Heera Traders vs Kamla Jain

CIVIL APPEAL NO(s).5996-5997_OF 2021 (Arising out of SLP (C) NO(s).13834-13835/2021)

HEERA TRADERS ..APPELLANT(S)

VERSUS

KAMLA JAIN ..RESPONDENT(S)

WITH

CIVIL APPEAL NO(s).5998-5999_OF 2021 (Arising out of SLP(C)No(s).14357-14358/2021)

POOJA COLLECTIONS ..APPELLANT(S)

VERSUS

KAMLA JAIN ..RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. The appeals raise certain common questions apart

from the respondent being common. Hence the common

judgment. By the impugned orders passed in these cases, Signature Not Verified Digitally signed by JAGDISH KUMAR Date: 2022.02.22

the High Court while allowing the application filed by 15:52:56 IST Reason:

appellants under Order XLI Rule 5 of the Code of Civil 1 Procedure and applications for an appropriate direction

to the appellants to pay mesne profits along with the

regular monthly rent and damages filed by respondent,

directed that the appellants shall pay the rent of suit

shops at the rate of Rs.18000/- per month to the

respondent from the date of decree passed by the lower

Appellate Court till the disposal of the Second

Appeals. The appellants were directed to pay the entire

arrears of rent within a period of 2 months failing

which the interim order of protection from eviction

under the decree was to stand vacated.

2. The Respondent is the landlady of the Appellants

in both the appeals. In SLP (Civil) No. 14357-58 of

2021, the appellant was inducted as a tenant of a non-

residential accommodation of 150 square feet for a

monthly rent of Rs. 847/- in the year 1975. On

06.08.2009 the Respondent filed a suit under Section

12 (1) (a), (c), (f) and (h) of the Madhya Pradesh

Accommodation Control Act, 1961, (hereinafter referred

as ‘the Act’). Apart from eviction the respondent also

sought a decree for mesne profit. The trial court

decreed the suit and ordered eviction under Section 12 2 (1) (f) and (h) of the Act. First Appeal filed by the

appellant stood dismissed by judgment dated 25.03.2014.

It is thereupon that the appellant filed a Second

Appeal on 12.06.2014. He moved an application on

18.06.2014. An interim order against eviction was

passed of stay from eviction. Thereafter the respondent

filed an application for Appropriate Directions as

Reply to the application under Order 41 Rule 5 of CPC.

The court directed on 25.04.2016, the Rent Control

Authority to submit a report regarding the prevailing

market rate of accommodation in question making it

clear that the calling of such report did not mean that

a decision was taken on the question whether direction

could be issued on the application filed by the

respondent. On 16.09.2016 the Second Appeal came to be

admitted. The interim order which was passed earlier

came to be made absolute. The Rent Control Authority,

it is alleged, without affording opportunity to the

appellant, submitted a report which was prepared

relying on the Panchnama of the Revenue Inspector. On

17.03.2020, the court proceeded to pass the impugned

order directing the appellant to pay the mesne profit

3 of Rs. 18000/- per month. It was the case of the

appellant that he came to know about the order when the

respondent moved an application for executing the order

dated 17.03.2020 and an application for recall filed

by the appellant of the order dated 17.03.2020 came to

be dismissed.

3. In the other appeal, the appellant was likewise

inducted into a non-residential accommodation

admeasuring 100 square feet on a monthly rent of Rs.

622/-. Otherwise by the order impugned the appellant

has asked to pay rent at the rate of Rs. 18,000/- per

month.

4. We heard the learned Senior Counsel for the

Appellant, Shrimati Shobha Menon and Shri Amit Sahni,

learned Counsel for the Respondent. The contention

raised by the appellant revolves around the proper

interpretation to be placed on Section 13 of the Act.

It is the complaint of the appellant that the High

Court has not borne in mind that the present avatar of

Section 13 was a product of a substitution effected in

the year 1983. It is contended that the decisions of

this court in Atma ram Properties (P) Ltd. v. Federal 4 Motors (P) Ltd.1 and State of Maharashtra v. M/s. Super

Max International Pvt. Ltd.2, which related to the Delhi

Rent Control Act and the provisions relating to Rent

Control in Bombay respectively would not apply. This

is for the reason that the cases arising within the

state of Madhya Pradesh must be dealt with under

Section 13 of the Act. Section 13 protects a tenant

even during the pendency of an appeal against the order

of eviction as long as he deposited the agreed rent.

In this case there is no dispute relating to the rent.

Per contra, Shri Amit Sahni would point out that on a

proper construction of the Section 13 of the Act along

with the other relevant provisions, the conclusion is

inevitable that the impugned order was fully justified.

5. Section 13 of the Act reads as follows: -

“13. When tenant can get benefit of protection against eviction. - [(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

1 (2005) 1 SCC 705 2 (2009) 9 SCC 772 5 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 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 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 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 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

6 (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. (4) 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 e 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.]” (Emphasis supplied)

6. It is to be noticed that Section 13 before being

substituted in the year 1983 read as follows: -

“13. When tenant can get benefit of protection against eviction.—(1) On a suit or proceeding 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 the writ of summons

7 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 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 a sum equivalent to the rent at that rate.

(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 fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub-

section (1) till the decision of the suit or appeal.

(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. (4) 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

8 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.”

7. It is the further case of the landlady that the

definition of the word tenant in the Act is identical

with the definition of the word ‘tenant’ in Delhi Rent

Control Act, in so far as it provides interalia that

upon the passing of an order of eviction the erstwhile

tenant would cease to be a tenant. Therefore, on the

principle enunciated in Atma Ram Properties (supra) and

M/s. Super Max (supra) there can be no rationale or

logic to not extend the said principle and vouchsafe

the same measure of justice to the landlady. He would

further point out that what Section 13 actually

provides is that the tenant must continue to pay the

9 rent even during the pendency of the appeal. The actual

protection against eviction however is provided when

the ground for eviction is arrears of rent. In this

regard he drew support from Section 13 (5). Section

13(5), he points out, protects a tenant, who is found

to be in default of the payment of rent and an order

of eviction is sought, (being protected) from eviction

as long as he continues to pay the rent. As far as

other grounds for eviction against a tenant being

successfully pressed by the landlord culminating in an

order of eviction being passed and upon an appeal being

filed by the tenant as he loses the status of a tenant

going by the definition of the word of tenant when an

order is passed under Order XLI Rule 5 of the CPC, the

Appellate Court is fully justified in putting the

appellants to terms by way of ordering of reasonable

amount as rent as a condition for the grant of stay of

eviction. He pointed out that Section 13 (1) does not

use the word rent.

10 THE CASE LAW RELIED UPON BY THE PARTIES

8. In Shrimati Chander Kali Bai and others v. Shri

Jagdish Singh Thakur and another3, the case arose under

the act in question. The third contention of the

appellants tenants against whom the first Appellate

Court had decreed the suit, which was for eviction,

arrears of rent and also for past and future damages

was that the decree for damages could not be awarded

from the date of the termination of contractual

tenancy. It was contended that it could be awarded from

the date of the Eviction Decree. This Court accepted

the said contention based on the definition of the word

tenant in the Act. In regard to Section 13 of the Act

as it stood prior to the substitution we notice the

following discussion: -

“9. Mrs Seth in support of her argument rightly pressed into service a few other provisions of the Act. Section 13(1) giving protection against eviction on the ground of default in payment of rent provides therein that even after the institution of the suit if he clears off the amount of rent due within a period specified in the section and thereafter “continue to deposit or pay, month by month, by the fifteenth of 3 (1977) 4 SCC 402 11 each succeeding month a sum equivalent to the rent at that rate” calculated at the rate of rent at which he was paying earlier, no decree for eviction can be passed. The conclusion is inevitable, therefore, that if a suit is filed on the ground of non-

payment of rent after termination of the contractual tenancy, the tenant still continues to be a tenant liable to pay rent not only for the past period but in future also. In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy. In Damadilal case, Gupta, J. delivering the judgment of this Court has said at p. 653 (SCC p. 864) with reference to the definition of tenant in Section 2(i) of the Act:

“The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from Section 14 which

12 contains provisions restricting the tenant's power of sub-letting.”” (Emphasis supplied)

9. In Shyamcharan Sharma v. Dharamdas4, a Bench of 3

learned Judges had occasion to deal with the impact of

Section 13 prior to it being substituted in the year

1983. This Judgement is relied upon by the respondent

landlady. It was a case, where a suit was filed for

eviction on the ground of arrears of rent and bonafide

requirement. The ground of bonafide did not appeal to

any of the courts. As regards the ground of arrears of

rent, the trial court protected the tenant under

Section 12(3) of the Act. In appeal by the landlord,

an application seeking condonation of delay in

depositing rent month by month payable after the filing

of the suit came to be rejected by the High Court

holding that the court did not have power to extend the

time. The respondent relied upon the following

exposition.

“4. It is true that in order to entitle a tenant to claim the protection of Section 12(3), the tenant has to make a payment or deposit as required by Section 13, that is to say, the arrears of rent should be paid

4 (1980) 2 SCC 151 13 or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straightway, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by sub-sections (5) and (6) of Section 13. Since there is a statutory provision expressly prescribing the consequence of non-deposit or non- payment of the rent, we must look to and be guided by that provision only to determine what shall follow. Section 13(6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightway passed against him. Section 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction. In other words, the court, having regard to all the circumstances of the case, may or may not strike out the defence. If Section 13 were to be construed as mandatory and not as vesting a discretion in the court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by Section 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out

14 and be liable to summary eviction. We think that Section 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by Section 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by Section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit.

Such a discretion is a necessary implication of the discretion not to strike out the defence. Another construction may lead, in some cases, to a perversion of the object of the Act, namely, “the adequate protection of the tenant”. Section 12(3) entitles a tenant to claim protection against eviction on the ground specified in Section 12(1)(a) if the tenant makes payment or deposit as required by Section

13. On our construction of Section 13 that the court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection of Section 12(3). One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit. Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the

15 suit was not made in Section 13(1) as the consequence of non-payment was proposed to be dealt with by a separate sub-section, namely, Section 13(6). Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would, therefore, be no question of striking out the defence and, so, there would be no question of Section 13(6) covering the situation.”

10. We must notice that the respondent landlady is obviously pressing the point that the purport of

Section 13 cannot be divorced from the ground of

eviction namely the tenant committing default in

payment of rent before the suit or during the pendency

of the proceeding. In Ram Murti vs. Bhola Nath and

another5, this Court purported to follow the Judgment

in Shyamcharan Sharma (supra). The case arose under the

Delhi Rent Control Act. In short, the principle that

emerges is that the court has power to extend the time

to pay the defaulted rent instead of striking out the

tenant’s defence against eviction. The respondent

5 (1984) 3 SCC 111 16 relied on M/s. Frick India Ltd. v. Union of india and

others6 for the proposition that the heading of a

section cannot control the meaning of the provision.

This again we must notice is an attempt to persuade the

court that it must not be overwhelmed by the heading

of Section 13 which declares as follows: -

“When tenant can get benefit of protection against

eviction”.

11. In Pushpa Devi and Others v. Milkhi Ram (Dead) by his Lrs.7, which is relied upon by the appellants, this

court laid emphasis on importance of contextual

construction of a statue. We notice the following

statements: -

“18. It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body of the statute unless the context requires otherwise. “The context” as pointed out in the book Cross-Statutory Interpretation (2nd edn. p. 48) “is both internal and external”. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of

6 1990 (1) SCC 400 7 1990 (2) SCC 134 17 the Act. The external context involves determining the meaning from ordinary linguistic usage (including any special technical meanings), from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles.

19. The opening sentence in the definition of the section states “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the legislature.”

12. In Jamnalal and others v. Radheshyam8, this court

considered Section 13 again prior to it being

substituted in the year 1983. We notice the following:

“11. The scheme of Section 13 of the Act suggests that the provisions thereof are intended for the benefit of both the tenant as well as the landlord. While Section 13 affords protection to a defaulting tenant, willing to abide by the obligation to pay the rent regularly, against eviction on the ground of default in payment of rent, it also ensures payment of rent to the landlord, which he is entitled to receive for both the

8(2000) 4 SCC 380 18 pre-litigation period as well as during the pendency of the litigation. A perusal of sub- section (1) of Section 13 discloses that it imposes twin obligations on the tenant against whom a suit or proceeding is instituted on any of the grounds mentioned in sub-section (1) of Section 12. The first is that within one month of the service of the writ of summons on him or within such further time as the court may, on an application made to it, allow in this behalf, the tenant shall deposit in the court or pay to the landlord an amount, representing (a) arrears of rent for the period for which the tenant may have made default, and (b) rent for the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made, duly calculating the same at the rate of rent at which it was paid. And the second is payment/deposit of rent for the period thereafter, that is, future rent which he shall continue to deposit or pay, month by month, by the 15th of each succeeding month, at that rate. For the purpose of depositing the amount of rent, sub-section (1) refers to three periods in chronological order, i.e.,

(i) period for which arrears of rent are due, which is the subject-matter of notice of demand served on the tenant;

(ii) period for which rent became due subsequent to the notice of demand till the date of deposit of rent in court; and

(iii) period for which rent will become due in future, after the date of deposit as aforementioned, till the decision of suit or appeal.

19 The following illustration will help in elucidating the import of the provisions under consideration; if a tenant has last paid rent of tenanted premises, say, @ Rs 1000 for the month of January and did not pay for the months of February, March and April and notice of demand claiming arrears of rent for those months was served on him in May, the Act permits him to pay the arrears of rent within two months of service of demand, i.e., till the end of July. Assuming he has failed to do so and the landlord files the suit under Section 12(1)(a) of the Act of which writ of summons is served on the tenant on September 15, for his appearance in the court, he has the second opportunity to pay arrears of rent in court within one month of service of summons on him i.e. till October 14 or within such further time as the court may allow; but at that stage along with arrears of rent for the said months he has also to pay/deposit rent for the months from May to the end of September. The second obligation of depositing the future rent continuously from month to month covers the period commencing from October and ending with the decision of suit or appeal. The arrears of rent and the future rent for each month, in the illustration, have to be calculated at the rate of Rs 1000.

12. The above stated two obligations are independent of each other. Compliance with the second does not depend upon fulfilment of the first obligation. It is evident that Section 13(1) applies to institution of a suit on any of the grounds in clauses (a) to

(p) of Section 12(1) and not merely to one 20 under clause (a) — default in payment of rent. In cases under clauses other than (a), the tenants might have been paying the rent regularly and the question of payment/deposit of arrears of rent or rent for the period subsequent to service of summons, may not arise. Can then, based on the word “thereafter”, it be argued that there will be no liability to deposit future rent — the second obligation noted above. In our view such a contention will be defeating the object of the provision and will be impermissible. Having stated how the amount of rent payable by the tenant for the periods specified therein should be calculated and deposited, the provision imposes further obligation to deposit the rent month by month till the termination of the suit or proceedings. The word “thereafter” is merely indicative of the sequence of the second obligation to deposit the future rents; it is certainly not suggestive of the fact that if the first obligation for any reason cannot be complied with then the occasion to comply with the second obligation does not arise or that it automatically comes to an end. It would be unthinkable that that could be the intention of the legislature.” (Emphasis supplied)

13. In Sobhagyamal and another v. Gopal Das Nikhra9, this court had occasion to deal with Section 13 after

it was substituted and in the form in which it arises

9 (2008) 3 SCC 788 21 for our consideration. It was a case where the tenant

stood protected from eviction in the first round of

litigation where the landlord set up the plea of

arrears of rent. However, while the matter was pending

before this court in SLP, the tenant had committed

default in payment of rent. This led to a fresh

proceeding for eviction. Noticing the embargo against

a tenant availing the benefit of Section 12 (3) more

than once, this court has laid down as follows: -

“9. A landlord can seek ejectment of his tenant from the premises let out to him only on the ground(s) enumerated in Section 12 of the Act. Clause (a) of sub-section (1) of Section 12 of the Act authorises the landlord to seek ejectment of his tenant if he has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the service of notice demanding the arrears of rent. Sub-section (3) of Section 12 puts a caveat on the right of the landlord to get ejectment on the ground of arrears of rent if the tenant makes payment or deposit as required by Section 13.

However, by virtue of the proviso to sub- section (3), the benefit given to the tenant, on compliance with the payment of rent as provided under Section 13, would be available to him only once in respect of that accommodation, but on default in the payment of rent in respect of same accommodation for three consecutive months he would not be

22 entitled for protection by depositing the rent as provided under Section 13 in the subsequent proceedings initiated by the landlord for ejectment of the tenant on the ground of arrears of rent.

10. Section 13 of the Act requires that the tenant shall within one month of the service of writ of summons or notice of appeal or of any other proceeding deposit the rent when the proceedings are initiated by the landlord on any of the grounds referred to in Section 12 or within one month of institution of appeal or any other proceeding when taken by the tenant against any decree or order for his eviction. The period of one month given to the tenant for depositing the rent from the date of the summons or the notice of appeal or of any other proceeding could be extended by the court on an application made to it. The rent which is required to be deposited under the section can be in the court or it may be made over to the landlord. The section further requires that after the deposit of the arrears of rent the tenant shall continue to make deposit or pay month by month by 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. Sub-section (5) of Section 13 provides that if the 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 recovery of possession on the ground of default in the payment of rent by the tenant. Sub-section (6) gives an option to the landlord if the tenant does not deposit the rent or pay it 23 to the landlord as required under Section 13 to move an application for the defence against eviction to be struck out. Sub- section (5) of Section 13 has no application in a case when the ejectment is not sought by the landlord on the ground of arrears of rent, but the suit is instituted by the landlord on any other ground(s) of Section 12 of the Act. Striking out of the defence of the tenant on an application moved by the landlord, is a provision applicable in the suit for ejectment on any of the grounds mentioned under Section 12 inclusive of under Section 12(1)(a) of the Act, whereas sub- section (5) of Section 13 would apply only when the suit is instituted for ejectment on the ground of arrears of rent under Section 12(1)(a) of the Act.

11. From the aforesaid, it is clear that Section 12(3) of the Act provides for an exception to the general rule contained in Section 12(1)(a) that in the event tenant becomes a defaulter, he is liable to be evicted. From the proviso to Section 12(3) of the Act, it is clear that the protection given to the tenant is only one-time protection. Proviso appended to Section 12(3) controls the main provisions. The exemption contained in Section 12(3), thus, is not extended to the tenant who becomes a defaulter for more than once. In view of the aforesaid, we are of the opinion that once the tenant had availed the benefit of the proviso to Section 12(3) of the Act, the said benefit was not available to the tenant in committing a further default in payment of rent for three consecutive months.” 24

14. Respondent relies upon decision of the Full Bench in Mankunwar Bai and others v. Sunderlal Jain10. The

question, which arose was, whether the tenant was

obliged to pay time-barred rent under the first part

of Section 13(1) of the Act. No doubt, the Court was

dealing with Section 13 prior to substitution in 1983.

The Court went on to hold that the tenant is not liable

to deposit the time-barred arrears of rent,

particularly having regard to the requirement in

Section 12(1)(a) that the arrears of rent must be

legally recoverable from the tenant. In the course of

the said Judgment, the Court held that the expression,

“the period for which the tenant may have made

default”, as pointed out above, refers to the default

under Section 12(1)(a).

15. The definition of the word “tenant” in Section 2(i) undoubtedly does not include any person against whom

an Order or Decree for Eviction has been made. It would

not include even a tenant, against whom, an Order of

Eviction has been made under Section 12(1)(a), which

10 AIR 1978 MP 165 / 1979 ILR MP 676 25 provides that default in payment of rent within two

months of the demand for the arrears of rent, shall be

a ground to evict. Section 13 on the other hand starts

with the heading ‘when tenant can get the benefit of

protection against eviction’. It is correct that the

heading of a section cannot control the construction

of the provision itself. The provision, as it unfolds

under the heading, must be given the full meaning

according to the principles of interpretation, which

the court is persuaded to apply. The only area where

the heading may be useful is when the provision is

shrouded in ambiguity. The heading may shed some light,

however, faint it may be.

16. The provisions of Section 13, as it stood prior to substitution in the year 1983, did not embrace a

situation where any Appeal or other proceeding was

filed by a tenant. On the other hand, under the

erstwhile avatar, the Law-Giver confined the provision

to a situation where a Suit or proceeding was

instituted by the landlord.

17. We may notice that the majority of the Full Bench of the Madhya Pradesh High Court in a case in S.S. 26 Harishchandra Jain and others v. Dr. Captain Indersingh

Bedi11, took the view that Section 13 applied only to

Suits. It was further held that the words, “other

proceedings”, in the opening part of Section 13, is

without meaning in both sub-Sections (1) and (2) of

Section 13. It was further held that the object of

Section 13 is to put a check on the unscrupulous tenant

who would protract litigation without payment of rent.

It was further held that in the tenant’s appeal,

application of Section 13 was unnecessary because the

landlord could execute the Decree and recover rent and

if a stay was sought, condition of payment of rent

could be imposed. This view came to be reiterated by a

7-Judges Bench in AIR 1978 MP 143 and the Court held

as follows:

“17. We answer the question referred to us in the negative. Agreeing with the dicta in Harishchandra v. Indersingh, 1977 MPLJ 417 : (AIR 1977 Madh Pra 199 (FB)), we hold that Section 13 of the M.P. Accommodation Control Act, 1961, does not apply, and no part of that section applies, to an appeal (whether the appeal be by the tenant or by the landlord) and that the law was correctly laid down in Harishchandra's case and it continues to be so because their Lordships'

11 AIR 1977 MP 199 27 decision in Radha Kishan v. Gopal Modi, (1977) 2 SCC 656 : AIR 1977 SC 1217 is clearly distinguishable, the provisions of the Bihar Act being different from those of the Madhya Pradesh Act. Further, we say with respect that Ratanchand v. Rajendra Kumar (AIR 1970 Madh Pra 1 (FB)) (supra) did not lay down law correctly when it held that S. 13 applies to an appeal also.”

18. It is apparently, in the light of this view, which came to be pronounced on 14.01.1978, that the

Legislature stepped in and substituted Section 13 by

Act 27 of 1983.

19. Let us first analyse the impact of Section 13, as

it stood prior to its substitution in the year 1983.

Section 12(1)(a) confers a right upon the landlord to

seek eviction on the ground of the tenant falling into

arrears of rent and remaining in arrears even after

service of a notice of a demand. The default should

persist for two months from the service of demand. The

demand must relate to arrears of rent not barred by

time. This is a ground available under Section

12(1)(a). It constitutes a cause of action for seeking

eviction. However, Section 12(3) provided and continues

to provide that no Order for the Eviction of a tenant

28 shall be made on the ground under Section 12(1)(a), if

the tenant makes payment or deposit, as contemplated

in Section 13. The proviso to Section 13, however,

tabooed and continues to prohibit the invocation of the

protection under Section 12(3) read with Section 13,

more than once, in respect of any accommodation. The

tenant, in other words, stands shielded from eviction

despite the availability of the ground under Section

12(1)(a), leading to an Eviction proceeding being

filed. But, in respect of the same accommodation, in

respect of which, the default took place, the tenant

does not get insulated from eviction, if he defaults

in payment of rent for the same accommodation for three

consecutive months. This was the protection, which was

actually contemplated under Section 13, prior to

Section 13 being substituted in the year 1983. Till

1983, thus, the protection could not be availed by any

tenant on the ground of payment of rent by him during

the proceeding for eviction or Appeal.

20. After Section 13 was substituted in 1983, the legislative intent marks a shift. The tenant is obliged

not only when a Suit or other proceeding is filed by

29 the landlord to deposit the amount in terms of Section

13, but he is compelled by law, even after an Order of

Eviction has been passed against him and when he

challenges the Decree or Order for Eviction by way of

an Appeal or other proceeding, to deposit within one

month of the institution of the Appeal or other

proceeding the amount equal to the rent. He may also,

on an application made to the court, deposit the amount

or pay within such further time, as the court may allow.

The amount, to be paid by the tenant, is to be

calculated at the rate of the rent at which it was

paid. So far, there is no controversy.

21. The conundrum is introduced by the following words in Section 13 “for the period for which the tenant may

have made default”. It is here that the debate

sharpens. The respondent-landlord would emphasise that

the Law-Giver has only intended that the protection

from eviction, on the ground of arrears of rent, would

be applicable in an Appeal or other proceeding by the

tenant against the Decree or Order for eviction on such

ground. In other words, the interpretation, placed by

the respondent, can be summed-up as follows. In a case,

30 where there is a Suit filed by the landlord for

eviction, invoking Section 12(1)(a), alleging that the

tenant has fallen in arrears of rent and an Order of

Eviction is passed, then, if a tenant were to appeal

or file any other proceeding, in such a case, the tenant

must deposit the amount of rent for the period, for

which, the tenant may have made default. Not only must

he make payment for the period of default, which led

to the proceeding, but he must continue to pay or make

deposit for the period subsequent thereto upto the end

of the month previous to that in which the deposit or

payment is made. The third limb also must be complied

with by the tenant in an Appeal or other proceeding by

him against the Decree or Order of Eviction, which is

that during the pendency of the Appeal or other

proceeding by him, he must continue to deposit or pay

month-by-month, by the 15th of each succeeding month,

the amount equivalent to the rent, at the rate of which,

it was being paid till the decision is rendered in the

Appeal or proceeding.

22. At this juncture, we may notice one of the salient features of the Act. Section 11A provides that Chapter

31 III, in which Sections 12 and 13 appear, shall not

apply to matters provided, especially in Chapter IIIA

to a landlord defined in Section 23J. Section 23J

defines “landlord”, for the purpose of Chapter IIIA,

as retired Government Servant, widow, a divorced wife

and physically handicapped person, inter alia. The

proceeding is instituted under Chapter IIIA before the

Rent Controlling Authority (hereinafter referred to as,

‘the Authority’). The grounds for eviction under

Chapter IIIA are bonafide need for the residential and

non-residential purposes. The ground of arrears of rent

is conspicuous, it must be noticed by its absence in

the proceeding under Chapter IIIA. The right of the

tenant is constrained by restrictions, as provided in

Section 23C. He must obtain leave to contest. Section

23D provides for the procedure to be followed by the

Authority to grant leave. Section 23E declares that no

Appeal shall lie from any Order passed by the

Authority. However, Section 23E(2) clothes the High

Court with revisional jurisdiction both suo motu or an

application by an aggrieved person. Section 23F

provides that the stay of operation of the Order of

32 Eviction by the Authority or the High Court, shall not

enure for a total period of more than six months.

Section 23H is relevant and it reads as follows.

“Section 23H. 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 23-E 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.”

23. As far as the proceedings, covered by the landlord, not falling in Section 23J, but falling under Section

2(b), which defines the word “landlord” is concerned,

the Act contemplates the Authority being endowed with

certain powers of a Civil Court under Section 29. An

Appeal is provided to the District Judge or the

Additional District Judge from every Order of the

Authority. Another feature of the Act is that a Second

Appeal lies under Section 32, on grounds, which may be 33 described as being pari materia with Section 100 of the

Code of Civil Procedure, 1908 (hereinafter referred to

as, ‘the CPC’, for short), as it stood prior to the

amendment in the year 1977. The argument of the

appellants is that the word “decree”, used in Section

13, is best appropriated to proceedings before the

Authority under Section 12, by way of the Suit by the

landlord defined under Section 2(b) and the decision

rendered by the Appellate Authority and the High Court

in further Second Appeal. The word “order”, according

to the appellants, in Section 13, is apposite to

describe the decision rendered under Chapter IIIA. We

must indicate that Section 31, which provides for an

Appeal to the District Judges or Additional District

Judge, speaks about an Appeal being maintainable from

every ‘Order’ of the Authority.

24. However, it is apposite to notice that the Act was enacted in the year 1961. Section 12(1), which provides

for grounds of eviction of tenants, provides that no

Suit shall be filed in any Civil Court against the

tenant for his eviction except on any of the grounds

mentioned thereafter. Thus, it is not, as if, a Suit

34 for Eviction in a Civil Court, is not maintainable.

Section 28, however, provided for appointment of

Authority. The Collector, with the previous approval

of the State Government, can appoint an Officer not

below the rank of Deputy Collector, to be the Rent

Controlling Authority for the area in his jurisdiction.

As already noticed, the said Authority was to have the

same powers, as vested in a Civil Court, in regard to

certain matters. Therefore, in an area, where there is

no such Authority notified under Section 28, the Law-

Giver contemplated a Suit before the Civil Court. It

is in this context, apparently, that the law provided

that Section 13 contemplates Decree being passed for

eviction and protection under Section 13 being extended

in an Appeal from such Decree. In fact, in the cases

before us, the proceedings are suits, appeals under

Section 96 of the CPC and second appeals under Section

100.

25. What is, however, relevant from a reference to Chapter IIIA, which provides for eviction on the

grounds of bonafide requirement, is that, vide Section

23H, Section 13 has been made applicable ‘mutatis

35 mutandis’. Section 23H makes Section 13 applicable, not

only in an application for recovery of possession under

Section 23A, but it also is made applicable in respect

of a proceeding for Revision under Section 23E against

a Final Order by the Authority under Section 23C and

Section 23D, as they apply to a proceeding instituted

under Section 12. It must be noticed that Chapter IIIA

was inserted vide the very same amendment (Act 27 of

1983), which also resulted in Section 13 being

substituted. In other words, Section 13, as

substituted, was intended to apply mutatis mutandis,

undoubtedly, to a Revision maintained against a Final

Order under Section 23C or Section 23D. Section 23C

contemplates an Order of Eviction, being passed against

the tenant, if the conditions in the said provision are

satisfied. Section 23F also contemplates a stay being

granted by the High Court in a Revision under Section

23E of the Order of Eviction. Therefore, when Section

13 is made applicable to a Revision filed against an

Order of Eviction under Section 23C, the Revision would

be a Revision filed by the tenant, who has suffered an

Order of Eviction under Section 23C. What is, however,

36 more important is that, under the scheme of Chapter

IIIA, that is the fast-track procedure, as it were,

contemplated for the special categories of landlords

falling under Section 23J, it provides only for

bonafide requirement as the ground for seeking

eviction. If eviction is sought, in other words, on the

ground of arrears of rent, it may be open to the

landlord to invoke the provisions of Section 12. The

special right, however, to invoke the shorter and

faster route to obtain an Order of Eviction, is

available to the landlord, falling under Section 23J,

only in respect of grounds of bonafide requirement. The

relevance of this lies in concluding that, by the

insertion of Chapter IIIA along with the substitution

of Section 13, and by virtue of Section 23H, making

Section 13 applicable even to the proceeding under

Chapter IIIA, when an Order for Eviction is passed

under Section 23C and the tenant challenges such an

Order of Eviction by a Revision, he is expected to pay

the amount, as provided in Section 13(1), during the

pendency of the Revision.

37

26. No doubt, in a proceeding under Chapter IIIA, the Law-Giver has limited the operation of a Stay Order of

Eviction to the total period of six months.

27. As already noticed, as far as a proceeding

contemplated under Chapter III by the ordinary landlord

is concerned, if we may use that expression, falling

under Section 2(b), Section 13, as such, applies. We

have only attempted to divine the impact of Section

23H, to find that, even in a proceeding by the special

category of landlords, falling under Section 23J, and

what is more, where eviction cannot be sought under

Chapter IIIA, on the ground of arrears of rent, Section

13 applies even after the passing of the Order for

Eviction, when the matter is pending in a Revision.

This aspect helps to reveal the mind of the

Legislature, and the ambiguity shrouding its real

intention, is to some extent, effaced.

28. We may now proceed to finally interpret Section 13 as it is. Section 12(3) continues to grace the Statute

Book. Thus, in a proceeding under Section 12(1)(a),

viz., a petition seeking eviction on the ground of

38 arears of rent, the Act protects the tenant by

permitting him to deposit the amount in arrears, which

constitutes a ground for seeking eviction, in the first

place, in the manner provided in Section 13. As

explained by this Court in Sobhagyamal (supra), the

tenant, in default of payment of rent, gets a new lease

of life, despite the default being the ground for

eviction, to ward off the passing of an Order of

Eviction by virtue of Section 12(3). Undoubtedly, in

order that Section 12(3) apply, not only must the

tenant pay the amount in arears, which is the basis for

the application under Section 12(1)(a), but he must

continue to pay the amounts, which are further

mentioned in Section 13. Section 13(5), no doubt, again

must be read along with Section 12(3). Section 13(5)

interdicts the passing of the Decree or Order by the

Court for recovery on the ground of default of payment

of rent if compliance was made by the tenant of the

requirement under Section 13(1) or Section 13(2). The

Court is, however, authorised to allow costs. It is

clear that Section 13(5) is totally inapplicable in the

case where the ground of eviction is a ground other

39 than under the one in Section 12(1)(a). In other words,

Section 13(5) applies only in a case, where the

landlord invokes default in payment of rent, as a

ground for eviction. The argument of the respondent-

landlord, therefore, is that this circumstance, along

with the use of the words, “for the period for which

the tenant may have made default”, in Section 13, would

indicate that the protection from eviction, is not

available unless the suit is made under Section

12(1)(a). To make it further clear, the argument is

that the Legislature has articulated the intention to

protect the tenant upon his paying the amount under

Section 13 only qua the tenant sued for eviction on the

ground of arears of rent. The landlord further argues

that Section 13(6) indicates that, if there is failure

on the part of the tenant to pay or deposit the amount

under Section 13, the Court is free to strike off the

defence and proceed with the hearing of the matter. Section 13(6) has been interpreted by this Court, as

noted by us earlier in Shyamcharan Sharma (supra). As

held by this court, the Court has a discretion to

condone the default in payment of rent and extend the

40 time of payment of rent. Section 13(6) does not compel

the Court to order eviction of a tenant, found in

violation of Section 13. This view has also been

followed in Ram Murti (supra), as well.

29. The opening words of Section 13 provide that, on

a Suit or any other proceeding, being instituted by a

landlord on any of the grounds referred to in Section

12, the tenant is to deposit in Court or pay to the

landlord, the amount equal to the rent. Can it,

therefore, be contended that the words “any of the

grounds”, referred to in Section 12, is to apply only

to a situation where Suit or any other proceeding is

instituted by the landlord? To expatiate, after the

above opening words in Section 13, by virtue of the

substitution effected by Act 27 of 1983, can it mean

that the words “or in an Appeal or in any other

proceeding by a tenant against any Decree or Order for

his eviction”, is not to be read along with “on of the

grounds referred to in Section 12”? To put it in a

different manner, can it be said that the substituted

provisions of Section 13 contemplated that the Appeal

or any other proceeding by the tenant, must be in a

41 proceeding instituted only under Section 12(1)(a),

i.e., on the ground of arrears of rent, for the reason

that the construction of the provision, which consists

of an elongated sentence to which meaning cannot be

attached, except by bearing in mind the statutory duty

of the tenant to deposit the amount for the period for

which the tenant may have made default. In other words,

if the words “for the period for which the tenant may

have made default” is an indispensable requirement to

apply Section 13, then the substituted provisions,

extending the protection in an Appeal or other

proceeding by a tenant, would be confined to a

proceeding under Section 12(1)(a). In this regard, we

may also look for any inkling available in Section 13

for the proposition that Section 13 is attracted in an

Appeal or other proceeding by the tenant, on any of the

grounds under Section 12. In this regard, in

Sobhagyamal (supra), this Court, we may recapitulate,

has held as follows:

“Striking out the defence of the tenant, on an application moved by the landlord, the provision applicable in the Suit for ejectment on any of the grounds mentioned under Section 12, inclusive of under Section 42 12(1)(a) of the Act, whereas sub-Section (5) of Section 13 would apply only when the Suit is instated for ejectment on the ground of arrears of rent under Section 12(1)(a) of the Act.”

This would mean that Section 13 would apply even

if the ground of eviction is not one under Section

12(1)(a).

30. As we have already found, the words “Appeal or proceeding, as the case may be”, were inserted in sub-

Section (6) of Section 13 by Act 27 of 1983. This was

in keeping with the substitution effected in Section

13(1), whereby the words “or in any Appeal or any other

proceeding by a tenant, against any Decree or Order for

his eviction”, also came to be added. Therefore, the

legislative history tends to indicate that Sections

13(1) and 13(2) are to apply in any Appeal or other

proceeding against the Order or Decree of Eviction on

any of the grounds under Section 12.

31. Act 27 of 1983, inserted the words “or in any Appeal or any other proceeding by a tenant against any

Decree or Order for his eviction”. The word “any” is

intended to convey a wide meaning. The Decree of

43 Eviction may be a Decree passed on any of the grounds.

It need not be confined to a Decree passed under Section

12(1)(a). This is also to be understood in the context

of the words “on any of the grounds referred to in

Section 12”, being used, preceded by the words in a

Suit or other proceeding instituted by the landlord.

32. The problem persists in the form of the logical culmination of the command to the tenant in an Appeal

or other proceeding, against any Decree of Eviction,

to deposit the rent or pay for the period, for which

the tenant may have made default. Undoubtedly, in the

context of Section 12(1)(a) read with Section 12(3),

the words “for the period for which the tenant may have

made default”, is perfectly apposite. In other words,

when Section 12(3) provides that no Decree shall be

passed for eviction under Section 12(1)(a), if the

tenant makes the deposit or payment of the amount of

rent, under Section 13, it is intended to mean that,

even if the tenant has invited the wrath of Section

12(1)(a), he would be protected under Section 12(3),

if he complied with Section 13, made the deposit within

44 a period of one month or the extended period of the

service of summons and made further deposits/payment.

33. However, Section 13 clearly is intended to apply in a Suit or proceeding instituted by the landlord on

any other grounds under Section 12. If that be so, the

words, “for the period, for which, the tenant may have

made default”, may not apply, as the tenant may not be

in default and no ground under Section 12(1)(a) may

even be pleaded. Therefore, in such a proceeding by the

landlord, the words, “for the period, for which, the

tenant may have made default”, pales into

insignificance and irrelevance. It would then mean

that, in a proceeding under Section 12, which does not

involve Section 12(1)a), or in other words, when there

is no default within the meaning of Section 12(1)(a),

the protection would be available to the tenant, only

if, he makes a deposit or payment for the period during

the pendency of the proceeding. In other words,

throughout the proceeding by the landlord, on any of

the grounds under Section 12, the tenant is obliged to

deposit the amount of rent. The failure to do so, would

attract Section 13(6) and it is open to the Court to

45 strike off the defence and proceed further in the

matter.

34. If that be so, in an Appeal or any other proceeding by the tenant against an Order of Eviction, which does

not involve Section 12(1)(a), the intention of the Law-

Giver appears to be that the tenant, so described,

despite the Order of Eviction and the definition of the

word “tenant” in Section 2(i), is obliged to pay or

deposit the amount of rent under Section 13(1) or

Section 13(2), as the case may be, in the manner

provided, till the termination of the Appeal or

proceeding.

35. We may profitably appreciate the problem through the prism of Section 23H, which we have already

adverted to. Section 23H was also inserted by Act 27

of 1983. Thereunder, the provisions of Section 13 is

to apply mutatis mutandis, inter alia, in respect of a

proceeding for Revision under Section 23E, against an

Order of Eviction under Section 23C, as they apply to

a Suit or a proceeding instituted on any of the grounds

referred to in Section 12. The words “mutatis

mutandis”, is a well-known legislative device, employed 46 for the purpose of adaptation of a law in an altered

context. We may only refer to the following exposition

in the Judgment of this Court Reported in Ashok Service

Centre and others v. State of Orissa12:

“17. … Earl Jowitt's The Dictionary of English Law (1959) defines ‘mutatis mutandis’ as ‘with the necessary changes in points of detail’. Black's Law Dictionary (Revised 4th Edn., 1968) defines ‘mutatis mutandis’ as “with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Housman v. Waterhouse [191 App Div 850 : 182 NYS 249, 251] . In Bouvier's Law Dictionary (3rd Revision, Vol. II), the expression ‘mutatis mutandis’ is defined as “[T]he necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like”. Extension of an earlier Act ‘mutatis mutandis’ to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act. …”

36. It must be remembered that Section 13 contemplates proceedings under Section 12 and on any grounds

12 (1983) 2 SCC 82 47 thereunder. The impact of Section 23H, applying Section

13 mutatis mutandis, is that, since Section 12 is

inapplicable in a proceeding under Section 23A, wherein

the grounds are only of bonafide requirement, as

provided therein, Section 13, in its application under

Section 23H, would mean that the proceeding by the

landlord for eviction is on any of the grounds under

Section 23A. Equally, in the application of Section 13

to the Revision by the tenant against an Order under

Section 23C, the ground of eviction, can only be the

ground under Section 23A. In other words, in its

application to a proceeding under Chapter IIIA, in a

Revision by the tenant against an Order of Eviction,

Section 13 is intended to apply, even though, eviction

is not based on the ground under Section 12(1)(a). This

is for the reason that there cannot be an Order passed

under Section 23A on the ground under Section 12(1)(a),

as the same is inapplicable. Thus, in such a Revision

by a tenant against an Order under Section 23C, the

presence of the words in Section 13, “for the period

for which the tenant may have made default”, would not

become an insuperable obstacle. In other words, in such

48 a Revision, the law obliges the tenant to pay the rent

for the period, which may include the period, into

which, he may have fallen in arrears, before the filing

of the Revision and also for subsequent periods.

37. If this is the position in respect of the manner in which Section 13 is intended to apply, even in a

proceeding under Chapter IIIA, having regard to the

wide words used in the newly substituted avatar of

Section 13, viz., “any Appeal or other proceeding by

the tenant against any decree”, the word “any” should

be read harmoniously with any of the grounds referred

to in Section 12, appearing earlier in Section 13.

Thus, even in an Appeal or other proceeding, Section

13 would apply, despite there being no ground for

eviction under Section 12(1)(a). The law was so enacted

by substitution in 1983, so that during any litigation

launched by the tenant against any Order of Eviction,

the landlord is assured of the amount which is

calculated at the rate of rent at which it was being

paid. Section 13(2) takes care of the situation where

there is a dispute relating to the amount of rent.

49

38. We must notice that the Act also does contemplate the fixation of standard rent. Section 7 deals with

standard rent. It contemplates an increased standard

rent in case of a non-residential accommodation.

Section 8 provides for lawful increase of standard rent

in certain other cases. No doubt the respondent would

point out that after an order or decree of eviction is

passed no application may lie. Even accepting the

same, nothing stands in the way of the rent being

increased till then. Therefore, the Act, as a whole,

contemplated payment of rent in the manner provided in

the Act. If he fails to deposit the amount, the Appeal

or proceeding launched by the tenant, would be

imperilled and an adverse decision, resulting in

eviction, could follow, unless the Court extended the

time for payment of rent.

39. Section 13(1) of the Act is a unique provision, the parallel of which in any other State Law, has not

been pressed into service before us by the respondent.

Section 15 of the Delhi Rent Control Act, 1958, pressed

before us, does not bear resemblance to Section 13(1)

50 of the Madhya Pradesh Act, after the substitution took

place in the year 1983.

THE PRINCIPLE IN ATMA RAM PROPERTIES (P) LTD. V. FEDERAL MOTORS (P) LTD.13

40. The case arose under the Delhi Rent Control Act, 1958. An Order of Eviction was passed on the ground of

illegal sub-letting. In the Appeal by the tenant, the

Tribunal stayed the eviction subject to the tenant

depositing Rs.15,000/- per month, in addition to the

contractual rent. This direction was set aside by the

High Court. This Court took note of the definition of

the word “tenant” that it did not include the person

against whom an Order or Decree of Eviction has been

made. In this regard, we may notice that the definition

of the word “tenant” in Section 2(i) of the Act, under

which, the Appeals arise before us, also provides for

a similar definition. We may notice, in this regard,

paragraphs-17, 18 and 19 of Atma Ram Properties

(supra):

“17. In the Delhi Rent Control Act, 1958, the definition of a “tenant” is contained 13 (2005) 1 SCC 705 51 in clause (l) of Section 2. Tenant includes “any person continuing in possession after the termination of his tenancy” [Section 2(l)(ii)] and does not include “any person against whom an order or decree for eviction has been made” [Section 2(l)(A)]. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali Bai case [(1977) 4 SCC 402] . The respondent tenant herein having suffered an order for eviction on 19-3-2001, his tenancy would be deemed to have come to an end with effect from that date and he shall become an unauthorised occupant. It would not make any difference if the order of eviction has been put in issue in appeal or revision and is confirmed by the superior forum at a latter date. The date of termination of tenancy would not be postponed by reference to the doctrine of merger.

18. That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate

52 court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. [(1999) 2 SCC 325] this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.

19. To sum up, our conclusions are:

(1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-

holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. (2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is

53 liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.

(3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date.”

41. This Judgment has been followed by this Court in State of Maharashtra and another v. Super Max

International Private Limited and others14. The case

arose under the Bombay Rent Act. In fact, in the said

case, the definition in Section 5(11) of the Bombay Act

was not pari materia with the definition in the Delhi

Rent Control Act and the Act in question. After an

exhaustive survey of the case law, which included Atma

Ram Properties (supra) and Satyawati Sharma (D) by Lrs. 14 (2009) 9 SCC 772 54 v. Union of India and another15, this court held as

follows:

“73. In an appeal or revision, stay of execution of the decree(s) passed by the court(s) below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the court, to decline to grant any stay or to grant stay subject to some reasonable condition. In case stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant in revision will not have the protection of any of the provisions under the Rent Act relied upon by Mr Lalit and in all likelihood would be evicted before the revision is finally decided. In the event the revision is allowed later on, the tenant's remedy would be only by way of restitution.

xxx xxx xxx

77. In the light of the discussions made above we hold that in an appeal or revision preferred by a tenant against an order or decree of an eviction passed under the Rent Act it is open to the appellate or the Revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the

15(2008) 5 SCC 287 55 order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.

42. Therefore, the question would finally arise that in a Second Appeal, filed by the tenant, against whom

an Order/Decree of Eviction is passed, on a ground,

other than under Section 12(1)(a), even after the

tenant complies with the requirement of Section 13 and

deposits the rent, as was being paid, whether the

Appellate Court, when approached by the appellants-

tenants, seeking a stay of the execution of the Decree

under Order XLI Rule 5 of the Code of Civil Procedure,

1908 (hereinafter referred to as, ‘the Code’, for

short), they could be asked to deposit an amount

representing a reasonable market value of the rent.

Undoubtedly, in the Act, the definition of the word

“tenant”, does not include a person against whom an

Order or Decree of Eviction has been passed. In the

said sense, the Act can be treated as similar to the

Delhi Rent Control Act. In other words, with the

Order/decree of Eviction being passed, the person who

was tenant till that point of time, ceases to be the

56 tenant. He would become an unauthorised occupant in the

words of this Court in Atma Ram Properties (supra). The

principle in Atma Ram Properties (supra), therefore,

would apply unless Section 13 poses an obstacle in the

path of the Appellate Court directing the payment of

the mesne profits by the appellants as a condition of

stay of execution.

43. In this case, undoubtedly, appellants have invoked Order XLI Rule 5 of the CPC. It is in the said

Application that the High Court has granted a stay,

subject to the condition of payment of amount in a sum

of Rs.18,000/- per month. The landlady filed an

application seeking deposit of the rent which led to

the stay being conditioned. This amount has been

arrived at on the basis of the Report submitted by the

Authority. Undoubtedly, the tenancy relates back to the

year 1975. The rent canvassed by the appellants is

Rs.872/- per month and Rs. 622/- per month.

44. In Section 13 of the Act the law giver has given a section heading ‘when a tenant can get benefit of

protection against eviction’. It is thereafter that the

provisions are enacted. Sub section 5 of Section 13 57 relates only to a suit in which the ground of eviction

is default of payment of rent. As far as Section 13 (6)

is concerned it deals with a situation where the tenant

fails to deposit or pay the amount under Section 13 of

the Act. Prior to Section 13 being substituted in the

year 1983 it contemplated that the court may strike out

the defence against eviction and proceed with the

hearing of the suit. It was this provision which was

interpreted in Shyamcharan Sharma (supra) to mean that

the court still has a discretion and is empowered to

grant extension of time to pay rent under Section 13.

By virtue of the substitution in the year 1983 in

Section 13 (6) in view of the addition of the words

‘appeal or proceeding as the case may be’, on the

failure of the tenant to deposit or pay the amount as

required by Section 13 the court is empowered to strike

out the defence against eviction is made applicable to

an appeal or proceeding by the tenant. An appeal and

proceeding can be disposed off which essentially means

that an Order of Eviction would ordinarily follow as

the appeal or other proceeding by the tenant is against

an Order of Eviction which is already passed. 58

45. Now, as far as a suit for eviction based on ground other than Section 12(1)(a), viz., arrears of rent.

Section 13 expressly does not provide as to what is to

happen if the tenant complies with requirement of

Section 13 as distinct from the failure of the tenant

to comply with Section 13. In this case we are concerned

with the former namely what would be the position if

the tenant faithfully complies with the mandate of

Section 13 and has deposited/ paid the amount. There

is no express intention expressed by the law giver in

this regard in Section 13.

46. In this regard it is again relevant to look at what the law giver is provided in Chapter IIIA. We say this

for the reason that Section 13 has been applicable

mutatis mutandis by virtue of Section 23H as we have

already noticed. However, Section 23F provides as

follows: -

“Section 23F. Duration of stay. - The stay of the operation of the order of eviction passed by a Rent Controlling Authority or by the High Court shall not ensure for a total period of more than six months.”

59

47. Therefore, this provision indicates that despite payment being made by the tenant of the amount in terms

of Section 13 in a revision filed within the meaning

of Section 23H an order of stay of eviction may still

be necessary. In other words, ipso facto, the mere

payment of the amount in terms of Section 13 would not

shelter the tenant who has filed a revision referred

to in Section 23H from being proceeded against in

execution of the decree. The law giver has contemplated

an order of stay being passed in Section 23F with the

restraints regarding the duration of the stay order

which has been declared therein.

48. Thus, the payment of the amount mentioned in Section 13 in a Chapter III proceeding by itself may

not result in a stay of the decree or Order of Eviction.

49. The further question would however arise that in an appeal filed by the tenant against the decree or

Order of Eviction whether on a proper construction of

Section 13 of the Act, whether the Appellate Court can

impose any condition other than that of deposit of the

amount which no doubt is the rent which was being paid.

60 The other way to look at it which is what the landlady

wants us to do is to import in the principle enunciated

in Atma Ram Properties (supra).

50. We have already noticed the decision rendered by a bench of 5 learned Judges of the Madhya Pradesh High

Court decided on 17.02.1977 in S.S. Harischandra Jain

and others (supra), at a point of time when Section 13

was in its erstwhile form. The Court held, inter alia,

as follows:

“(ix) In tenant’s appeal, application of Section 13 is unnecessary because the landlord can execute the decree and recover rent, and if, stay is sought, condition of payment of rent can be imposed. In case of landlord’s appeal against dismissal under Section 13 (5) the tenant will automatically deposit, and go on depositing, rent because of the deterrent in Section 12(3). In landlord’s appeal from dismissal on other ground, there is no special equity in his favour. In case of non-payment of rent his ordinary remedy of a suit for recovery of rent is available to him.

(xi) Section 13 is not a machinery for realisation of rent as an alternative to a, suit for recovery of rent. The object of Section 13 is to put a check on the unscrupulous tenant who would protract litigation without payment of rent. That

61 purpose is served in the suit. But the enquiry is reversed when the suit is dismissed.” (Emphasis supplied)

51. This view, as again noted, has been approved by the still larger bench of the High Court reported in

AIR 1978 MP 143. Apparently, these judgements led to

the substitution of Section 13 in the year 1983 by way

of the legislative intervention and in an appeal or

other proceeding by the tenant against the decree or

Order of Eviction the duty to pay rent came to be

imported. Bearing in mind this legislative history

which can be said to be in recognition of exposition

of law by the High Court, could it be said that the

legislature contemplated the Appellate Court granting

stay of the decree of eviction subject only to the

condition that the amount which represented the rent

which was being paid is paid as a condition.

52. As we have seen, the actual protection which is granted under Section 13 of the Act, is what is provided

in Section 13(6), in the cases at hand.

62

53. Does Section 13 have the effect of operating as a stay of the Decree for Eviction in its own right? The

principal contention of the appellants is that the

principle in Atma Ram (supra) that upon an Order of

Eviction being passed, the erstwhile tenant ceases to

be a tenant and his possession becomes wrongful and,

therefore, he can be called upon to deposit mesne

profit, would not apply, having regard to the contents

of Section 13 of the Act. This is for the reason that

contrary to the definition of the word ‘tenant’ in

Section 2(i), Section 13 reintroduces the concept of

‘tenant’, even after the Order of Eviction is passed

and when the erstwhile tenant seeks to maintain an

appeal or other proceeding against the Decree or Order

of Eviction. He is called upon, furthermore, to deposit

the agreed rent. Once he is called upon to deposit the

agreed rent and he is treated as a tenant by the Law

Giver, by virtue of the unique provisions contained in

Section 13(1) of the Act, the principle in Atma Ram

(supra) would, therefore, not apply. In other words,

despite definition of ‘tenant’ in Section 2(i) of the

Act, excluding a person against whom an Order of

63 Eviction has been passed, he does not stand in the

shoes of a person in wrongful possession, it is

contended.

54. In fact, in Section 13, as far as reference to

rent is concerned, the words used are “an amount

calculated at the rate of rent, at which it was paid”.

The further expressions used are “a sum equivalent to

rent at that rate”. These expressions are used to

denote the amount payable by the person described as

tenant, both before the Order of Eviction is passed and

after the Order of Eviction, during the pendency of

appeal or proceeding, as the case may be. We are making

this observation for the reason that if the words “an

amount calculated at the rate, at which, it was paid

or a sum equivalent to the rent”, is understood as

describing the amount, which is not the rent as such,

but the amount, which, the person was obliged to pay

as a tenant, after the Order of Eviction is passed,

then, it could be said that, what is contemplated is

that, the amount directed to be paid, is treated as not

the rent as such, but the amount equivalent to the

amount or an amount calculated at the rate of rent.

64 Such an amount, being payable, may be reconcilable with

the Order of Eviction, putting an end to the tenancy

and erstwhile tenant becoming a person in illegal

possession. But herein, we may notice that the same

expression is used even for describing the amount

payable during the pendency of proceeding under Section

12. In other words, these words are applicable to

describe the amount payable at all points of time,

including the pendency of the suit, appeal or other

proceedings. To make it even more clear, both, at the

stage when landlord-tenant relationship exists and, at

the stage, when following an Order of Eviction, going

by the definition of ‘tenant’ in Section 2 of the Act,

the erstwhile tenant would cease to be a tenant, the

amount payable in Section 13 is described in the

similar manner. In fact, there is no case as such that

the amount which is paid by the tenant in Section 13

is anything but the agreed rent. However, for reasons

which follow, it will not advance the case of the

appellants.

55. As far as the aspect about the former tenant, even after the Order of Eviction being referred to as a

65 tenant, even when he maintains an appeal against a

Decree/Order of Eviction is concerned, we would think

that it can be a legislative device to aptly describe

the person in question devised by the Legislature. In

this regard, the more important question is, whether

after the Order of Eviction is passed, the erstwhile

tenant would remain a tenant in law. The tenant begins

his innings ordinarily as a contractual tenant. In the

case of a contractual tenant, upon the expiry of the

lease, he is under the Transfer of Property Act and,

in accordance with the contract, duty-bound to vacate

the premises and deliver possession to the landlord.

Failure on his part to do so, would expose him to an

action for mesne profits, on the basis that his

continuance after the period and contrary to the

contract, would be wrongful. In the case of a statutory

tenant, which, undoubtedly, the tenant was, the mere

expiry of the contractual lease, does not result in the

tenancy coming to an end under the laws relating to the

statutory tenancy. It is with the Order of Eviction,

which is passed, that the erstwhile tenant ceases to

be the tenant. After the Order of Eviction is passed,

66 the law deprives the erstwhile tenant of his status of

tenancy. The definition of ‘tenant’, accordingly, in

Section 2(i) of the Act, is a legislative recognition

of this position. Now, the Act enables the filing of

appeal or other proceeding by the erstwhile tenant. The

law prescribes the period of limitation. Does it mean

that the possession of the erstwhile tenant or rather

his occupation of the premises, after the Order of

Eviction, is not wrongful? What will be the position,

if he prefers an appeal, after a long delay and delay

is condoned? Can it be said that during the period

delay, at any rate, that the erstwhile tenant sheds his

character as illegal occupant? We would think that with

the passing of Decree or Order of Eviction, the

erstwhile tenant, no longer, remains a tenant. He

continues to occupy the premises, which, in law, is

wrongful. Under the law, generally, continued

occupation of a tenant, after the expiry of the lease,

may not make him a trespasser, as his original entry

was lawful. For the purpose of mesne profits, however,

whether it be under the general law or under the Rent

Statute, once, the tenancy itself comes to an end,

67 which in the case of statutory tenancy occurs with the

passing of the Order of Eviction and, in the case of

the contractual tenancy, upon the expiry of the lease,

the possession of the erstwhile tenant, indeed, becomes

wrongful. The fact that the law permits the filing of

an appeal or other proceeding, will not detract from

the aforesaid position.

56. This position is self-evident from the decision

in Atma Ram (supra). The Judgment in Atma Ram (supra)

makes it clear that the erstwhile statutory tenant

would become an unauthorised occupant upon the passing

of the Order by the original Forum. This Court has

further held that fact that the Order of Eviction has

been challenged in an appeal or revision and it is

confirmed at a later point, will not enable the

erstwhile tenant to contend that he would remain a

tenant even after the Decree/Order of Eviction.

57. Once this position at law is kept in mind, the impact of Section 13 of the Act, will become clear. We

have already noticed that the actual protection, which

is provided in Section 13 of the Act, as far as the

cases we are concerned with, is contained in Section 68 13(6) of the Act. Upon the tenant, as described in

Section 13, paying the amounts as provided therein, the

tenant is allowed to, inter alia, prosecute the appeal

or other proceeding. The failure to comply with Section

13, will result in the consequences, which are provided

therein. Since, we are concerned here with the

consequences of tenant acting in conformity of Section

13 of the Act, apart from noticing, what we have already

indicated, we would examine, whether it has the effect,

which is canvassed for by the appellants.

58. We are of the view that even though Section 13

does refer to the erstwhile tenant as a tenant and it

obliges him to deposit throughout the proceedings, the

amounts, which can be treated as the rent being paid,

which would be contractual rent or even the rent fixed

as the standard rent, this does not, by itself, alter

the effect of the Decree/Order of Eviction passed by

the Court, by which, he stood deprived of the status

of a tenant. The filing of an appeal or other proceeding

by the tenant, does not make the Decree inexecutable.

The preferring of an appeal or other proceeding, would

not bring about a stay of the proceedings based on the

69 Decree or Order of Eviction. The payment of the amounts

under Section 13(1) or Section 13(2) of the Act, does

not, by itself, bring about the stay of the Decree or

Order of Eviction. The net result is, the principle in

law and, as recognised in Section 2(i) of the Act, and,

as interpreted in Atma Ram (supra), that with the

passing of the Order of Eviction by the Court, the

possession of erstwhile tenant, becoming wrongful, will

apply. By making the payments, contemplated in Section

13(1) or Section 13(2) of the Act, the erstwhile

tenant, who stood deprived of the status of a tenant,

does not regain the said status by mere reason of the

fact that in Section 13 of the Act, he is referred to

as the tenant. The position of the erstwhile tenant

under the Act, going by the definition in Section 2(i)

of the Act, will continue to hold the field, even after

an appeal or other proceeding is maintained by him. Therefore, Section 13 of the Act, in our view, despite

the unique provision contained therein, does not affect

the position at law, which stands declared in Atma Ram

(supra). Undoubtedly, in keeping with the view

expressed by the larger Bench decisions of the High

70 Court, which we have referred to, the Legislature

wanted to ensure that even during the appeal filed by

the tenant, inter alia, he would continue to pay the

agreed rent.

59. The erstwhile tenant, such as the appellants in these cases, despite making payment, in accordance with

Section 13 of the Act, would not be protected from

being evicted in terms of the Decree/Order of Eviction

during the pendency of the appeal or proceeding. It is

open to the appellant, inter alia, in challenging the

Decree/Order of Eviction to seek stay of the

Decree/Order of Eviction. It is then that the Appellate

Court can exercise its powers under Order XLI Rule 5

of the CPC.

60. We have found reinforcement in Section 23F of the Act falling in Chapter IIIA, which also contemplates

Orders of Stay being passed, even though Section 13 has

been made applicable by virtue of Section 23H. As

regards the power of the Appellate Court, to grant a

stay, it is clear that it is open to the Appellate

Court, to impose such condition, as it thinks fit. It

can issue directions, as held by this Court in Supermax 71 International (supra). Once we proceed on the basis

that with the Decree of Eviction being passed, the

erstwhile tenant becomes an unauthorised occupant and

he makes himself liable to pay mesne profits for his

continued occupation, such an erstwhile tenant can,

indeed, be called upon to pay mesne profits.

Undoubtedly, there is power with the Appellate Court,

in this regard.

61. We have, no doubt, noticed the view taken by the larger Bench of the High Court (which, in fact, paved

the way for the substitution of Section 13 in the year

1983) that the Court, after finding that Section 13,

with which it was concerned, did not contemplate any

duty on the part of the tenant to deposit the agreed

rent, in an appeal filed by him, did observe that in

such a scenario, it will be open to the landlord to

execute the Decree and if the tenant files an

application under Order XLI Rule 5 of the CPC, the

tenant can be asked to deposit the rent. No doubt, the

legislative intervention in 1983 through substitution

of Section 13, may have been inspired by the judicial

exposition and, therefore, one of the principles of

72 interpretation being that the Legislature must be

treated as having in mind the law as interpreted by the

Court to be implemented, thus, it could be urged that

when an application is filed under Order XLI Rule 5,

even after the substitution of Section 13, when the

tenant is called upon to deposit the agreed rent, then,

even in the matter of imposing condition under Order

XLI Rule 5, the tenant cannot be worse off than when

Section 13 was in its earlier avatar. In other words,

with the deposit of the agreed rent, there would be no

occasion to deposit any further amount, even under

Order XLI Rule 5. We must, however, bear in mind the

fact that the law, as has been declared in Atma Ram

(supra), and as has been followed in Supermax

International (supra), in the manner already referred

to. That is, with the Decree of Eviction being passed,

the erstwhile statutory tenant becomes an unauthorised

occupant. The fact that the law permits the defendant

to file an appeal or to take other proceedings, will

not clothe him with rights as a tenant. The fact that

the finality of the Decree of Eviction is attained at

a later stage, will not be sufficient to extricate him

73 from his position as an unauthorised occupant in the

interregnum. This has the inevitable consequence that

during such interregnum, the erstwhile tenant, being

in the position of an unauthorised occupant, he becomes

liable to pay mesne profits. Once this position is

clear, then, the necessary corollary is, even after the

substitution of Section 13, it would be open to the

Appellate Court to impose the condition that appellant

seeking to contest the Decree of Eviction, shall

deposit a reasonable sum, which is not to be limited

to the agreed rent. This position is also better

understood in the light of the plight of the landlords,

who are forced to wait for long, the realisation of the

fruits of the Decree for Eviction, which they have

obtained. In fact, this aspect, as to the entitlement

of the landlord for an amount in excess of the agreed

rent, in the light of the Decree of Eviction, as such,

was not considered by the larger Bench of the High

Court. At any rate, in the light of the Judgments of

this Court, there cannot be any dispute about the

principle that upon a Decree of Eviction being passed,

the erstwhile tenant becomes an unauthorised occupant

74 and remains one thereafter during the entire

proceedings. The fact that there is power to fix

standard rent cannot affect this position. In fact, the

respondent would point out that after the eviction is

ordered even the power to fix standard rent ceases as

the tenancy comes to an end.

62. It is undoubtedly true that the existence of power under Order XLI Rule 5 of the CPC, is not to be confused

with the exercise of its power by an Appellate Court.

That there is power with the Appellate Court, may not

enable it to Order any unreasonable amount or reach a

windfall to the landlord. The power is to be exercised

on a careful consideration of the facts of each case.

It will include the quantum of agreed rent, which the

tenant is paying under Section 13 of the Act. It will

consider whether the said sum is the result of any

fixation of standard rent. If so, what is the point of

time, at which, the agreed rent was arrived at, the

nature of the premises and all other relevant facts.

It may include a case where the Appellate Court, on a

perusal of the impugned Judgment, is convinced, prima

facie, no doubt, that the Decree for Eviction is

75 palpably insupportable, in which case, it may grant a

stay, without calling upon the tenant to pay any sum

in excess of amount fixed in Section 13 of the Act.

63. We are unable to accept the appellants case that Section 13 of the Act, being a special law, the power

under Order XLI Rule 5, cannot be exercised to direct

deposit or payment of mesne profits. Compliance with

Section 13 by the appellants, does not, as found by us,

amount to a stay of the Decree for Eviction. The power

of the Appellate Court to impose conditions for staying

the Decree, cannot be confined by the dictate in

Section 13 of the Act, to the appellants/tenants, to

deposit the agreed rent, particularly, having regard

to the time consumed in litigation and, more

importantly, the impact of the Decree of Eviction,

depriving the appellant of his status as a tenant.

64. The upshot of the above discussion is that we reject the contention of the appellants that Section

13 of the Act will detract from the principle in Atma

Ram (supra) and Supermax International (supra) being

available to the cases under the Act.

76

65. Coming to the facts, the rent being paid for 100 square feet of non-residential accommodation by one of

the appellants is Rs.622/-, fixed in 1975. In the other

case, the rent canvassed by the appellant, as being the

agreed rent, was a monthly rent of Rs.847/-, fixed in

the year 1975. The premises in question is also non-

residential and it consists of 150 square feet. There

is no reference to the rent being fixed in proceedings

for fixing the standard rent. The Suit was filed in the

year 2009. The Decree for Eviction was passed in the

year 2013. The First Appellate Court dismissed the

appeal filed by the appellants on 25.03.2014. The

Second Appeal was filed in the year 2014. The impugned

Orders came to be passed on 17.03.2020 and 25.08.2021

at the stage of second appeal when two courts have

found against the appellants. The amount has been fixed

at Rs.18,000/- per month. The amount has been fixed

on the basis of the Report submitted by the Rent

Controlling Authority, who was asked to report

regarding the market rate of the accommodation in

question. The complaint of the appellant is that the

Rent Controlling Authority has tendered its Report and,

77 while doing so, adequate opportunity was not provided

and the materials placed were not considered and that

the amount is unreasonable. It is said to be based only

on the Panchnama prepared by the Revenue Officer. The

High Court has found that the premises are located in

a famous commercial place and the rent of Rs.847/- per

month was fixed in the year 1975.

66. We do not think that the appellants should be permitted to challenge the quantum, once we have

answered the legal issues flowing from Section 13,

against the appellants. It would appear from the

written submission that the appellants have deposited

certain sums in execution of the orders. The

appellants will be entitled to adjust the said amount

in complying with the impugned orders. The amount of

Rs.18000/- will subsume the amount paid/payable under

Section 13 of the Act.

67. We may, however, notice the following views

expressed by this Court in Supermax International

(supra):

“79. Before concluding the decision one more question needs to be addressed: what

78 would be the position if the tenant's appeal/revision is allowed and the eviction decree is set aside? In that event, naturally, the status quo ante would be restored and the tenant would be entitled to get back all the amounts that he was made to pay in excess of the contractual rent. That being the position, the amount fixed by the court over and above the contractual monthly rent, ordinarily, should not be directed to be paid to the landlord during the pendency of the appeal/revision. The deposited amount, along with the accrued interest, should only be paid after the final disposal to either side depending upon the result of the case.

80. In case for some reason the court finds it just and expedient that the amount fixed by it should go to the landlord even while the matter is pending, it must be careful to direct payment to the landlord on terms so that in case the final decision goes in favour of the tenant the payment should be made to him without any undue delay or complications.”

68. Thus, in the facts of this case, we would think that the direction to pay the entire amount, may

require modification. Equally, we are of the view that

some time must be granted to deposit the amount.

69. Accordingly, in modification of the impugned

Orders, we order as follows:

79

a. Appellants are granted five weeks to deposit the

entire amount in terms of the impugned orders after

adjusting the amounts already deposited/paid on

the basis of the orders of the execution court.

The amounts will also subsume the amounts

paid/payable under Section 13 of the Act.

b. We further order that the respondent in the appeals

shall be permitted to withdraw the rent at the rate

of Rs.10,000/- per month from the amount which is

deposited;

c. The respondent shall be permitted to withdraw at

the rate of Rs.10,000/- per month from the amount

to be deposited by the appellants, on such terms

to be fixed by the High Court;

70. Save as aforesaid, we affirm the impugned Orders. The appeals are partly allowed as above. There will be

no order as to costs.

………………………………………………………………………J. (K.M JOSEPH)

………………………………………………………………………J. (PAMIDIGHANTAM SRI NARASIMHA) NEW DELHI;

FEBRUARY 22, 2022.

80