Ratnakar and anr. Vs. Haji Inayatullah - Court Judgment

SooperKanoon Citationsooperkanoon.com/498836
SubjectTenancy
CourtMadhya Pradesh High Court
Decided OnAug-16-1988
Case NumberCivil Revn. No. 170 of 1987
JudgeP.D. Mulye and ;S.K. Dubey, JJ.
Reported inAIR1989MP134; 1988MPLJ665
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12(1), 13(1), 13(2), 13(6) and 23A
AppellantRatnakar and anr.
RespondentHaji Inayatullah
Appellant AdvocateJ.W. Mahajan, Adv.
Respondent AdvocateN.K. Patni, Adv.
Cases Referred(Paraschand v. Hemant Kumar
Excerpt:
- - if the court is satisfied that any dispute referred to in sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the court may order the defence against eviction to be struck out and proceed with the hearing of the suit. in fact in the decision reported in 1986 mprcj 137 it has been clearly held that under section 13(1) after the application is filed before the rent controlling authority the tenant is bound to deposit every month the rent as contemplated under section 13(1), but is not bound to deposit any arrears of rent nor the rent controlling authority has any jurisdiction to pass any decree or order for recovery of arrears of rent. iii-a by section 8 of the amending act of 1983. thus, in respect of the other grounds not covered by section 23-a the suit for eviction could well be filed in the competent court. therefore, the rent controlling authority cannot call upon the tenant to deposit past arrears of rent nor for failure of the tenant to deposit the same he can strike out the defence of the tenant as contemplated by section 13(6) of the said act because in such a case the first limb of section 13(1) is not attracted.p.d. mulye, j.1. a learned single judge of this court (shri v. d.gyani, j.) has made this reference to this court to decide the following question of law :'whether the rent controlling authority, while dealing with an application under section 23a of the madhya pradesh accommodation control act, 1961, has power to strike out 'tenant's defence under section 13(6) of the said act for non-compliance of section 13(1) of the m.p. accommodation control act, 1961 ?2. short facts, material for the decision of this reference may be stated, in brief, thus ; the respondent, a retired government servant, who is covered under section 23-j as a landlord for the purpose of chap. ii1-a, filed an application under section 23-a of the m.p. accommodation control act, 1961 against the petitioners, as tenants before the rent controlling authority, indore on 15-3-1985 seeking ejectment on the ground that he bona fide required the residential part of the suit accommodation for his own residence and the non-residential part thereof for starting his son's business of rent from 1-5-1970 till 31-12-1984 at the rate of rs. 60/- per month, which was the standard rent fixed, amounting to rs. 10.560/-and anamount of rs. 120/-on account of mesne profits for the period 1-1-1985 till 28-2-1985 in all to talling rs. 10,680/-. he, therefore, also claimed a decree for arrearsof rent, mesne profits and also decree of eviction on the ground of default in making payment of rent, despite service of notice as contemplated by section 12(l)(a) of the m.p. accommodation control act, 1961 and also claimed future mesne profits at the rate of rs. 60/- per month.3. the petitioner-tenants (who are the legal representatives of the original tenant) after obtaining leave to defend the case contested the landlord's case by denying the landlord's alleged bona fide requirement and also denying their liability to pay arrears of rent, as demanded by the landlord, which they had disputed.4. as the petitioners did not deposit the arrears of rent or the current monthly rent which became due after the filing of the case before the rent controlling authority, the respondent-landlord filed an application on 12-6-1985 with a prayer to strike out the petitioner's defence against eviction. a reply to this application was filed by the petitioners on 5-7-1985. the learned rent controlling authority, after hearing the arguments found that as the petitioners had not filed their written statement till then, there was no question of striking out the defence. he, therefore, directed the petitioners to file their written statement, which was actually filed on 29-10-1985.5. the said application dt. 12-6-1985 filed by the respondent landlord for striking out the petitioners defence against eviction, was again fixed for arguments and the learned rent controlling authority by placing reliance on the supreme court decision reported in 1985 mprcj 127 : (air 1985 sc 582) (s. sundaram v. v. r. pattabhiraman) and placing reliance on another decision of this court reported in 1984 mprcj (note) 112 (ramji das v. mst. ratanbai) struck off the petitioners' defence and ordered their eviction within two months of the date of the order dt. 16-12-85. the petitioners challenged the said order in c.r. no. 65 of 1986, which was partly allowed on 14-1-87 and the case was remanded back to the rent controlling authority for recording evidence as the previous order dt. 16-12-85 was passed by the learned rent controlling authority without recording any evidence whatsoever in support of the respondents case. however, the order as regards striking out of the defence was maintained.6. after remand, the rent controlling authority recorded respondents evidence and passed the impugned order of ejectment on 21-5-87 in case no. 90/7/188/84-85 by holding that the respondent has succeeded in proving his case of bona fide requirement in respect of the suit accommodation.7. being aggrieved, the petitioners filed the present revision petition in this court.8. at the hearing of this petition, on the question whether the rent controlling authority has jurisdiction to strike out defence of a tenant in proceedings instituted for ejectment under section 23-a of the said act, the learned single judge felt that there being conflicting decisions of this court on this point, the controversy deserves to be resolved by a larger bench. it is in these circumstances that this reference has come before us for decision.9. shri g. l. oza, j. (as he then was) in the case reported in 1986 mprcj 137 (d. r. jha v. shri ram sharma) has held that under section 23-a the rent controlling authority has no jurisdiction to entertain a claim for arrears of rent or for ejectment on the ground of arrears and the provisions of section 13(1) or (2) are not applicable in a suit or proceeding before the rent controlling authority for eviction on the ground of genuine requirement.10. in another decision reported in 1987 mprcj 92 (sobran singh v. deendayal goel) dr. t. n. singh j. has held that in a proceeding for eviction filed by the landlord under section 23-a before the rent controlling authority, landlord's claim for arrears of rent is not maintainable before that authority since he has no jurisdiction to consider the question of eviction on the ground of arrears of rent.11. on the other hand shri k. m.agarwa!, j. in the decision reported in 1986 mprcj (note) 86 (sayed mumtaz ali v. abdul tawab) has held that in an application filed under section 13(6) of the said act by the landlord for striking out the defence due to default in depositing the rent before the rent controlling authority, tenant is bound to pay arrears of rent and monthly rent, as per law.12. similarly shri k. l. shrivastava, j. in the decision reported in 1987 mprcj (note) 15 (anil kumar v.kamal singh) has held that in a suit for eviction filed ,by the landlord under section 23-a of the said act on the ground of bona fide requirement, if arrears of rent are not deposited as stipulated under section 13( i) of the said act, on an application being filed by the landlord before that authority under section 13(6), the view taken by the rent controlling authority that it had no jurisdiction to condone the delay and consequently struck off the defence, is not correct. it has, therefore, been held that the rent controlling authority has the jurisdiction to condone the delay and extend the time for deposit. in short, if the rent controlling authority has the power to condone the delay it has also the power to strike out the defence.13. at the outset we may refer to the provisions of section 13(1) and section 23-h of the m.p. accommodation control act, 1961 :'13, when tenant can get benefit of protection against eviction.-- (1) on a suit or any othet proceeding being instituted by a landlord on any of the grounds referred to in section i'2 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 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 tc itallow 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 up to 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 as 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 pf rent payable by the tenant, the court shall, on a plea made either by 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 this account at any subsequent stage.(3) if, in any proceeding referred to in sub-section (1), there is any dispute as to the person or persons to whom the rent is payable, the court may direct the tenant to deposit with the court the amount payable by him under sub-section (1) or sub-section (2), and in such a case no person shall be entitled to withdraw the amount in deposit until the court decides the dispute and makes an order for payment of the same. if the court is satisfied that any dispute referred to in sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the court may order the defence against eviction to be struck out and proceed with the hearing of the suit.(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.(6) if a tenant fails to deposit or pay any amount as required by this section, 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.' '23-j.deposit of rent pending proceedings for eviction or for revision. the provisions of section 13 shall apply 'mutatis mutandis'in respect of an application for recovery of possession of accommodation under section 23-a and in respect of proceeding for revision under section 23e against final order by the rent controlling authority under section 23-c or under section 23-d as they apply to a suit or proceeding instituted on any of the grounds referred to in section 12 :provided that no suit or proceeding for eviction of the tenant is pending before any court at any of its stages in relation to the same accommodation.'14. the learned counsel for the petitioner did not dispute the fact that the rent controlling authority is a 'court' as decided in air 1957 madh pra 11 (makhnobai v. rameshwar dayal) 1956 mblj 1267 as also under section 29 of the m.p. accommodation control act, 1961, he, therefore, did not dispute that the rent controlling authority is a 'court' as contemplated under section 13(1) of the said act.15. the decision reported in 1985 mprcj 127 : (air 1985 sc 582) (supra) cannot be applied to the facts of the present case as that case was decided under the provisions of tamil nadu buildings (lease & rent control) act, 1960, wherein the rent controlling authority had the jurisdiction to decide all cases of eviction including on the ground of default of payment of arrears of rent by the tenant for the period prior to the filing of the suit after service of demand notice on that ground.16. in the case reported in 1984 mprcj (note) 112 (supra) it is not clear whether in that case the landlord had demanded any arrears of rent prior to the date of the filing of the application or that eviction was sought on the ground of default in payment of arrears of rent as contemplated under section 12(1) (a) of the said act. in fact in that case the tenant had denied his relationship with the landlord and, therefore, he did not pay any rent that became due every month after the filing of the eviction suit before the rent controlling authority and it is in these circumstances it has been, held that in such a case defence against eviction of the tenant can be struck off under section 13(6) of the said act.17. admittedly and undisputedly in an application filed by a landlord covered under section 23-j of the said act on the ground of section 23a thereof, the rent controlling authority has no jurisdiction to pass any decree or order for arrears of rent claimed prior to the date of the application nor he has any jurisdiction or authority to pass a decree .of eviction on the ground of section i2(l)(a) of the said act.therefore, in the decision reported in 1986 mprcj 137 (supra) and 1987 mprcj 92 (supra) it has been rightly held that the rent controlling authority has no jurisdiction to pass any decree for arrears of past rent nor he has the jurisdiction to pass a decree of eviction on the ground of section 12(l)(a) of the said act even though the tenant may have committed default as contemplated by that section. in such a case for claiming arrears of rent and for eviction on the ground of section 12( l)(a) of the said act, the only remedy of the landlord is to file a regular civil suit in the civil court having jurisdiction. in fact in the decision reported in 1986 mprcj 137 it has been clearly held that under section 13(1) after the application is filed before the rent controlling authority the tenant is bound to deposit every month the rent as contemplated under section 13(1), but is not bound to deposit any arrears of rent nor the rent controlling authority has any jurisdiction to pass any decree or order for recovery of arrears of rent. it has further been held therein that as it is clear that under section 23-a the rent controlling authority had no jurisdiction to pass any order or direction or a decree in respect of arrears of rent, the application of the provisions of section 13(1) or (2) in respect of arrears of rent will not arise in a suit or proceedings before the rent controlling au'thority for eviction on the ground of genuine requirement. it has further been held therein, that it is also clear that the petitioner-tenant who was permitted to defend is bound under section 13(1) to deposit rent commencing from the month of november, 1983 when an application was made before the rent controlling authority till the decision of that case and, therefore, it is also held that - 'it is further directed that as the question of arrears is not within the jurisdiction of the rent controlling authority the petitioner-tenant shall deposit before the rent controlling authority all rent from nov. 1983 till to-day within two months from today and the rent controlling authority having granted permission to the petitioner to defend shall proceed to dispose of the proceedings before it in accordance with law.'18. similarly in the decision reported in 1987 mprcj 92 (supra) it has been held that though a ground under section 12(l)(a) of the act may be available to the landlord against his tenant in a case filed by the landlord under section 23-a for eviction before the rent controlling authority and has also claimed arrears of rent, that application becomes non-maintainable before the rent controlling authority since he has no jurisdiction to consider the question of eviction on the ground of arrears of rent.19. in the decision reported in 1987 mprcj (note) 15 (supra) it has no doubt been held that in an application for eviction filed under section 23a on 15-11-83 by the landlord, notice of which was served on the tenant on 3-12-1983, by 3-1-1984 the tenant ought to have deposited all the arrears of rent claimed therein which became due prior to 15-11-1983 and, therefore, he having not deposited the same by 3-1-1984 but had deposited the same amounting to rs. 2700/-on 13-1-84 and the subsequent current monthly rent amounting to rs. 180/- on 6-3-84, the view taken by the rent controlling authority that it had no jurisdiction to condone the delay and extend the time for deposit is wrong. thus, it has impliedly beenheld that the rent controlling authority had the jurisdiction to strike out the defence against eviction under section 13(6) of the said act in such a situation. in our opinion, this view does notholdgood law and the said decision to that extent has to be and is hereby overruled.20. so far as the decision reported in 1986 mprcj (note) 86, it does not appear that the view taken therein is in any way in conflict or contrary to the decisions reported in 1986 mprcj 137 or 1987 mprcj 92. in fact, the facts of this case would reveal that in that case the landlord had not claimed any arrears or rent prior to the filing of the application before the rent controlling authority. in fact by placing reliance on the provisions of section 23-h of the said act it has been held that even if arrears of rent were not claimed by the applicant, the non-applicant (tenant) was bound to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to rent at that rate till the decision of the application for ejectment filed under section 23a of the act. it has further been held that under the circumstances, the proper course open to the rent controlling authority was to direct the non-applicant (tenant) to deposit or pay the rent from the date of the application for ejectment and till the date of its disposal on merits. it was, therefore, ordered that the application for ejectment was admittedly filed in the month of march 1984 and the agreed rate of rent was rs. 75/-per month. accordingly the non-applicant deserves to be directed to pay the rent from march, 1984 to sept. 1985 i.e. 19 months at the agreed rate of rs. 75/- per month and to further continue to deposit month by month by the 15th of each succeeding month a sum equivalent to rent at that rate till the decision of the application for ejectment.21. even in the full bench decision reported in 1987 mprcj 79: (air 1987 madh pra 50), (paraschand v. hemant kumar) it has been held as under :'by the amending act of 1983, chapt. iiia was inserted which provided the procedure with regard to eviction of tenants on grounds of bona fide requirements. under this chapter a landlord cannot submit an application to the rent controlling authority for eviction of tenants on the grounds other than the bona fide requirements as has been dealt with under section 23-a, which was inserted in chapt.iii-a by section 8 of the amending act of 1983. thus, in respect of the other grounds not covered by section 23-a the suit for eviction could well be filed in the competent court.'therefore, we are unable to agree with the submission of the learned counsel for the petitioner that the entire provisions of section 13 of the m.p. accommodation control act, 1961 are not attracted in an application filed by the landlord under section 23-a of m.p. accommodation control act. we also see no force in the submission of the learned counsel for the respondent that in an application filed by the landlord under section 23-a of the said act before the rent controlling authority, in which he has claimed past arrears of rent which were due prior to the date of filing of the application before the rent controlling authority that the tenant with one month from the service of notice in that case is bound to deposit with the rent controlling authority or pay to the landlord all those arrears of rent prior to the date of filing of the application.22. in the result the reference is answered accordingly.23. as the rent controlling authority has no jurisdiction or authority to pass a decree for arrears of rent claimed which had fallen due prior to the filing of an application for eviction under section 23-a of the said act, nor he has any jurisdiction or authority to pass a decree for eviction under section 12(1) (a) of the said act the tenant is not bound to deposit those arrears of rent with the rent controlling authority in such a case. for those past arrearsof rent the landlord has the only remedy of approaching the competent civil court. therefore, the rent controlling authority cannot call upon the tenant to deposit past arrears of rent nor for failure of the tenant to deposit the same he can strike out the defence of the tenant as contemplated by section 13(6) of the said act because in such a case the first limb of section 13(1) is not attracted.24. in view of the provisions of section 23-h of the accommodation control act, in an application filed by the landlord against his tenant under section 23-a of the said act, the tenant within one month from the date of service of notice of that application is bound to deposit or pay to the landlord the rent which is due from the date of the filing of the application before the rent controlling authority and shall continue to deposit the same or pay to the landlord by the 15th of each succeeding month till the decision of the application of the landlord by the rent controlling authority on merits, provided no other suit for eviction on other grounds as contemplated by section 12 of the said act filed by the landlord against the his tenant in the competent civil court is pending. in such a case, if the tenant fails to deposit or pay to the landlord month by month the rent which becomesdue from the date of the filing of the application before the rent controlling authority under section 23-a of the said act, on sufficient cause being shown by the tenant the delay in depositing the same by the tenant can be condoned and if the tenant persists in making such default, on an application being filed by the landlord the rent controlling authority has the jurisdiction to strike out the defence of the tenant under section 13(6) of the said act. 25. after the filing of an application for eviction under section 23-a of the said act before' the refit controlling authority, on the ground of bona fide requirement, if the tenant fails to deposit or pay to the landlord current monthly rent which is due from the date of the filing of the application before that authority, the rent controlling authority on an application being filed by thelandlord has the jurisdiction to strike out the defence of the tenant as contemplated under section 13(6)of the said act.26. if the tenant, in an application filed against him by the landlord for eviction under section 23a of the said act before the rent controlling authority, disputes the rate of rent, the rent controlling authority shall fix the reasonable provisional rent as contemplated by section 13(2) of the said act which the tenant is bound to deposit or pay to the landlord from the date of the filing of the said application before the rent controlling authority till the decision of that case on merits.27. if the tenant, in such a case fails to deposit or pay to the landlord the reasonable provisional rent so fixed within the time granted by the rent controlling authority and also fails to deposit the provisional rent at that rate by the 15th of each succeeding month, on an application being filed by the landlord, the rent controlling authority has the jurisdiction to strike out the defence of the tenant as contemplated under section 13(6) of the said act.28. cost shall abide the final decision. the case be now listed before the learned single judge.
Judgment:

P.D. Mulye, J.

1. A learned single Judge of this Court (Shri V. D.Gyani, J.) has made this reference to this Court to decide the following question of law :

'Whether the Rent Controlling Authority, while dealing with an application under Section 23A of the Madhya Pradesh Accommodation Control Act, 1961, has power to strike out 'tenant's defence under Section 13(6) of the said Act for non-compliance of Section 13(1) of the M.P. Accommodation Control Act, 1961 ?

2. Short facts, material for the decision of this reference may be stated, in brief, thus ; The respondent, a retired Government servant, who is covered under Section 23-J as a landlord for the purpose of Chap. II1-A, filed an application under Section 23-A of the M.P. Accommodation Control Act, 1961 against the petitioners, as tenants before the Rent Controlling Authority, Indore on 15-3-1985 seeking ejectment on the ground that he bona fide required the residential part of the suit accommodation for his own residence and the non-residential part thereof for starting his son's business of rent from 1-5-1970 till 31-12-1984 at the rate of Rs. 60/- per month, which was the standard rent fixed, amounting to Rs. 10.560/-and anamount of Rs. 120/-on account of mesne profits for the period 1-1-1985 till 28-2-1985 in all to talling Rs. 10,680/-. He, therefore, also claimed a decree for arrearsof rent, mesne profits and also decree of eviction on the ground of default in making payment of rent, despite service of notice as contemplated by Section 12(l)(a) of the M.P. Accommodation Control Act, 1961 and also claimed future mesne profits at the rate of Rs. 60/- per month.

3. The petitioner-tenants (who are the legal representatives of the original tenant) after obtaining leave to defend the case contested the landlord's case by denying the landlord's alleged bona fide requirement and also denying their liability to pay arrears of rent, as demanded by the landlord, which they had disputed.

4. As the petitioners did not deposit the arrears of rent or the current monthly rent which became due after the filing of the case before the Rent Controlling Authority, the respondent-landlord filed an application on 12-6-1985 with a prayer to strike out the petitioner's defence against eviction. A reply to this application was filed by the petitioners on 5-7-1985. The learned Rent Controlling Authority, after hearing the arguments found that as the petitioners had not filed their written statement till then, there was no question of striking out the defence. He, therefore, directed the petitioners to file their written statement, which was actually filed on 29-10-1985.

5. The said application dt. 12-6-1985 filed by the respondent landlord for striking out the petitioners defence against eviction, was again fixed for arguments and the learned Rent Controlling Authority by placing reliance on the Supreme Court decision reported in 1985 MPRCJ 127 : (AIR 1985 SC 582) (S. Sundaram v. V. R. Pattabhiraman) and placing reliance on another decision of this Court reported in 1984 MPRCJ (Note) 112 (Ramji Das v. Mst. Ratanbai) struck off the petitioners' defence and ordered their eviction within two months of the date of the order dt. 16-12-85. The petitioners challenged the said order in C.R. No. 65 of 1986, which was partly allowed on 14-1-87 and the case was remanded back to the Rent Controlling Authority for recording evidence as the previous order dt. 16-12-85 was passed by the learned Rent Controlling Authority without recording any evidence whatsoever in support of the respondents case. However, the order as regards striking out of the defence was maintained.

6. After remand, the Rent Controlling Authority recorded respondents evidence and passed the impugned order of ejectment on 21-5-87 in case No. 90/7/188/84-85 by holding that the respondent has succeeded in proving his case of bona fide requirement in respect of the suit accommodation.

7. Being aggrieved, the petitioners filed the present revision petition in this Court.

8. At the hearing of this petition, on the question whether the Rent Controlling Authority has jurisdiction to strike out defence of a tenant in proceedings instituted for ejectment under Section 23-A of the said Act, the learned single Judge felt that there being conflicting decisions of this Court on this point, the controversy deserves to be resolved by a larger bench. It is in these circumstances that this reference has come before us for decision.

9. Shri G. L. Oza, J. (as he then was) in the case reported in 1986 MPRCJ 137 (D. R. Jha v. Shri Ram Sharma) has held that under Section 23-A the Rent Controlling Authority has no jurisdiction to entertain a claim for arrears of rent or for ejectment on the ground of arrears and the provisions of Section 13(1) or (2) are not applicable in a suit or proceeding before the Rent Controlling Authority for eviction on the ground of genuine requirement.

10. In another decision reported in 1987 MPRCJ 92 (Sobran Singh v. Deendayal Goel) Dr. T. N. Singh J. has held that in a proceeding for eviction filed by the landlord under Section 23-A before the Rent Controlling Authority, landlord's claim for arrears of rent is not maintainable before that authority since he has no jurisdiction to consider the question of eviction on the ground of arrears of rent.

11. On the other hand Shri K. M.Agarwa!, J. in the decision reported in 1986 MPRCJ (Note) 86 (Sayed Mumtaz Ali v. Abdul Tawab) has held that in an application filed under Section 13(6) of the said Act by the landlord for striking out the defence due to default in depositing the rent before the Rent Controlling Authority, tenant is bound to pay arrears of rent and monthly rent, as per law.

12. Similarly Shri K. L. Shrivastava, J. in the decision reported in 1987 MPRCJ (Note) 15 (Anil Kumar v.Kamal Singh) has held that in a suit for eviction filed ,by the landlord under Section 23-A of the said Act on the ground of bona fide requirement, if arrears of rent are not deposited as stipulated under Section 13( I) of the said Act, on an application being filed by the landlord before that Authority under Section 13(6), the view taken by the Rent Controlling Authority that it had no jurisdiction to condone the delay and consequently struck off the defence, is not correct. It has, therefore, been held that the Rent Controlling Authority has the jurisdiction to condone the delay and extend the time for deposit. In short, if the Rent Controlling Authority has the power to condone the delay it has also the power to strike out the defence.

13. At the outset we may refer to the provisions of Section 13(1) and Section 23-H of the M.P. Accommodation Control Act, 1961 :

'13, When tenant can get benefit of protection against eviction.-- (1) on a suit or any othet proceeding being instituted by a landlord on any of the grounds referred to in Section i'2 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 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 tc itallow 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 up to 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 as 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 pf rent payable by the tenant, the Court shall, on a plea made either by 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 this account at any subsequent stage.

(3) If, in any proceeding referred to in Sub-section (1), there is any dispute as to the person or persons to whom the rent is payable, the Court may direct the tenant to deposit with the Court the amount payable by him under Sub-section (1) or Sub-section (2), and in such a case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. If the Court is satisfied that any dispute referred to in Sub-section (3) has been raised by a tenant for reasons which are false or frivolous, the Court may order the defence against eviction to be struck out and proceed with the hearing of the suit.

(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.

(6) If a tenant fails to deposit or pay any amount as required by this section, 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.'

'23-J.Deposit of rent pending proceedings for eviction or for revision. The provisions of Section 13 shall apply 'mutatis mutandis'in respect of an application for recovery of possession of accommodation under Section 23-A and in respect of proceeding for revision under Section 23E against final order by the Rent Controlling Authority under Section 23-C or under Section 23-D as they apply to a suit or proceeding instituted on any of the grounds referred to in Section 12 :

Provided that no suit or proceeding for eviction of the tenant is pending before any Court at any of its stages in relation to the same accommodation.'

14. The learned counsel for the petitioner did not dispute the fact that the Rent Controlling Authority is a 'Court' as decided in AIR 1957 Madh Pra 11 (Makhnobai v. Rameshwar Dayal) 1956 MBLJ 1267 as also under Section 29 of the M.P. Accommodation Control Act, 1961, He, therefore, did not dispute that the Rent Controlling Authority is a 'Court' as contemplated under Section 13(1) of the said Act.

15. The decision reported in 1985 MPRCJ 127 : (AIR 1985 SC 582) (supra) cannot be applied to the facts of the present case as that case was decided under the provisions of Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, wherein the Rent Controlling Authority had the jurisdiction to decide all cases of eviction including on the ground of default of payment of arrears of rent by the tenant for the period prior to the filing of the suit after service of demand notice on that ground.

16. In the case reported in 1984 MPRCJ (Note) 112 (supra) it is not clear whether in that case the landlord had demanded any arrears of rent prior to the date of the filing of the application or that eviction was sought on the ground of default in payment of arrears of rent as contemplated under Section 12(1) (a) of the said Act. In fact in that case the tenant had denied his relationship with the landlord and, therefore, he did not pay any rent that became due every month after the filing of the eviction suit before the Rent Controlling Authority and it is in these circumstances it has been, held that in such a case defence against eviction of the tenant can be struck off under Section 13(6) of the said Act.

17. Admittedly and undisputedly in an application filed by a landlord covered under Section 23-J of the said Act on the ground of Section 23A thereof, the Rent Controlling Authority has no jurisdiction to pass any decree or order for arrears of rent claimed prior to the date of the application nor he has any jurisdiction or authority to pass a decree .of eviction on the ground of Section I2(l)(a) of the said Act.

Therefore, in the decision reported in 1986 MPRCJ 137 (supra) and 1987 MPRCJ 92 (supra) it has been rightly held that the Rent Controlling Authority has no jurisdiction to pass any decree for arrears of past rent nor he has the jurisdiction to pass a decree of eviction on the ground of Section 12(l)(a) of the said Act even though the tenant may have committed default as contemplated by that section. In such a case for claiming arrears of rent and for eviction on the ground of Section 12( l)(a) of the said Act, the only remedy of the landlord is to file a regular civil suit in the Civil Court having jurisdiction. In fact in the decision reported in 1986 MPRCJ 137 it has been clearly held that under Section 13(1) after the application is filed before the Rent Controlling Authority the tenant is bound to deposit every month the rent as contemplated under Section 13(1), but is not bound to deposit any arrears of rent nor the Rent Controlling Authority has any jurisdiction to pass any decree or order for recovery of arrears of rent. It has further been held therein that as it is clear that under Section 23-A the Rent Controlling Authority had no jurisdiction to pass any order or direction or a decree in respect of arrears of rent, the application of the provisions of Section 13(1) or (2) in respect of arrears of rent will not arise in a suit or proceedings before the Rent Controlling Au'thority for eviction on the ground of genuine requirement. It has further been held therein, that it is also clear that the petitioner-tenant who was permitted to defend is bound under Section 13(1) to deposit rent commencing from the month of November, 1983 when an application was made before the Rent Controlling Authority till the decision of that case and, therefore, it is also held that - 'It is further directed that as the question of arrears is not within the jurisdiction of the Rent Controlling Authority the petitioner-tenant shall deposit before the Rent Controlling Authority all rent from Nov. 1983 till to-day within two months from today and the Rent Controlling Authority having granted permission to the petitioner to defend shall proceed to dispose of the proceedings before it in accordance with law.'

18. Similarly in the decision reported in 1987 MPRCJ 92 (supra) it has been held that though a ground under Section 12(l)(a) of the Act may be available to the landlord against his tenant in a case filed by the landlord under Section 23-A for eviction before the Rent Controlling Authority and has also claimed arrears of rent, that application becomes non-maintainable before the Rent Controlling Authority since he has no jurisdiction to consider the question of eviction on the ground of arrears of rent.

19. In the decision reported in 1987 MPRCJ (Note) 15 (supra) it has no doubt been held that in an application for eviction filed under Section 23A on 15-11-83 by the landlord, notice of which was served on the tenant on 3-12-1983, by 3-1-1984 the tenant ought to have deposited all the arrears of rent claimed therein which became due prior to 15-11-1983 and, therefore, he having not deposited the same by 3-1-1984 but had deposited the same amounting to Rs. 2700/-on 13-1-84 and the subsequent current monthly rent amounting to Rs. 180/- on 6-3-84, the view taken by the Rent Controlling Authority that it had no jurisdiction to condone the delay and extend the time for deposit is wrong. Thus, it has impliedly beenheld that the Rent Controlling Authority had the jurisdiction to strike out the defence against eviction under Section 13(6) of the said Act in such a situation. In our opinion, this view does notholdgood law and the said decision to that extent has to be and is hereby overruled.

20. So far as the decision reported in 1986 MPRCJ (Note) 86, it does not appear that the view taken therein is in any way in conflict or contrary to the decisions reported in 1986 MPRCJ 137 or 1987 MPRCJ 92. In fact, the facts of this case would reveal that in that case the landlord had not claimed any arrears or rent prior to the filing of the application before the Rent Controlling Authority. In fact by placing reliance on the provisions of Section 23-H of the said Act it has been held that even if arrears of rent were not claimed by the applicant, the non-applicant (tenant) was bound to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to rent at that rate till the decision of the application for ejectment filed under Section 23A of the Act. It has further been held that under the circumstances, the proper course open to the Rent Controlling Authority was to direct the non-applicant (tenant) to deposit or pay the rent from the date of the application for ejectment and till the date of its disposal on merits. It was, therefore, ordered that the application for ejectment was admittedly filed in the month of March 1984 and the agreed rate of rent was Rs. 75/-per month. Accordingly the non-applicant deserves to be directed to pay the rent from March, 1984 to Sept. 1985 i.e. 19 months at the agreed rate of Rs. 75/- per month and to further continue to deposit month by month by the 15th of each succeeding month a sum equivalent to rent at that rate till the decision of the application for ejectment.

21. Even in the Full Bench decision reported in 1987 MPRCJ 79: (AIR 1987 Madh Pra 50), (Paraschand v. Hemant Kumar) it has been held as under :

'By the Amending Act of 1983, Chapt. IIIA was inserted which provided the procedure with regard to eviction of tenants on grounds of bona fide requirements. Under this Chapter a landlord cannot submit an application to the Rent Controlling Authority for eviction of tenants on the grounds other than the bona fide requirements as has been dealt with under Section 23-A, which was inserted in Chapt.III-A by Section 8 of the Amending Act of 1983. Thus, in respect of the other grounds not covered by Section 23-A the suit for eviction could well be filed in the competent Court.'

Therefore, we are unable to agree with the submission of the learned counsel for the petitioner that the entire provisions of Section 13 of the M.P. Accommodation Control Act, 1961 are not attracted in an application filed by the landlord under Section 23-A of M.P. Accommodation Control Act. We also see no force in the submission of the learned counsel for the respondent that in an application filed by the landlord under Section 23-A of the said Act before the Rent Controlling Authority, in which he has claimed past arrears of rent which were due prior to the date of filing of the application before the Rent Controlling Authority that the tenant with one month from the service of notice in that case is bound to deposit with the Rent Controlling Authority or pay to the landlord all those arrears of rent prior to the date of filing of the application.

22. In the result the reference is answered accordingly.

23. As the Rent Controlling Authority has no jurisdiction or authority to pass a decree for arrears of rent claimed which had fallen due prior to the filing of an application for eviction under Section 23-A of the said Act, nor he has any jurisdiction or authority to pass a decree for eviction under Section 12(1) (a) of the said Act the tenant is not bound to deposit those arrears of rent with the Rent Controlling Authority in such a case. For those past arrearsof rent the landlord has the only remedy of approaching the competent Civil Court. Therefore, the Rent Controlling Authority cannot call upon the tenant to deposit past arrears of rent nor for failure of the tenant to deposit the same he can strike out the defence of the tenant as contemplated by Section 13(6) of the said Act because in such a case the first limb of Section 13(1) is not attracted.

24. In view of the provisions of Section 23-H of the Accommodation Control Act, in an application filed by the landlord against his tenant under Section 23-A of the said Act, the tenant within one month from the date of service of notice of that application is bound to deposit or pay to the landlord the rent which is due from the date of the filing of the application before the Rent Controlling Authority and shall continue to deposit the same or pay to the landlord by the 15th of each succeeding month till the decision of the application of the landlord by the Rent Controlling Authority on merits, provided no other suit for eviction on other grounds as contemplated by Section 12 of the said Act filed by the landlord against the his tenant in the competent Civil Court is pending. In such a case, if the tenant fails to deposit or pay to the landlord month by month the rent which becomesdue from the date of the filing of the application before the Rent Controlling Authority under Section 23-A of the said Act, on sufficient cause being shown by the tenant the delay in depositing the same by the tenant can be condoned and if the tenant persists in making such default, on an application being filed by the landlord the Rent Controlling Authority has the jurisdiction to strike out the defence of the tenant under Section 13(6) of the said Act.

25. After the filing of an application for eviction under Section 23-A of the said Act before' the Refit Controlling Authority, on the ground of bona fide requirement, if the tenant fails to deposit or pay to the landlord current monthly rent which is due from the date of the filing of the application before that Authority, the Rent Controlling Authority on an application being filed by thelandlord has the jurisdiction to strike out the defence of the tenant as contemplated under Section 13(6)of the said Act.

26. If the tenant, in an application filed against him by the landlord for eviction under Section 23A of the said Act before the Rent Controlling Authority, disputes the rate of rent, the Rent Controlling Authority shall fix the reasonable provisional rent as contemplated by Section 13(2) of the said Act which the tenant is bound to deposit or pay to the landlord from the date of the filing of the said application before the Rent Controlling Authority till the decision of that case on merits.

27. If the tenant, in such a case fails to deposit or pay to the landlord the reasonable provisional rent so fixed within the time granted by the Rent Controlling Authority and also fails to deposit the provisional rent at that rate by the 15th of each succeeding month, on an application being filed by the landlord, the Rent Controlling Authority has the jurisdiction to strike out the defence of the tenant as contemplated under Section 13(6) of the said Act.

28. Cost shall abide the final decision. The case be now listed before the learned single Judge.