Sayeda Akhtar Vs. Abdul Ahad
EmailAppeal: Civil Appeal No. 5010 of 2003
(Arising out of S.L.P. (C) No. 13938 of 2002)
(From the Judgment and Order dated 31.1.2002 of the Madhya Pradesh High Court in S.A.No. 123 of 1990)
(Arising out of S.L.P. (C) No. 13938 of 2002)
(From the Judgment and Order dated 31.1.2002 of the Madhya Pradesh High Court in S.A.No. 123 of 1990)
Petitioner: Sayeda Akhtar
Respondent: Abdul Ahad
Apeal: Civil Appeal No. 5010 of 2003
(Arising out of S.L.P. (C) No. 13938 of 2002)
(From the Judgment and Order dated 31.1.2002 of the Madhya Pradesh High Court in S.A.No. 123 of 1990)
(Arising out of S.L.P. (C) No. 13938 of 2002)
(From the Judgment and Order dated 31.1.2002 of the Madhya Pradesh High Court in S.A.No. 123 of 1990)
Judges: V.N. Khare, CJI, & S.B. Sinha, J.
Date of Judgment: Jul 18, 2003
Appearances:
Mr. Anis Ahmed Khan, Advocate for the Appellant
Mr. B.S. Banthia, Advocate for the Respondent
Head Note:
RENT CONTROL AND EVICTION
M.P. Accommodation Control Act, 1961
Section 13 – Tenancy – Eviction of tenant on the ground of default in payment of rent as also for creating nuisance – Tenant committing defaults in payment of rent for November 1985 and May & June 1988 – Landlord filing suit for eviction on the ground of default of rent and also nuisance – Tenant neither depositing the rent within the stipulated time nor moving any application for extension of time – Trial Court decreeing the suit and passing an order of eviction – Trial Court however not framing any issue with regard to the ground of nuisance though parties adduced evidence and advanced their submissions – Appellate Court formulating two specific questions on default and nuisance and answering same in favour of the landlord thus upholding the decree of eviction – High Court however reversing the decision holding that the appellate court committed an error of records and that the default committed by the tenant deserved to be condoned and the court below should have granted more time for deposit of rent – Justification. Allowing the appeal held that courts should not extend time or condone the delay on mere sympathy but should use discretion judiciously and on the basis of sufficient cause. High Court on second appeal could not have interfered with the concurrent findings of fact without sufficient and just reasons. (Paras 6,9 10 and 12)
Cases Reffered:
1. Nasiruddin and Others v. Sita Ram Agarwal (JT 2003 (2) SC 56) (Para 7)
2. Shyamcharan Sharma v. Dharamdas ((1980) 2 SCC 15) (Para 7)
2. Shyamcharan Sharma v. Dharamdas ((1980) 2 SCC 15) (Para 7)
JUDGEMENT:
ORDER
1. Leave granted.
2. Heard counsel for the parties.
3. With the consent of the parties, we dispose of this appeal finally at this stage.
4. The appellant herein is the landlord of premises bearing no. 505, Ward No.15. Arif Nagar. Bhopal, whereas the respondent herein is the tenant. The landlord filed a suit for eviction on the grounds of default in payment of rent as well as nuisance. Admittedly, the tenant neither deposited the rent within the stipulated period nor any application was moved for extension of time to deposit the same. Consequently, the trial court decreed the suit and passed an order of eviction. The first appellate court affirmed trial court’s decree. However, the High Court allowed the second appeal and reversed the decree. Consequently, the suit for eviction stood dismissed. The High Court was of the view that default committed by the tenant deserved condonation and the court below ought to have given further time to deposit the arrears of rent. It is against the said judgement and order that the appellant-landlord is in appeal before us.
5. Section 13 of the M.P. Accommodation Control Act, 1961 reads as under:
” 13.(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 on him or within such further time as the court may, on an application made to it, allow in this behalf, deposit in the court to pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent there to 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 15 of each succeeding month a sum equivalent to the rent at that rate.
(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.”
6. A bare perusal of the aforementioned provision would clearly go to show that although the court has the jurisdiction to extend the time for depositing the rent both for the period during which the tenant had defaulted as well as the period subsequent there to but therefor an application is to be made. The provision requiring an application to be made is indisputably necessary for the purpose of showing sufficient cause as to why such deposit could not be made with in the time granted by the court . The court does not extend time or condone the delay on mere sympathy. It will exercise its discretion judicially (Judiciously ?) and on a finding of existence of sufficient cause.
7. In Nasiruddin and Others v. Sita Ram Agarwal1, this Court noticed the said provision as well as the decision in Shyamcharan Sharma v. Dharamdas2 and observed that the court has been conferred power to extend the time for deposit of rent but on an application made to it.
8. The finding of the court of appeal in this behalf is :
“The appellant has not moved any application before the court below for condoning the delay in depositing of rent by this court the relevant application had already been dismissed. Therefore, the appellant is not entitled to the protection of sections 12(i)(a), 12(iii) and 13(v) as has been laid down in 1989 M.P.R.C.J. 155.”
9. The High Court in its impugned judgment did not point out as to how the court of appeal committed an error of records in arriving at the said finding. Admittedly, there had been two defaults i.e. rent for the month of November 1985 and rents for the months of May and June 1988. The High Court purported to have recorded that the appellant had applied for condonation of delay in payment of rent on 5.2.1990 in relation to default to deposit rent for the month on November 1985 and for the months of May and June 1988. An application for condonation of delay could not have been entertained on 5.2.1990 for commission of default in depositing the rent. We, therefore, are of the opinion that the High Court was not correct in interfering with the findings of fact arrived at by the first appellate court.
10. Furthermore, as indicated hereinbefore, the plaintiff sought for a decree for eviction against the defendant also on the ground of commission of nuisance. It is true that the trial court did not frame any specific issue therefor but a bare perusal of the judgment passed by the learned trial court will clearly demonstrate that the parties were aware there about and not only adduced evidence in that behalf but also advanced their respective submissions in relation there to. The Court of appeal formulated two specific questions: for determination of the appeal, one of them being:
“Whether the appellant had created nuisance in the premises in question”?
It was held:
“On the point of nuisance, though, no issue was framed by the lower court yet it is clear on the basis of relevant pleadings and evidence produced that the parties were well familiar with existence of the said issues. Under the circumstances, in face of the want of framing of issues, the prejudice was not caused nor the proceedings were vitiated, it is not proper to remand the case in view of the decision of the Supreme Court reported as A.I.R. 1963 SC 884.”
11. Thereafter the court of appeal considered the pleadings of the parties as also the materials brought on record by the parties to the suit on the said issue and held :
“The evidence produced by the respondent proves that the appellant had created nuisance because quarrelling falls under the mischief of nuisance (AIR 1954 Madras 514.)”
12. In its impugned judgment the High Court did not advert to the said question at all. It set aside the aforementioned findings purported to be on the ground that no issue was framed by the trial court on the point of nuisance. The High Court in the second appeal could not have without sufficient and just reason interfered with the concurrent findings of fact of the courts below. We are, therefore, of the opinion that the judgment of the High Court cannot be sustained.
13. In view of the matter, the appeal succeeds and is allowed. The judgment under challenge is set aside and the decree of the trial court is restored.
14. There shall be no order as to costs.
1. Leave granted.
2. Heard counsel for the parties.
3. With the consent of the parties, we dispose of this appeal finally at this stage.
4. The appellant herein is the landlord of premises bearing no. 505, Ward No.15. Arif Nagar. Bhopal, whereas the respondent herein is the tenant. The landlord filed a suit for eviction on the grounds of default in payment of rent as well as nuisance. Admittedly, the tenant neither deposited the rent within the stipulated period nor any application was moved for extension of time to deposit the same. Consequently, the trial court decreed the suit and passed an order of eviction. The first appellate court affirmed trial court’s decree. However, the High Court allowed the second appeal and reversed the decree. Consequently, the suit for eviction stood dismissed. The High Court was of the view that default committed by the tenant deserved condonation and the court below ought to have given further time to deposit the arrears of rent. It is against the said judgement and order that the appellant-landlord is in appeal before us.
5. Section 13 of the M.P. Accommodation Control Act, 1961 reads as under:
” 13.(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 on him or within such further time as the court may, on an application made to it, allow in this behalf, deposit in the court to pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent there to 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 15 of each succeeding month a sum equivalent to the rent at that rate.
(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.”
6. A bare perusal of the aforementioned provision would clearly go to show that although the court has the jurisdiction to extend the time for depositing the rent both for the period during which the tenant had defaulted as well as the period subsequent there to but therefor an application is to be made. The provision requiring an application to be made is indisputably necessary for the purpose of showing sufficient cause as to why such deposit could not be made with in the time granted by the court . The court does not extend time or condone the delay on mere sympathy. It will exercise its discretion judicially (Judiciously ?) and on a finding of existence of sufficient cause.
7. In Nasiruddin and Others v. Sita Ram Agarwal1, this Court noticed the said provision as well as the decision in Shyamcharan Sharma v. Dharamdas2 and observed that the court has been conferred power to extend the time for deposit of rent but on an application made to it.
8. The finding of the court of appeal in this behalf is :
“The appellant has not moved any application before the court below for condoning the delay in depositing of rent by this court the relevant application had already been dismissed. Therefore, the appellant is not entitled to the protection of sections 12(i)(a), 12(iii) and 13(v) as has been laid down in 1989 M.P.R.C.J. 155.”
9. The High Court in its impugned judgment did not point out as to how the court of appeal committed an error of records in arriving at the said finding. Admittedly, there had been two defaults i.e. rent for the month of November 1985 and rents for the months of May and June 1988. The High Court purported to have recorded that the appellant had applied for condonation of delay in payment of rent on 5.2.1990 in relation to default to deposit rent for the month on November 1985 and for the months of May and June 1988. An application for condonation of delay could not have been entertained on 5.2.1990 for commission of default in depositing the rent. We, therefore, are of the opinion that the High Court was not correct in interfering with the findings of fact arrived at by the first appellate court.
10. Furthermore, as indicated hereinbefore, the plaintiff sought for a decree for eviction against the defendant also on the ground of commission of nuisance. It is true that the trial court did not frame any specific issue therefor but a bare perusal of the judgment passed by the learned trial court will clearly demonstrate that the parties were aware there about and not only adduced evidence in that behalf but also advanced their respective submissions in relation there to. The Court of appeal formulated two specific questions: for determination of the appeal, one of them being:
“Whether the appellant had created nuisance in the premises in question”?
It was held:
“On the point of nuisance, though, no issue was framed by the lower court yet it is clear on the basis of relevant pleadings and evidence produced that the parties were well familiar with existence of the said issues. Under the circumstances, in face of the want of framing of issues, the prejudice was not caused nor the proceedings were vitiated, it is not proper to remand the case in view of the decision of the Supreme Court reported as A.I.R. 1963 SC 884.”
11. Thereafter the court of appeal considered the pleadings of the parties as also the materials brought on record by the parties to the suit on the said issue and held :
“The evidence produced by the respondent proves that the appellant had created nuisance because quarrelling falls under the mischief of nuisance (AIR 1954 Madras 514.)”
12. In its impugned judgment the High Court did not advert to the said question at all. It set aside the aforementioned findings purported to be on the ground that no issue was framed by the trial court on the point of nuisance. The High Court in the second appeal could not have without sufficient and just reason interfered with the concurrent findings of fact of the courts below. We are, therefore, of the opinion that the judgment of the High Court cannot be sustained.
13. In view of the matter, the appeal succeeds and is allowed. The judgment under challenge is set aside and the decree of the trial court is restored.
14. There shall be no order as to costs.
