Judgment:
R.S. Garg, J.
1. The plaintiffs/landlords who could secure a decree in the Court of the Second Civil Judge, Class I, Durg, in Civil Suit No. 18-A of 1977 were non-suited by the First Additional District Judge, Durg in First Appeal No. 4-A of 1986, have preferred this appeal against the judgment and decree dated 28-07-1986. The litigation though has a chequered history, but the question on which the appeal has been admitted is very short. The appeal has been admitted for hearing parties on 05.08.1987 on the following substantial question of law:-
'Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court on the ground that the application dated 131.1996 purporting to be Under Section 13(1) of the M. P. Accommodation Control Act was not decided ?'
2. The landlords filed a suit for eviction against the respondents/tenants, inter alia, pleading that Sajjanmal was inducted as tenant somewhere in the year 1958, had created sub-tenancy and parted with possession by entering into a partnership, therefore, and as he is in arrears of rent which he has not paid within two months despite service of demand notice, therefore, he is liable to be evicted. The defendants in the written statement submitted that defendant No. 2 is tenant and he is paying rent. Defendant No. 1 would also be a tenant being partner of defendant No. 1. Denying creation of the sub-tenancy, he prayed for dismissal of the suit. Regarding arrears of rent, it was submitted by him that he was not in arrears of rent and Rs. 143/- was far more than the standard rent, therefore he is not liable to pay the rent. By an interlocutory application No. 1, he raised a dispute and pleaded that the rent up to 12-12-1965 has been paid by him and future rent be fixed at Rs. 25/- per month. He also submitted to the Court that he had moved an application before the Rent Controlling Authority for fixation of standard rent in which interim rent was fixed at Rs. 60/- per month but his application before the Rent Controlling Authority was rejected and he had preferred an appeal against the said order of dismissal. At this stage, it would be apt to state that ultimately the rent was fixed by this Court on 20-2-1976 at Rs. 680/- per year and the order is on record as Ex. D-14. It was further contended by the defendant that he is not in arrears of rent. The Court should fix the interim rent and the defendant would pay in accordance with the orders of the Court. The tenant also moved an application Under Section 10, Civil Procedure Code for stay of the suit as according to him, he had also instituted a suit in relation to the rent and its fixation. The learned trial court by its order dated 07-05-1968 granted the tenant's application Under Section 10, Civil Procedure Code directed stay of the suit but, however, refused to pass order on the application Under Section 13(2) of the M. P. Accommodation Control Act and at the same time granting the application of the landlord struck out the defence of the tenant against eviction. The order dated 07.05.1968 was challenged by the tenant before this Court in Civil Revision No. 470/68. The said revision was rejected and the review petition registered as M.C.C. 113/69 was also dismissed by a Division Bench. As the defence was struck out, the defendant defended the suit with the limited scope which he had. After recording evidence and hearing the parties, the learned trial Court decreed the suit which was maintained in appeal and the second appeal was dismissed by this Court. The matter went upto the Supreme Court and the Supreme Court in Civil Appeal No. 4489/95, Sajjanmal and Anr. v. Smt. Shanti Devi and others, allowed the appeal with the following observations:-
'We are not satisfied with the manner in which the case has been disposed of by the High Court and the Court below and we are of the view that the case must be remanded to the trial Court for a fresh disposal in accordance with law after recording evidence that the parties may lead at the trial. We accordingly set aside all the judgments commencing with the judgment of the trial Court and remand the case to the trial Court for a fresh disposal in accordance with law. The trial Court is directed to dispose of this case within three months from the date of receipt of this order. The arrears of rent deposited by the tenant in the trial Court shall be paid to the landlord forthwith.'
During the pendency of the appeal before the Supreme Court, the tenant made deposits of the alleged arrears. After the matter came back to the trial Court, the tenant moved an application purporting to be an application for review of the order dated 07-05-1968. The said application was allowed by the trial Court in view of the judgment of the Supreme Court and the trial Court was of the opinion that the effect of the remand is to set aside the adverse orders which were passed against the tenant. Again, after hearing the parties, the learned trial Court decreed the claim of the landlord though not based on the ground of sub-tenancy but, however, on the foundation of Section 12(1)(a), as according to the trial Court, the tenant did not deposit the arrears of rent within two months of demand or within one month of the service of the summons of the suit on him. The tenant being aggrieved by the said decree, preferred regular appeal before the first appellate Court. The appellate Court found that as the application dated 13.1.1966 being Under Section 13(2) of the M. P. Accommodation Control Act was not decided the decree on the ground Under Section 12(1) (a) could not be passed. It appears from the judgment of the learned first appellate Court that the plaintiff did not challenge the adverse findings on the question of sub-tenancy or parting with possession. The judgment of the first appellate Court is conspicuously silent and does not make any reference to any arguments regarding sub-tenancy raised by the plaintiff. After holding that the trial Court was bound to decide the application dated 13.01.1966, which raised the dispute, the appellate Court allowed the appeal and dismissed the suit. Being aggrieved by the said judgment and decree passed by the first appellate Court, the plaintiff has preferred this second appeal. This second appeal has been admitted for hearing on the only question, quoted above.
3. During the course of arguments, Shri Jain, learned Counsel for the appellant, contended that he was entitled to a decree on the ground provided Under Section 12(1)(b) of the M. P. Accommodation Control Act. Shri Agrawal submits that as the trial Court did not grant a decree on the ground of sub-tenancy and the question was not raised before the trial Court, either by filing cross-objections or by filing memorandum of objections or by challenging the finding before the first appellate Court, this question cannot be raised in this appeal. Being in agreement with the argument of Shri Agrawal, I am of the opinion that this question cannot be raised before this Court. The trial Court categorically held that the plaintiff has failed to prove the ground of subtenancy and has also failed to prove that the tenant has parted with possession. Though relief of ejectment was granted to the plaintiff but it was based on the ground Under Section 12(1)(a) alone. In the appeal filed by the tenant, if the landlord was of the opinion that not only on the ground of Section 12(1)(a) but he is entitled to a decree also on the ground Under Section 12(1)(b), then he was duty bound to challenge the said findings which were recorded against him by the trial Court, by filing a memo of objections which may not be like cross objections filed Under Order 41, Rule 22, Civil Procedure Code. Catena of authority has declared that in a case where the landlord has succeeded in his suit on some ground and there was some other ground on which decree could be passed but has not been passed and the landlord feels that he is entitled to a decree on such other ground/s than the one on which the decree is passed, then he is duty bound to submit a memorandum of objections and should also press the point before the first appellate Court. The records of the first appellate Court do not show that any memorandum of objections was filed and from the judgment it does not appear that the question relating to sub-tenancy was ever raised. In my opinion, the question of sub-tenancy is closed for ever and cannot now be raised before this Court in second appeal.
4. Regarding availability of the ground Under Section 12(1)(a) of the Act, expanding the scope of the substantial question of law on which the appeal was admitted, Shri Jain relying upon the decision reported in Yashbai v. Ganpat, AIR 1975 Bom. 20, submits that if the dispute is raised, it must be bona fide and the party should ask the Court to decide the dispute. It cannot be doubted that when indulgence of the Court is prayed to decide the dispute, the dispute must be which is required to be decided. It should not be false, absurd or patently illegal. By I. A. No. 1 dated 13-01-1966, the respondent tenant contended that he had made payment upto 12-12-1965 and was ready to pay rent within the date which was fixed by the Court. In the said application it was further submitted that rent of Rs. 143/- which was contractual be reduced to Rs. 25/- per month. In the written statement also it was submitted that the tenant is not in arrears of rent and regarding rate of rent, he had filed an application before the Rent Controlling Authority in which interim rent was fixed at the rate of Rs. 60/- per month, but the said application was dismissed on certain technical ground and the matter was pending before the first appellate Court. Shri Jain submits that either I. A. No. 1 or the pleadings do not raise a dispute which requires consideration by the Court, therefore, the order dated 7-5-1968, by which it was held that the dispute was not required to be decided was justified and the order passed by the Civil Judge, after remand from the Supreme Court setting aside the order dated 07.05.1968, is patently illegal. Continuing with his arguments, he submitted that the order dated 07-05-1968 could not have been recalled because the Supreme Court by its order had remanded the case back to the trial Court with the direction that the parties shall be permitted to lead evidence which would only mean the evidence which is admissible and is in accordance with law or which the parties are entitled to lead in accordance with the orders of the Court. On the other hand, Shri Agrawal submits that the order of the Supreme Court is to be understood and appreciated in its letter and true spirit. According to him, when the Supreme Court has set aside all the judgments commencing with the judgment of the trial Court and the matter was remanded back to the trial Court for a fresh disposal in accordance with law and opportunity was given to the parties to lead evidence, then it has to be presumed that the order dated 07.05.1968 striking out the defence of the tenant was also set aside. According to him, if the order dated 07.05.1968 stands and the Supreme Court has upheld it, then there was no need to remand the case and the Supreme Court even could have passed a decree on the foundation of Section 12(1)(a) as the facts were writ large before the Supreme Court.
5. The order dated 07-05-1968 was not on I. A. No. 1, in fact, by this order the learned Civil Judge has decided the application filed Under Section 10, Civil Procedure Code and also decided the application filed Under Section 13(6) of the Act. A question was raised before the Civil Judge that without deciding the dispute raised by I. A. No. 1, the Court could not strike out the defence. The learned Civil Judge at that time was of the opinion that as the Rent Controlling Authority had already passed an interim order directing payment of rent at Rs. 60/- per month, it must be held that the tenant was liable to pay rent at Rs. 60/- per month. The learned Civil Judge also held that in view of the facts which were before him, the defence was liable to be struck out.
6. It cannot be disputed that the application dated 13-01-1966, I. A. No. 1, was never decided by the Court. If the argument of Shri Jain is accepted, then, in my opinion, the judgment of remand passed by the Supreme Court would become redundant. The defendant had also led his evidence after his defence was struck out and this position was clear before the Supreme Court. If the defendant was required to lead evidence with his defence against eviction struck off, then nothing was required to be done. Not only this a decree on the ground of Section 12(1)(a) of the Act could have been passed by the Supreme Court straightaway as the Supreme Court knew that defendant's defence was struck out as he did not deposit the rent. If the Supreme Court permitted the defendant to lead evidence it would lead to an irresistible conclusion that order dated 07-05-1968 was set aside. I cannot hold that the order of the Supreme Court means that the order dated 07-05-1968 could not have been recalled by the learned Civil Judge. The learned Civil Judge rightly appreciated the spirit of the judgment of the Supreme Court and has rightly recalled the order dated 07-05-1968. The effect of the recall of the order was that the application dated 13-1-1966, I. A. No. 1, remained undecided.
7. Shri Jain, referring to the provisions of Section 13(1) submits that if there is a dispute regarding arrears of rent or rate of rent, then the dispute must be a genuine and bona fide dispute, it cannot be absurd or contrary to law. According to him by I. A. No.1 and the pleadings, the defendants only contended that the rate of rent was Rs. 143/- and the Court should decide the interim rent, which would only mean that he admitted the rate of rent, therefore, the application, I. A. No. 1, was not required to be decided. I am unable to agree with the submission made by the learned Counsel. By I. A. No. 1 and the pleadings raised in the written statement, the defendant' contended that he is not in arrears of rent, contractual rent of Rs. 143/- is excessive, is far more than the standard rent and the Court must fix the standard rent or interim rent. The Court is required to decide the application, it cannot refuse to decide it even if it comes to the conclusion that the application is contrary to law. By filing an application, a party craves indulgence of the Court to a particular set of facts and requires the Court to decide the said application. It would have been different that the Court after considering the application dated 13-1-1966, had come to the conclusion that the application did not relate to a dispute, but the court could not refuse to decide the application.
7A. Relying upon the decision reported in the matter of Dewabai v. Bhamarlal. 1977 MPLJ 446, Shri Jain contended that if arrears of rent are disputed, then the tenant is duty bound to deposit monthly rent by the 15th of each succeeding month. Relying on the decision reported in Narayan Singh v. Arjun Das, 1990 MPLJ 529, he further submitted that if the tenant comes to the Court with a plea that he had already paid the alleged arrears then this would not amount to dispute. It appears that reliance was placed on 1977 MPLJ 446, inadvertently. The authority of 1977 MPLJ 446 was considered by a Division Bench in the matter of Anandilal v. Shiv Dayal Pandey, 1977 MPLJ 822. This court disapproving the observations made in the matter of Dewabai, 1977 MPLJ 446, came to the conclusion that even when there is no dispute with regard to the rate of rent and the dispute is only with regard to the arrears of rent, on such dispute, till the Court passes an order Under Section 13(2) of the Accommodation Control Act, operation of the whole of Sub-section (1) of Section 13 is arrested. The liability of the tenant to deposit monthly rent for the preceding month under the second part of Section 13(1) does not commence until an order under Sub-section (2) of Section 13 is made. Shri Jain now submits that the words 'shall thereafter' would come into operation immediately and not only after the first part of Section 13(1) is complied with. According to him, the second part would remain in operation, even if the first part is under suspension. The very question was considered by the Division Bench in the matter of Anandilal (supra). The Division Bench, in para 13 of the judgment, made the following observations:-
'The key to the problem is found in the word 'thereafter' in the second part of Section 13(1). The word 'thereafter' (i.e. after that) necessarily refers to the tenant's liability becoming operative under the first part of Section 13(1). If that liability is arrested, the liability under the second part does not commence, because the liability under the second part commences only 'thereafter' which means when the liability of the tenant under the first part is ripe for performance.'
In para 15, the Division Bench further held that the word 'thereafter' is clearly indicative of the tenant's liability arising under the second part of Section 13(1) after the liability under the first of Section 13(1) has accrued. On the basis of the judgment of the Division Bench of this Court, it cannot be held that the liability of the tenant came into operation even when the first part of Section 13(1) was under suspension. It appears that the judgment reported in 1990 MPLJ 529, Narayan Singh v. Arun Das Gupta, has not taken into consideration the judgment of this Court in the matter of Anandilal (supra). It appears that the learned judge proceeded on a wrong assumption contrary to the binding precedent recorded in the matter of Anandilal (supra).
8. Shri Jain now submits that by making deposit and confining the dispute in the written statement to a particular set of facts, the defendant has waived his right to get the alleged dispute decided under I. A. No. 1. Shri Agrawal submits that unless the conduct of the defendant shows and the acts lead to a positive inference that the defendant is not pressing his application, it cannot be held that the dispute raised by the defendant was waived. Relying upon the judgment reported in the matter of Ramgopal v. Pooranmal, 1986 MPLJ 165, he submitted that even after raising a dispute Under Section 13(2) of the Act, if the tenant proposes to deposit interim rent as claimed by the landlord, it would not lead to the necessary inference that he has waived his right to have the dispute decided. Drawing analogy from this judgment, he submits that if in a case where the tenant deposits all arrears of rent as claimed by the landlord and if the tenant can continue to raise dispute and can ask the Court to decide the dispute, then in a case where the application is still not decided, it cannot be held that he has waived his rights or given up the dispute. Waiver can be direct or based on necessary inference. Inference can be drawn only when the facts are not in dispute or the Court on the basis of certain factual foundation draws a legal inference or comes to the conclusion that on the basis of certain proved facts or particular facts a presumption can be drawn. This presumption alone is legal inference. In the instant case, the tenant right from day one, i.e. 13.01.1966 and from the date of filing of his written statement, had been contending that his dispute ought to have been decided but unfortunately his request remained unattended. The Supreme Court in the very opening sentence has observed that it was not satisfied with the manner in which the case has been disposed of by the High Court and the Courts below. The Supreme Court further observed that in their view the case be remanded to the trial Court for a fresh disposal. The supreme Court set aside the judgments commencing with the judgment of the trial Court and the parties were given opportunity to lead evidence. The tenant had deposited the rent and the Supreme Court had observed that the rent deposited by the tenant shall be paid to the landlord forthwith. In my opinion, the observations made by the Supreme Court would lead to the necessary conclusion that the Supreme Court had set aside every order which were recorded against the defendant and had accepted the rent deposited by the tenant. Even if it cannot be held that the Supreme Court had accepted the rent deposited by the tenant, one thing is certain that the trial Court had recalled the order dated 07.05.1968, striking out the defence was recalled, the application, I. A. No. 1 dated 13.01.1966, which was tacitly rejected by order dated 7-5-1968 stands restored and was required to be decided. In the absence of a decision on the dispute raised by the tenant regarding arrears of rent or quantum of rate of rent, the Court is not entitled to pass a decree on the foundation of Section 12(1)(a) alone. It is the duty cast on every Court to decide the dispute raised before it. The appellate Court has set aside the judgment and decree of the trial Court mainly on the ground that the I. A. No. 1 dated 13-1-1966 was not decided, therefore, a decree could not have been passed. At this stage, it would be proper to quote the provisions of Section 1(1), (2) and 13(5) of the M. P. Accommodation Control Act.
'13(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 of appeal or of any other proceeding 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, 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 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 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 the 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 his account at any subsequent stage.
(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.'
According to Section 13(2) when a plea is made before the Court, either by the landlord or by the tenant, the Court shall fix 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. It cannot be disputed that I. A. No. 1 was filed before filing the written statement. The Court was duty bound to decide the dispute and the tenant would be obliged to observe the mandate issued by the Court. In absence of an order on I. A. No. 1 the liability of tenant to deposit the rent could not arise. The matter does not end here. If the Court decides the dispute Under Section 13(2) and the tenant makes a deposit or payment as required by Sub-section (5) within the extended period, no decree or order shall be made by the Court for recovery of possession of the accommodation on the ground of default in payment of rent by the tenant but the Court may allow such cost, as it may deem fit, to the landlord. The tenant in view of Section 13(5) still has an opportunity to defeat the claim of the landlord, if the dispute is decided, interim orders are passed and the tenant complies with the orders of the Court passed Under Section 13(2). Section 12(3) issues a mandate to every Court that the order for eviction of the tenant shall not be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payments of or deposits the rent as required by Section 13. If the Court has not decided the dispute raised by the tenant, and opportunity to comply with the orders which could have been passed by the Court has not been afforded to the tenant then a decree Under Section 12(1)(a) cannot be passed against the tenant. In my opinion, the learned first appellate Court was justified in holding that in the absence of a decision on the dispute raised by the tenant, the appellant landlord was not entitled to a decree. I do not find any force in this appeal. It is dismissed. There shall be no orders as to costs.