Wednesday, 21 June 2017

When court should not strike off defence for non payment of rent amount?

 In Shyamcharan Sharma (supra), the Supreme Court while
considering Section 13(6) of the Act of 1961 has held in no
uncertain terms that Section 13(6) of the Act of 1961 is
discretionary in nature and court has power under Section 13(6) to
condone delay in depositing rent and condensely crystallized as
under: -
"4. ... 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 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 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."
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Art. 227) No.152 of 2016
Pawan Verma,
V
Sanjay Kumar Hanumanta, 
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 15/11/2016
Citation: AIR 2017(NOC) 138 Chh

1. The petitioner / plaintiff filed a suit for ejectment and arrears of rent
against the respondent / defendant and also filed an application
under Section 13(6) of the Chhattisgarh Accommodation Control
Act, 1961 (for short 'the Act') stating inter alia that the defendant is
not paying rent after receipt of summon of the trial Court and not
even paying current rent and therefore, the defence of the
defendant be struck off under the said provision. The trial Court by
its impugned order dated 9-12-2015 held that there is serious
dispute of relationship of landlord and tenant between the parties,
issue has also been framed in that regard and question of
relationship would be decided between the plaintiff and the
defendant only after recording evidence and therefore the defence
of the defendant cannot be struck off at this stage, and rejected the
application filed under Section 13(6) of the Act. Feeling aggrieved
and dissatisfied against the order rejecting the application under
Section 13(6) of the Act, this instant writ petition has been preferred
by the petitioner / plaintiff under Article 227 of the Constitution of
India.
2. Mr. Anand Shukla, learned counsel appearing for the petitioner /
plaintiff, would submit that the provision of Section 13(6) of the Act
is mandatory in nature and even if the tenant is disputing the
relationship of landlord and tenant between them, yet he has to
comply the provision contained in Section 13(3) of the Act and
continue to deposit the rent till the relationship is finally decided
between the parties by that Court and therefore the trial Court is
absolutely unjustified in rejecting the application under Section
13(6) of the Act. He would rely upon a decision of the Madhya
Pradesh High Court in the matter of Smt. Sona Bai and others v.
Khoob Chand1
 to buttress his submission.
3. On the other hand, Mr. Manoj Paranjpe, learned counsel appearing
for the respondent / defendant, would submit that the plaintiff's
brother Janak Lal Verma has filed suit against the plaintiff (i.e. his
brother) for declaration of title and the respondent herein /
defendant is tenant of Janak Lal Verma. He would further submit
that the defendant is paying rent continuously to Janak Lal Verma
and has also filed documents showing the details of deposit of rent
to Janak Lal Verma and therefore if the defendant is directed to
deposit rent, it will be causing great difficulty as he had already
1 AIR 1993 MP 173
paid all the rent due to Janak Lal Verma. He would also submit
that the provision of Section 13(6) of the Act is not mandatory and
is rather discretionary and in the fact situation of the present case,
the trial Court is absolutely justified in exercising the discretion
rejecting the application filed under Section 13(6) of the Act
whereas, the dispute of landlord-tenant between the parties is
pending and the suit between the petitioner herein / plaintiff and his
brother Janak Lal Verma to whom the respondent herein /
defendant is paying rent is also pending which has been duly
demonstrated before the trial Court.
4. I have heard learned counsel for the parties, perused the order
impugned and considered the rival submissions made on behalf of
the parties.
5. In order to decide the dispute, it would be appropriate to notice
Section 13(6) of the Act which reads as follows: -
"(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."
6. A careful perusal of the aforesaid provision would show that the
Legislature has used the word 'may' by giving discretion to the trial
Court even if the tenant fails to deposit or pay the amount as
required by Section 13 of the Act. It is discretionary for the trial
Court either to struck off the defence or may or may not struck off
the defence, as such, the nature of order to be passed by the trial
Court on that application is purely discretionary.
7. The question as to whether the provision of Section 13(6) of the Act
is discretionary or not came up before a Full Bench of the Madhya
Pradesh High Court in the matter of Jagdish Kapoor v. The New
Education Society2
 in which the Full Bench of the Madhya
Pradesh High Court has clearly answered holding that Section
13(6) of the Act is not mandatory and Court has discretion which
has to be exercised judicially having regard to the facts and
circumstances of each case and finally, answered the reference
holding that the provision of Section 13(6) of the Act is not
mandatory. In paragraphs 11 and 12 of the order, the Full Bench
has crystallized continuously as under: -
"11. In our judgment, under section 13 (6) it is not
compulsory for the Court to strike out the defence on
finding that the tenant has failed to deposit or pay any
amount as required by section 13. The Court has
discretion in the matter of striking out of the defence
and that discretion has to be exercised judicially
having regard to the facts and circumstances of each
case.
12. The view expressed by Golvalker, Bhargava and
Surajbhan JJ, in the cases referred to earlier and by
Krishnan J, in Laxmi Kumar Baori's case3
 that section
13 (6) is mandatory, with all respects to the learned
Judges, is not correct."
8. It is also well settled law that if there is a dispute as to relationship
of landlord and tenant and to whom the amount is payable, the trial
Court may direct for deposit of rent till the dispute of landlord-tenant
relationship is finally decided, before the trial Court which has also
2 1967 M.P.L.J. 837
3 Civil Revn. No.44 of 1966 decided on 2-12-1966 (Gwalior)
been held in Smt. Sona Bai (supra).
9. In the matter of Kamla Devi (Smt) v. Vasdev4
, the Supreme Court
while dealing with the Delhi Rent Control Act, 1958 has held that
the provisions contained in Section 15(7) of the said Act, which
gives a discretion to the Rent Controller to strike out the defence,
are not mandatory provisions for striking out the defence of the
tenant against eviction and observed as under in paragraph 23: -
"23. We are unable to uphold the contention of the
appellant that the case of Ram Murti v. Bhola Nath5

was wrongly decided and reliance was wrongly placed
in that case on the decision of a Bench of three Judges
of this Court in the case of Shyamcharan Sharma v.
Dharamdas6
. In our view, sub-section (7) of Section
15 of the Delhi Rent Control Act, 1958 gives a
discretion to the Rent Controller and does not contain
a mandatory provision for striking out the defence of
the tenant against eviction. The Rent Controller may
or may not pass an order striking out the defence. The
exercise of this discretion will depend upon the facts
and circumstances of each case. If the Rent Controller
is of the view that in the facts of a particular case the
time to make payment or deposit pursuant to an order
passed under sub-section (1) of Section 15 should be
extended, he may do so by passing a suitable order.
Similarly, if he is not satisfied about the case made out
by the tenant, he may order the defence against
eviction to be struck out. But, the power to strike out
the defence against eviction is discretionary and must
not be mechanically exercised without any application
of mind to the facts of the case."
4 (1995) 1 SCC 356
5 (1984) 3 SCC 111
6 (1980) 2 SCC 151
10. In Shyamcharan Sharma (supra), the Supreme Court while
considering Section 13(6) of the Act of 1961 has held in no
uncertain terms that Section 13(6) of the Act of 1961 is
discretionary in nature and court has power under Section 13(6) to
condone delay in depositing rent and condensely crystallized as
under: -
"4. ... 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 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 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."
11. In the case in hand, the trial Court has clearly recorded a finding
that the case of the defendant is that he is paying rent to the
plaintiff's brother and suit is also pending between the petitioner /
plaintiff and his brother and details of rent has also been filed, and
in the circumstances, the trial Court has recorded a finding that it
would be inappropriate to strike out the defence of the respondent /
defendant. It has not been shown that the trial Court has not
exercised the discretion judicially and it has been exercised
arbitrarily, capriciously or perversely. Therefore, once the
discretion has been exercised by the trial Court judicially, this Court
in exercise of jurisdiction under Article 227 of the Constitution of
India would not like to interfere.
12.Applying its earlier decision in the matters of Surya Dev Rai v.
Ram Chander Rai7
 and Shalini Shyam Shetty v. Rajendra
Shankar Patil8
, the Supreme Court in the matter of Sameer
Suresh Gupta through PA Holder v. Rahul Kumar Agarwal9
 has
held that supervisory jurisdiction under Article 227 of the
Constitution of India is exercised for keeping the subordinate courts
within the bounds of their jurisdiction. When a subordinate court
has assumed a jurisdiction which it does not have or has failed to
exercise a jurisdiction which it does have or the jurisdiction though
available is being exercised by the court in a manner not permitted
by law and failure of justice or grave injustice has occasioned
thereby, the High Court may step in to exercise its supervisory
jurisdiction. It has also been held that supervisory jurisdiction or
certiorari jurisdiction is not available to correct mere errors of fact or
of law unless the following requirements are satisfied : (i) the error
is manifest and apparent on the face of the proceedings such as
when it is based on clear ignorance or utter disregard of the
provisions of law, and (ii) a grave injustice or gross failure of justice
7 (2003) 6 SCC 675
8 (2010) 8 SCC 329
9 (2013) 9 SCC 374
has occasioned thereby. The power to issue a writ of certiorari and
the supervisory jurisdiction are to be exercised sparingly and only
in appropriate cases where the judicial conscience of the High
Court dictates it to act lest a gross failure of justice or grave
injustice should occasion.
13. In view of the above, the writ petition deserves to be dismissed and
is accordingly dismissed. However, the trial Court is directed to
expedite the trial and conclude it expeditiously preferably within a
period of six months from the date of receipt of a copy of this order.
No order as to cost(s).

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