting a wrong approach and proceeding on erroneous assumption ignoring the vital aspects going to the root of the matter conclusively negativing the claim of the judgment-debtors/tenants which has resulted in manifestly erroneous conclusions vitiating the impugned order and further resulting in manifest miscarriage of justice.
34. Sufficient ground has been made out for interference by this Court.
35. In the result, this revision succeeds. The impugned judgment and order passed by the first Appellate Court is set aside and that of the trial Court is restored.
36. There shall however be no order as to costs.